EXHIBIT C
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This AMENDED AND RESTATED STOCK PURCHASE AGREEMENT, dated as of November 20,
1996 (the "Agreement"), among MEDIQ Incorporated, a Delaware corporation
("MEDIQ"), MEDIQ Investment Services, Inc., a Delaware corporation ("MIS" and
together with MEDIQ, collectively the "Seller"), and NutraMax Products, Inc.,
a Delaware corporation (the "Company"), amends and restates in its entirety
the Stock Purchase Agreement dated September 18, 1996, by and between Seller
and the Company.
W I T N E S S E T H:
WHEREAS, Seller owns 4,037,258 shares of Common Stock of the Company (the
"NutraMax Shares"); and
WHEREAS, as of the date hereof, 2,254,902 of the NutraMax Shares are held in
escrow in support of MEDIQ's 7 1/2% Subordinated Debentures due 2003 (the
"Bonds") pursuant to that certain Indenture dated as of July 30, 1993 between
MEDIQ and First Fidelity Bank, N.A., Pennsylvania (the "Indenture") and that
certain Escrow Agreement dated July 30, 1993 among MEDIQ, MIS and First
Fidelity Bank, N.A., Pennsylvania (the "Escrow Agreement"); and
WHEREAS, the Seller desires to sell and the Company desires to purchase all
of the NutraMax Shares in accordance with the terms and conditions hereof; and
WHEREAS, pursuant to Section 11.14 of the Indenture, MEDIQ has the right to
deliver cash in lieu of the Escrowed Shares upon exchange of the MEDIQ Bonds.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, the parties hereto
agree as follows:
1. SALE OF THE SHARES
1.1 On the dates and in the amounts as set forth herein, the Seller shall
transfer, assign, sell and deliver to the Company, and the Company shall
purchase from the Seller all of the NutraMax Shares for a purchase price of
$9.00 per share (the "Purchase Price"), or $36,335,332 in the aggregate for
all NutraMax Shares. The closing (the "Closing") of the sale and purchase and
delivery of all of the NutraMax Shares other than any NutraMax Shares then
held in escrow pursuant to the Indenture and the Escrow Agreement (the
"Escrowed Shares") shall be held as provided in Section 1.2 and thereafter the
sale and purchase and delivery against payment of the Note (as hereinafter
defined) of Escrowed Shares shall occur as provided in Section 1.3.
1.2 Closing. The Closing of the purchase and sale of the NutraMax Shares
(other than the Escrowed Shares) shall be held on December 31, 1996 or such
other date as Seller and the Company may mutually agree (the "Closing Date").
At the Closing (i) the Purchase Price for the NutraMax Shares other than the
Escrowed Shares shall be paid by the Company by wire transfer pursuant to
instructions previously given by Seller to the Company for that purpose
against delivery of certificates for the NutraMax Shares so purchased duly
endorsed or accompanied by stock powers duly executed in blank; and (ii)
payment for the Escrowed Shares shall be made by delivery by the Company to
Seller of a promissory note of the Company in favor of Seller substantially in
the form attached hereto as Exhibit A, in an original principal amount equal
to the aggregate number of Escrowed Shares multiplied by $9.00 (the "Note")
secured by a letter of credit reasonably acceptable in form and substance to
Seller (the "Letter of Credit").
1.3 Delivery of Escrowed Shares. Seller shall, as Escrowed Shares are
released from escrow under the Indenture and Escrow Agreement, upon 3 business
days prior notice to the Company, sell, transfer, assign and deliver such
Escrowed Shares to the Company free and clear of all liens, claims,
encumbrances and restrictions (other than as imposed by applicable securities
laws), upon receipt by Seller from the Company of a prepayment of the Note in
an amount equal to the Purchase Price of the Escrowed Shares so delivered.
Notwithstanding the foregoing, the Company shall not be required to prepay the
Note and accept delivery of any of the Escrowed Shares except in lots of no
less than 50,000 shares; provided, however, if there are less than 50,000
Escrowed Shares remaining, the Company shall be required to prepay the Note
upon delivery of such remaining Escrowed Shares.
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1.4 Delivery of Cash. To the extent that any holder of a MEDIQ Bond or Bonds
(other than Seller) presents such MEDIQ Bond or Bonds for exchange for
Escrowed Shares in accordance with the terms of the Indenture and MEDIQ
delivers Escrowed Shares to such holder, (i) the principal amount of the Note
shall be reduced by an amount equal to the product of the number of Escrowed
Shares so delivered by MEDIQ to such holder and $9.00, and (ii) the principal
amount of the Note shall further be reduced by an amount (the "Excess Cash
Amount") equal to the product of the number of Escrowed Shares so delivered by
MEDIQ to such holders and the number which is equal to (X) $1,000 divided by
the then Exchange Rate (as such term is defined in the Indenture) minus (Y)
$9.00, provided, however, that in lieu of such further reduction in the
principal amount of the Note under the foregoing clause (ii), the Company may
elect to receive an amount in cash from Seller equal to the Excess Cash
Amount.
1.5 Voting of Escrowed Shares, etc. Seller agrees that, from and after the
Closing, (i) at any meeting of stockholders of the Company, however called, or
in connection with a written consent of the Company's stockholders, Seller
shall deliver to the Company an irrevocable proxy authorizing the Board of
Directors of the Company to vote all of the Escrowed Shares in the same
proportion as the votes of the holders of all the other shares of Common Stock
of the Company at any such meeting or pursuant to any such consent, and (ii)
the Company shall be entitled to receive any and all dividends paid or payable
with respect to the Escrowed Shares (other than dividends apportioned to the
Escrowed Shares pursuant to Section 11.05 of the Indenture to which Seller is
not entitled); provided, however, that the obligations of Seller under the
foregoing clause (i) and the right of the Company to receive dividends
pursuant to the foregoing clause (ii) shall terminate upon an event of default
under the Note.
