Exhibit (d)(1)(S)
00 Xxx Xxxxxxx
Xxxxxx Xxxxxxx, Xxx Xxxx 00000
December __, 2000
Kanders & Company, Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Re: The Xxxxxx Biomechanics Group, Inc.; Best Efforts Agreement
Dear Sirs:
The following will confirm our agreement relating to the matters referred
to herein.
1. The undersigned OrthoStrategies, Inc. ("OS") and OrthoStrategies
Acquisition Corp. ("Purchaser") propose to enter into a Tender Offer Agreement
(the "Tender Offer Agreement") with The Xxxxxx Biomechanics Group, Inc.
("Xxxxxx") pursuant to which the Purchaser will offer to purchase approximately
75% of the issued and outstanding shares of Common Stock of Xxxxxx (the "Target
Shares").
2. Pursuant to a letter agreement of even date herewith (the "Funding
Agreement"), Kanders & Co. ("Xxxxxxx & Co."), Xxxxxx Xxxxxx ("Xxxxxx Xxxxxx"),
and Xxxx Xxxxxx ("Xxxx Xxxxxx" ) and, together with Xxxxxxx & Co. and Xxxxxx
Xxxxxx, the "Participants") have agreed to fund the obligation of the Purchaser
to purchase the Target Shares in the funding amounts set forth therein in
exchange for receipt of the Target Shares in proportion to such funding amounts.
3. In order to induce Kanders & Co. to enter into the Funding Agreement
and to proceed with the purchase of the Target Shares, immediately following the
consummation of the purchase of the Target Shares each of Xxxx Xxxxxx, Xxxxxx
Xxxxxx, OS, and the Purchaser agrees, in his/its capacity as a direct or
indirect shareholder of Xxxxxx, to take all necessary actions, and to use
his/its respective best efforts to cause Xxxxxx to take all necessary actions,
in order that Xxxxxx shall:
a) Execute and deliver a consulting agreement (the "Consulting
Agreement") between Xxxxxx and Kanders & Co., in a form
acceptable to Kanders & Co., pursuant to which Kanders & Co.
will provide general investment banking
and financial advisory services to Xxxxxx for a term of three
years in exchange for consideration of $100,000 per year;
b) Pursuant to the Consulting Agreement, execute and deliver an
indemnification agreement between Xxxxxx and Kanders & Co., in
a form acceptable to Kanders & Co., pursuant to which Xxxxxx
will indemnify Kanders & Co. and Xxxxxx Xxxxxxx to the fullest
extent authorized by law, against any and all losses and
expenses (including all interest, assessments and other
charges paid or payable in connection therewith) incurred in
connection with Kanders & Co's provision of consulting
services to Xxxxxx;
c) Pursuant to the Consulting Agreement, issue to Kanders & Co.
an option to purchase 100,000 shares of Common Stock at an
exercise price of $1.525 per share (the "Option");
d) Execute and deliver a registration rights agreement between
Xxxxxx and Kanders & Co., in a form acceptable to Kanders &
Co., pursuant to which Xxxxxx will seek to register under the
Securities Act of 1933, as amended, shares of Common Stock
acquired by Kanders & Co. in connection with the Tender Offer
Agreement and/or the Option;
e) Issue to non-management directors of Xxxxxx options to
purchase up to 30,000 shares of Common Stock at an exercise
price of $1.525 per share; and
x) Xxxxx (i) Xxxxx X. Xxxxxxx to be elected a director and
Non-Executive Chairman of Xxxxxx and to be paid annual
compensation of $10,000, payable quarterly in equal portions
and (ii) Xxxx Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxxx, and
Xxxxxxxx Xxxxxx to be elected as directors of Xxxxxx.
4. In order to induce OS and the Purchaser to enter into the Tender Offer
Agreement and to proceed with the purchase of the Target Shares and to induce
Xxxxxx Xxxxxx to enter into the Funding Agreement, each of Kanders & Co. and
Xxxx Xxxxxx agrees, immediately upon the consummation of the purchase of the
Target Shares in his/its capacity as a direct or indirect shareholder of Xxxxxx,
to take all necessary actions, and to use his/its respective best efforts to
cause Xxxxxx to take all necessary actions, in order that Xxxxxx shall execute
and deliver an Employment Agreement between Xxxxxx and Xxxxxx Xxxxxx,
substantially in the form annexed hereto, pursuant to which Xxxxxx Xxxxxx shall
serve as President and Chief Executive Officer of Xxxxxx for a three year term.
