Exhibit 2
AGREEMENT
by and between
NUTRAMAX PRODUCTS, INC.
AND
XXXXXXX X. XXXXXX
DATED AS OF
OCTOBER 14, 1997
AGREEMENT, dated as of October 14, 1997 (the "Agreement"), by and between
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NutraMax Products, Inc., a Delaware corporation (the "Company") and Xxxxxxx X.
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Xxxxxx (the "Stockholder").
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WHEREAS, the Company, Cape Xxx Investors, L.L.C. ("Cape Xxx Investors") and
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the Stockholder desire to effect a series of transactions including an offer by
the Company to repurchase a number of shares to be determined, up to 450,000
shares, of the issued and outstanding Common Stock, par value $.001 per share,
of the Company (the "Common Stock") pursuant to a tender offer as further
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described herein (the "Tender Offer") and the purchase by the Stockholder of
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shares of Common Stock (the "Stock Purchase"), the proceeds from which shall be
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used to fund, in part, the consideration paid in the Tender Offer by the
Company;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
TENDER OFFER AND STOCK PURCHASE
Section 1.1. Tender Offer. (a) Subject to the provisions of this
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Agreement, as promptly as practicable, the Company shall commence the Tender
Offer, which shall be an issuer tender offer to purchase a number of shares, up
to 450,000 shares, of Common Stock to be determined by the Company (the "Offer
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Number") at a price per share not in excess of a per share price, and not less
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than a per share price, determined by the Company (the price range from such
maximum to minimum price being referred to herein as the "Per Share Price
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Range"), net to the seller in cash. Pursuant to the Tender Offer, the Company
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will determine the single per share price, within the Per Share Price Range, net
to the seller in cash (such price being referred to as the "Per Share Purchase
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Price"), that it will pay for shares properly tendered pursuant to the Tender
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Offer, taking into account the number of shares so tendered and the prices
specified by the tendering stockholders. The Company will select the lowest Per
Share Purchase Price that will allow it to buy the Offer Number of shares of
Common Stock (or such lesser number of shares as are properly tendered and not
withdrawn at prices within the Per Share Price Range) (such number of shares
being the "Purchased Number"). All shares of Common Stock properly tendered at
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prices at or below the Per Share Purchase Price and not withdrawn will be
purchased at the Per Share Purchase Price, subject to the terms and conditions
of the Tender Offer.
(b) On the date required under applicable rules, the Company shall file
with the Securities and Exchange Commission (the "Commission") an Issuer Tender
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Offer Statement on Schedule 13E-4 (together with all amendments and supplements
thereto, the "Tender Offer Statement") with respect to the Tender Offer. The
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Tender Offer Statement shall contain the Offer to Purchase and such other
information and exhibits as are required by law. The Tender Offer Statement
will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Company agrees
promptly to correct any information in the Tender Offer Statement that shall be
or shall have become false or misleading in any material respect and the Company
further agrees to take all steps necessary to cause the Tender Offer Statement
as so corrected to be filed with the Commission and disseminated to the
stockholders of the Company as and to the extent required by applicable federal
securities laws.
(c) Subject to the terms and conditions thereof, the Tender Offer shall
expire at midnight Eastern time on the date that is 20 business days from the
date the Tender Offer is first published, sent or given to holders of Common
Stock; provided, however, that the Company may extend the Tender Offer (i) if,
at the previously scheduled expiration date of the Tender Offer, any of the
conditions to the Company's obligations to accept for payment, and pay for,
shares of Common Stock shall not have been satisfied or waived, until such time
as such conditions are satisfied or waived, (ii) for any period required by any
rule, regulation, interpretation or position of the Commission or the staff
thereof applicable to the Tender Offer and (iii) for any reason on one or more
occasions for an aggregate period of not more than 5 business days beyond the
latest expiration date that would otherwise be permitted under clause (i) or
(ii) of this sentence.
(d) The obligation of the Company to accept for payment, and pay for,
shares of Common Stock properly tendered and not withdrawn prior to the
expiration of the Tender Offer shall be subject to the satisfaction or waiver at
or prior to the expiration of the Tender Offer of such conditions as the
Company, in its discretion (except as set forth below), shall have specified in
the Offer to Purchase to be distributed in connection with the Tender Offer.
Notwithstanding the foregoing, the Tender Offer shall not be subject to a
condition that any minimum number of shares of Common Stock be tendered, but
shall be subject to the following conditions: (i) that there shall not have
occurred or been threatened any change in the condition (financial or
otherwise), business, operations, properties, assets, liabilities, income or
prospects of the Company and its subsidiaries, taken as a whole, which is or may
be material and adverse to the Company and its subsidiaries, taken as a whole (a
"Material Adverse Change") and (ii) Cape Xxx Investors shall not have, prior to
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the expiration date, terminated its obligations under Section 2.2 of the
Agreement by and between the Company and Cape Xxx Investors dated as of October
14, 1997 (the "Cape Xxx Agreement"), in accordance with the terms thereof, as a
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result of a Material Adverse Change.
