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EXHIBIT 10.1
FORM OF LETTER AGREEMENT BETWEEN THE ISSUER AND THE SELLING SHAREHOLDER
February --, 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 February 14, 1997
(Registration No. 333--------) (the "Registration Statement"). The
Registration Statement relates to the offer, sale and distribution by the
Selling Shareholder of an aggregate of 75,000 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
the exercise by the Selling Shareholder of a non-statutory stock option
granted by the Issuer in 1991.
As an inducement to the Issuer to agree to: (i) prepare and file the
Registration Statement; and (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 the Selling Shareholder has been completed or is terminated at the
request of the Selling Shareholder; or (B) March 31, 1997, 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 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 costs, expenses and fees in
connection with the registration of the Shares under the Act,
which costs, expenses and fees shall include:
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EXHIBIT 10.1 Xxxxx Medical Industries, Inc.
February --, 1997
Page 2
(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;
4. 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.;
5. 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;
6. 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 the Selling Shareholder (including, without limitation, the
undersigned) to the Issuer for inclusion in the Registration
Statement is inaccurate or incomplete; and
7. The undersigned will advise the Issuer promptly of any sales of
Shares by or for its account [, including so-called "short
against the box" transactions].
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.
February --, 1997
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The undersigned further represents and warrants that the information
set forth in the Registration Statement and prospectus included therein
under the captions "Selling Shareholder" 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:
Xxxxxxx X. Xxxxxxxxx
Executive Vice President
AGREED TO AND ACCEPTED BY
THE ISSUER THIS --- DAY
OF FEBRUARY, 1997.
By: ------------------
Name: Xxxxxx X. Xxxxx
Title: President