5. The parties hereto jointly and severally agree, immediately upon the
consummation of the purchase of the Target Shares in their respective capacities
as direct or indirect shareholders of Xxxxxx, to take all necessary actions, and
to use their respective best efforts to cause Xxxxxx to take all necessary
actions, in order that Xxxxxx shall execute and deliver separate indemnification
agreements between Xxxxxx and Xxxxxx in a form acceptable to Xxxxxx and between
Xxxxxx and each of the persons identified in paragraph 3(f) hereof pursuant to
which Xxxxxx will xxxxxxxxx Xxxxxx and said other persons to the fullest extent
authorized by law, against any and all losses and expenses (including all
interest, assessments and other
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charges paid or payable in connection therewith) incurred in connection with the
service of Xxxxxx and each such other person as an officer and/or director of
Xxxxxx and its subsidiaries and affiliates.
6. The parties agree that the term "fees and expenses" as used in
paragraph 3 of the Funding Agreement and herein, means the aggregate amount of
any professional, legal, accounting, printing, advertising, depository/transfer
agent, solicitation agent, filing fees and other expenses incurred in connection
with the preparation, execution, and delivery of the Tender Offer Agreement, the
Option, the Registration Rights Agreement, the Funding Agreement, and any other
agreements or documents entered into, and any other actions taken, in connection
therewith. Schedule A hereto sets forth an estimate of the aggregate amount of
such Expenses.
7. Notwithstanding anything else contained herein, the Tender Offer
Agreement, the letter among the parties captioned "Commitment to Fund" of even
date herewith ("Funding Agreement"), or any other agreement or understanding
among any of the parties hereto, if in the reasonable opinion of any of the
Participants, either of the Purchaser or OS shall have the right to terminate
the Tender Offer Agreement pursuant to any of Sections XA(i), (ii), (iii), or
(vi) of the Tender Offer Agreement, any of the Participants, on behalf of itself
and any of its designees pursuant to Section XI.E. of the Tender Offer Agreement
(collectively "Withdrawing Party") may, without liability or further obligation,
decline to provide funds for the purchase of the Target Shares and decline to
purchase Shares ("Withdrawal"); provided, however, that
(a) if the Purchaser thereafter declines to close under the Tender Offer
Agreement, each of the parties shall have a continuing obligation to fund a
portion of the Purchaser's, OS's and Kanders & Co.'s Expenses in the same
proportion as his/its "Aggregate Share Entitlement" (as defined in the Funding
Agreement); and
(b) if the Purchaser nevertheless proceeds to a Closing under the Tender
Offer Agreement despite a party's Withdrawal, and the Withdrawing Party does not
in fact purchase Shares, such Withdrawing Party shall not have any obligation to
contribute to the fees and expenses which would otherwise be required to be paid
by such Withdrawing Party pursuant to the Funding Agreement.
8. Notwithstanding anything to the contrary in any other document executed
by the parties, if the Purchaser in unable to close under the Tender Offer
Agreement because any party ("Non-Funding Party") has failed to fund his or its
full commitment under the Funding Agreement (there having been no other act or
occurrence which excuses the Purchaser's obligation to close pursuant to the
Tender Offer Agreement) then the Non-Funding party shall be responsible for the
payment of all of the Expenses of OS, the Purchaser and Kanders & Co., and the
entire amount of the payment required to be made by Xxxxxx Xxxxxx to Xxxxxx
pursuant to a letter agreement between Xxxxxx Xxxxxx and Xxxxxx captioned
"Transaction Expenses Pursuant to Section X(B)(iii) of Tender Offer Agreement"
of even date herewith.
9. This letter agreement shall be shall be governed by and construed and
enforced in accordance with the laws of the State of New York (without regard to
the conflicts of laws provisions thereof). The parties agree that all actions
and proceedings arising in connection with this letter agreement shall be tried
and litigated only in the federal and state courts located in the
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County of New York, State of New York. The parties hereto hereby irrevocably
submit to the exclusive jurisdiction of such courts for the purpose of any such
action or proceeding.
10. Any provision of this letter agreement may be amended or waived, if
such amendment or waiver is in writing and signed by each of the parties hereto.
No failure or delay by any party in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power, or privilege. The rights and remedies provided for
herein shall be cumulative and not exclusive of any rights or remedies provided
by law.
11. All notices, requests, consents, and other communications hereunder
shall be provided to the addresses set forth herein.
12. The parties agree that if any term or provision of this Agreement
contravenes or is invalid under applicable law, this letter agreement shall be
construed as if it did not contain such term or provision.
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Please indicate your agreement with the foregoing by executing and
returning to the undersigned a copy of this letter agreement.
Sincerely,
--------------------------------
Xxxxxx X. Xxxxxx
Address:
ORTHOSTRATEGIES, INC.
By:
-----------------------------
Name:
Title:
Address:
ORTHOSTRATEGIES ACQUISITION CORP.
By:
-----------------------------
Name:
Title:
Address:
ACCEPTED AND AGREED:
--------------------------------
Xxxx Xxxxxx
Address:
KANDERS & COMPANY, INC.
By:
-----------------------------
Name:
Title:
Address:
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