(e) The Stockholder will not tender any shares of Common Stock beneficially
owned by the Stockholder to the Company pursuant to the Tender Offer.
Section 1.2. The Stock Purchase. (a) Subject to the terms and conditions
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hereof, promptly after the Company gives notice to the Depositary (as defined in
the Offer to Purchase) of its acceptance of shares for payment pursuant to the
Tender Offer, the Stockholder shall purchase from the Company, and the Company
shall issue, sell and deliver to the Stockholder, a number of shares of Common
Stock equal to 20% of the first $5,000,000 worth of shares purchased pursuant to
the Tender Offer at a purchase price per share equal to
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the Per Share Purchase Price. The shares purchased and sold hereunder shall be
validly issued, fully paid and non-assessable, and shall be free and clear of
any liens, security interests, pledges, voting agreements, claims, options and
encumbrances of every kind, character and description whatsoever
("Encumbrances"), except as contemplated by this Agreement. A number of
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additional shares of Common Stock equal to the difference obtained by
subtracting the number of shares purchased by the Stockholder hereunder from the
Purchased Number, will be purchased by Cape Xxx Investors and one other
purchaser pursuant to separate purchase agreements dated the date hereof.
(b) The Stockholder shall be entitled, on written notice given to the
Company, to terminate his obligations to purchase shares of Common Stock
hereunder if Cape Xxx Investors has exercised its right to terminate its
obligations to purchase shares of Common Stock under Section 2.2 of the Cape Xxx
Agreement. In the event of any such termination, the Stockholder's obligations
under this Section 1.2 shall immediately terminate and be of no further force or
effect, but all the other provisions of this Agreement shall survive any such
termination and remain in full force and effect.
ARTICLE II
COVENANTS OF THE PARTIES
Section 2.1. Information from the Stockholder. The Stockholder shall
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promptly provide the Company with any information concerning the Stockholder
requested by the Company and required to be included in the Tender Offer
Statement.
Section 2.2. Cooperation; Further Action. In the event that any action
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is necessary or desirable to carry out the purposes of this Agreement, each
party shall take, and shall cause its directors, officers, employees,
representatives and agents, as the case may be, to take, all such necessary
actions including the execution and delivery of such further instruments and
documents as may reasonably be requested by any party for such purposes or
otherwise to complete or perfect the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company as follows:
Section 3.1. Authorization Execution and Delivery of Agreement. The
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Stockholder has all requisite power and authority to execute this Agreement, to
perform his obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Stockholder and this Agreement constitutes the legal, valid, binding and
enforceable obligation of the Stockholder, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditor's rights and
principles of
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equity.
Section 3.2. No Conflict; No Consent. The execution and delivery of this
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Agreement and the consummation of the transactions contemplated hereby do not,
and will not, conflict with, or result in any violation of or default under, or
permit the acceleration of any obligation under, or the creation or imposition
of any Encumbrance on any of the properties or assets of the Stockholder under
(i) any indenture, lease, mortgage, deed of trust, loan agreement or other
agreement or instrument, or any permit, license, registration, membership,
authorization or qualification from any federal, state, local or foreign
governmental or regulatory authority (each an "Authority"), of the Stockholder
or (ii) any judgment, order, decree, statute, law, ordinance, rule or regulation
of any Authority to which the Stockholder is a party or by which it is bound,
other than, in the case of clause (i) above, where such conflict, violation,
default, acceleration or Encumbrance would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), business, operations, properties, assets or liabilities of the
Stockholder. Other than as a result of the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), no consent,
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approval, order or authorization of, or registration, declaration, filing or
notice to, any Authority is required to be made or obtained by the Stockholder
in order to execute or deliver this Agreement or to consummate the transactions
contemplated hereby.
Section 3.3. Investment Purposes. (a) The Stockholder, by reason of his
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business and financial experience, has such knowledge, sophistication and
experience in business and financial matters as to be capable of evaluating the
merits and risks of his investment in the shares of Common Stock, and is
purchasing the shares hereunder for his own account, for investment only and not
with a view to, or any present intention of, effecting a distribution of such
securities or any part thereof. The Stockholder acknowledges that the shares to
be purchased hereunder have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), or the securities laws of any state or
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other jurisdiction and cannot be disposed of unless they are subsequently
registered under the Securities Act and any applicable state laws or exemption
from such registration is available.
(b) The Stockholder is an "accredited investor" as that term is defined
in Rule 501 promulgated under the Securities Act.
(c) The Stockholder has had the opportunity to ask questions and to
receive answers concerning the financial condition, operations and prospects of
the Company and the terms and conditions of the Stockholder's investment, as
well as the opportunity to obtain any additional information necessary to verify
the accuracy of information furnished in connection therewith that the Company
possesses or can acquire without unreasonable effort or expense.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Stockholder as follows:
Section 4.1. Due Organization, etc. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware.
