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EXHIBIT 10.1
FORM OF LETTER AGREEMENT BETWEEN THE ISSUER AND EACH SELLING SHAREHOLDER
January --, 1997
Xxxxx Medical Industries, Inc.
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Gentlemen:
The undersigned is a "Selling Shareholder" of the Common Stock, $.04
par value (the "Common Stock") of Xxxxx Medical Industries, Inc. (the
"Issuer") as such term is defined in the Registration Statement on Form S-3
filed with the Securities and Exchange Commission on January --, 1997
(Registration No. 333--------) (the "Registration Statement"). The
Registration Statement relates to the offer, sale and distribution by all
Selling Shareholders of an aggregate of 1,460,084 shares (the "Shares") of
the Issuer's Common Stock under the Securities Act of 1933 (the "Act"). The
Shares constitute a portion of the Issuer's Common Stock issued pursuant to
that certain Plan of Reorganization and Agreement (the "Agreement") dated
July 30, 1996, by and among Xxxxx Drugs of Florida, Inc., Xxxxxxx
Pharmaceuticals, Inc. and the Issuer.
In accordance with the Agreement, as an inducement to the Issuer to
agree to: (i) prepare and file the Registration Statement; (ii) use its best
efforts to keep the registration of the Shares under the Act current and
effective until the earlier of: (A) the date upon which the sale or
distribution of the Shares by all Selling Shareholders has been completed or
is terminated at the request of all Selling Shareholders; or (B) August 30,
1998; and (iii) bear the costs, expenses and fees in connection with the
registration of the Shares under the Act, which costs, expenses and fees
shall include: (A) the filing fee due the Securities and Exchange Commission;
(B) the fees and expenses of the Issuer's counsel and accountants in
connection with the preparation, review and filing of the Registration
Statement; and (C) the costs of electronic filing of the Registration
Statement and printing costs with respect to the prospectus included in the
Registration Statement, the undersigned hereby covenants and agrees with you
that:
1. The undersigned will provide to the Issuer such information
as it may reasonably request or that is required for
inclusion in the Registration Statement;
2. The undersigned will indemnify and hold the Issuer and its
directors, officers, employees and authorized agents
harmless from and against any loss, claim, damage,
liability or expense suffered by the Issuer or its
directors, officers, employees and authorized agents in
connection with the offer, sale and distribution of Shares
under the Act as contemplated in the Registration
Statement, including reasonable attorney's fees and
expenses incurred by the Issuer in the defense of such
claims, and
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EXHIBIT 10.1 Xxxxx Medical Industries, Inc.
January --, 1997
Page 2
arising from: (a) the undersigned's failure to observe,
perform and discharge its covenants and agreements set forth
herein; and (b) any misstatement of fact, or the failure to
state a fact necessary to make the statements of fact not
misleading, relating to its participation and proposed manner
of sale;
3. The undersigned will bear the expense, incurred by or on
behalf of the undersigned, of any counsel fees and
brokerage commissions or other expenses in connection
with the sale of the registered Shares, including,
without limitation, the cost of any review of offering or
brokerage arrangements by the National Association of
Securities Dealers, Inc.;
4. The undersigned will be responsible for costs incurred in
connection with any amendment to the Registration
Statement arising from any change in the proposed manner
of offering or distribution or any withdrawal of Shares
from registration and will reimburse the Issuer for its
reasonable out of pocket expenses (including fees of
counsel and accountants and printing expenses) in
connection with amending the Registration Statement and
prospectus included therein;
5. The undersigned will not engage (or permit any broker-
dealer or agent acting on its behalf to engage) in offers
or sales of the Shares during: (a) the forty-five (45)
days following the effective date of any registration
statement filed by the Issuer relating to an offering or
distribution of equity securities for its own account,
whether for cash or in connection with an acquisition; or
(b) any period in which the information provided by any
of the Selling Shareholders (including, without
limitation, the undersigned) to the Issuer for inclusion
in the Registration Statement is inaccurate or
incomplete; and
6. The undersigned will advise the Issuer promptly of any
sales of Shares by or for its account, including "short
sales against the box."
The undersigned further acknowledges the foregoing covenants and
agreements are intended to constitute its binding contract and agreement with
you and that you shall be entitled to enforce the provisions hereof and in
the event of any enforcement proceeding arising from the undersigned's
failure to perform in accordance with this contract and agreement you shall
be entitled, in addition to such other remedies as may be available, to
recover your costs and expenses (including without limitation attorney's fees
and expenses) in connection with any proceeding seeking enforcement against
the undersigned.
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EXHIBIT 10.1 Xxxxx Medical Industries, Inc.
January --, 1997
Page 3
The undersigned further represents and warrants that the information
set forth in the Registration Statement and prospectus included therein under
the captions "Selling Shareholders" and "Plan of Distribution" is true,
correct and complete and does not include any misstatement of a material fact
or omit to include any statement necessary to make the statements therein not
misleading.
Very truly yours,
By:
--------------------
Name:
--------------------
Title:
--------------------
AGREED TO AND ACCEPTED BY
THE ISSUER THIS --- DAY
OF JANUARY, 1997.
By:
------------------
Name: Xxxxxx X. Xxxxx
Title: President