Section 4.2. Authorization Execution and Delivery of Agreement. (a) The
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Company has full corporate power and authority to execute this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Company for all purposes.
This Agreement has been duly executed and delivered by the Company and this
Agreement constitutes the legal, valid, binding and enforceable obligation of
the Company, subject to applicable bankruptcy, insolvency, moratorium or other
similar laws relating to creditor's rights and principles of equity.
(b) The shares of Common Stock issuable upon consummation of the Stock
Purchase have been duly authorized by all necessary corporate action on part of
the Company, and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration therefor set forth herein, the
shares of Common Stock so issued will be validly issued, fully paid and non-
assessable and the Stockholder will acquire valid and marketable title to such
shares, free and clear of any Encumbrances except as contemplated by this
Agreement.
Section 4.3 No Conflict; No Consent. Subject to the receipt of a waiver
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from the lenders under the Company's credit facility, which waiver the Company
has been orally advised will be forthcoming promptly, the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
do not, and will not, conflict with, or result in any violation of or default
under, or permit the acceleration of any obligation under, or the creation or
imposition of any Encumbrance on any of the properties or assets of the Company
or any subsidiary of the Company under (i) any provision of the certificate of
incorporation or by-laws or similar constituent documents of the Company or any
subsidiary of the Company, (ii) any indenture, lease, mortgage, deed of trust,
loan agreement or other agreement or instrument, or any permit, license,
registration, membership, authorization of qualification from any Authority, of
the Company or any subsidiary of the Company or (iii) any judgment, order,
decree, statute, law, ordinance, rule or regulation of any Authority to which
the Company or any of its subsidiaries is a party or by which any of them is
bound, other than, in the case of clause (ii) above, where such conflict,
violation, default, acceleration or Encumbrance would not, individually or in
the aggregate, have a material adverse effect on the condition (financial or
otherwise), business, operations, properties, assets or liabilities of the
Company and its subsidiaries, taken as a whole. Other than as a result of the
reporting
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requirements of the Exchange Act, no consent, approval, order or authorization
of, or registration, declaration, filing or notice to, any Authority is required
to be made or obtained by the Company or any subsidiary of the Company in order
to execute or deliver this Agreement or to consummate the transactions
contemplated hereby.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1. Condition to Agreement. The agreements and covenants
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contained herein are subject, in their entirety, to the receipt of the requisite
consent or waiver of the lenders referred to in Section 4.3 hereof.
Section 5.2. Amendment and Modification. This Agreement may be amended,
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modified or supplemented only by written agreement of all parties.
Section 5.3. Notices. Any notice, request, instruction or other document
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to be given hereunder by a party hereto shall be in writing and shall be deemed
to have been given, (i) when received if given in person, or (ii) on the date of
transmission if sent by nationally recognized overnight courier, certified or
registered mail, return receipt requested or (iii) three days after being
deposited in the U.S. mail, postage prepaid:
(a) If to the Stockholder, addressed as follows:
Xxxxxxx X. Xxxxxx
Graduate Health System
00xx xxx Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
(b) If to the Company, addressed as follows:
NutraMax Products, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Vice President and
Chief Financial Officer
with a copy to:
Xxxxxx X. Xxxxxxx, Xx., Esq.
0000 Xxxx Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000-0000
and
0
Xxxxxxx, Xxxxxxx & Xxxx, XXX
Xxxxxxxx Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx III, Esq.
Section 5.4. Entire Agreement. This Agreement constitutes the entire
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agreement, and supersedes all of the prior agreements and undertakings, both
written and oral, between or among the parties, or any of them, with respect to
the subject matter hereof.
Section 5.5. Counterparts. This Agreement may be executed in two or more
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counterparts which together shall constitute a single agreement.
Section 5.6. Parties in Interest; Assignment. This Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. No provision of this Agreement, express or
implied, is intended to or shall confer upon any other person or entity any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement. This Agreement is not assignable except by consent of each of the
parties hereto or operation of law.
Section 5.7. Governing Law. This Agreement and the rights and obligations
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of the parties created hereby shall be governed by the internal laws of the
State of Delaware without regard to the conflict of law rules thereof.
Section 5.8. Captions. All section titles or captions contained in this
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Agreement are for convenience only, shall not be deemed a part of this Agreement
and shall not affect the meaning or interpretation of this Agreement. All
references herein to Sections shall be deemed references to such parts of this
Agreement, unless the context shall otherwise require.
Section 5.9. Equitable Relief. Each party acknowledges that, in the event
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of any breach of this Agreement by a party, the other party would be irreparably
and immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed that, in the event of any breach or threatened breach of the
provisions of this Agreement by such party, the other party, in addition to any
other remedy to which it may be entitled, shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
compel specific performance of this Agreement. Any requirements for the
securing or posting of any bond with respect to such remedy are hereby waived by
each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first written above.
NUTRAMAX PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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