2. CERTAIN REPRESENTATIONS AND WARRANTIES
2.1 Certain Representations and Warranties by the Seller. The Seller
represents and warrants to the Company that:
(a) Organization and Good Standing. Each Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all necessary corporate power and authority to
carry on its business and to own and lease the assets which it owns and
leases.
(b) Power and Authorization. Each Seller has full legal right, power and
authority to enter into and perform its obligations under this Agreement
and the other agreements and documents required to be delivered by it
hereunder. The execution, delivery and performance by each Seller of this
Agreement and such other agreements and documents have been duly authorized
by all necessary corporate action on the part of Seller. This Agreement has
been duly and validly executed and delivered by each Seller and constitutes
its legal, valid and binding obligation, enforceable against it in
accordance with its terms. When executed and delivered by such Seller as
contemplated herein, each of such other agreements and documents shall
constitute the legal, valid and binding obligation of each Seller,
enforceable against it in accordance with its terms.
(c) No Conflicts. (i) Neither the execution of this Agreement nor the
consummation by each Seller of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any statute
or regulation, contract, commitment, agreement, understanding, arrangement
or restriction of any kind to which such Seller is a party or by which it
or any of its properties are bound (which, in relation to a contract,
commitment, agreement, understanding, arrangement or restriction would have
a material adverse effect on the Seller or prohibit the transactions
contemplated herein) and (ii) no consent, approval, order or authorization
of any court, administrative agency, other governmental entity or any other
person is required (as opposed to voluntary) by or with respect to such
Seller in connection with the execution and delivery of this Agreement by
such Seller.
(d) Ownership of Shares. (i) Upon transfer and delivery of the NutraMax
Shares by the Seller hereunder to the Company, as provided herein, Company
shall acquire good and marketable title to such shares, free and clear of
all claims, liens, charges, proxies, encumbrances and security interests
and (ii) the Seller does not own beneficially (as hereinafter defined) or
of record any shares of common stock of the Company other than the NutraMax
Shares.
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(e) No Broker. Neither Seller nor any director, officer, employee of
Seller has incurred or will incur on behalf of the Company any brokerage,
finder's or similar fee in connection with the transactions contemplated by
this Agreement.
2.2 Certain Representations and Warranties by the Company. The Company
represents and warrants to the Seller that:
(a) Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all necessary corporate power and authority to
carry on its business and to own and lease the assets which it owns and
leases.
(b) Power and Authorization. The Company has legal right, power and
authority to enter into and perform its obligations under this Agreement
and the other agreements and documents required to be delivered by it
hereunder. The execution, delivery and performance by the Company of this
Agreement and such other agreements and documents have been duly authorized
by all necessary corporate action pursuant to the Delaware General
Corporation Law and otherwise. The transactions contemplated by this
Agreement have been approved by a special committee of the board of
directors composed entirely of directors who are not officers or employees
of the Company and/or present or former employees or consultants of MEDIQ.
This Agreement has been duly and validly executed and delivered by the
Company and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms. When executed and
delivered as contemplated herein, each of such other agreements and
documents shall constitute the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms.
(c) No Conflicts. (i) Neither the execution of this Agreement nor the
consummation by the Company of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any statute
or regulation, contract, commitment, agreement, understanding, arrangement,
obligation, duty or restriction of any kind to which the Company is a party
or by which it or any of its properties is bound and (ii) no consent,
approval, order or authorization of or by the stockholders of the Company
or of any court, administrative agency, other governmental entity or any
other person (other than that which has already been obtained) is required
(as opposed to voluntary) by or with respect to the Company in connection
with the execution and delivery of this Agreement by it.
(d) Company SEC Documents. The Company has timely filed with the
Securities and Exchange Commission (the "SEC"), and has heretofore
delivered to Seller true, correct and complete copies of, all forms,
reports, schedules, statements and other documents required to be filed
with the SEC by it since December 31, 1993 pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") or the Securities Act of 1933
(the "Securities Act") (such documents, as supplemented and amended since
the time of filing, collectively, the "NutraMax SEC Documents"). The
NutraMax SEC Documents, including, without limitation, any financial
statements or schedules included therein, at the time filed (and in the
case of registration statements and proxy statements, on the dates of
effectiveness and the date of mailing, respectively) (a) did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated herein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (b) complied in all material respects with the applicable
requirements of the Exchange Act and the Securities Act, as the case may
be. The financial statements of the Company included in the NutraMax SEC
Documents at the time filed (and, in the case of registration statements
and proxy statements, on the date of effectiveness and the date of mailing,
respectively) complied as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect thereto, were prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the
period involved (except as may be indicated in the notes thereto or, in the
case of unaudited statements, as permitted by Form 10-Q of the Commission),
and fairly present (subject in the case of unaudited statements to normal,
recurring audit adjustments) the consolidated financial position of the
Company as at the dates thereof and the consolidated results of its
operations and cash flows for the periods then ended.
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(e) Capitalization. The Company's authorized issued and outstanding
capital stock and its other securities are fully and accurately described
in the Company's most recent SEC reports. Except for shares subject to the
Company's employee stock option and similar employee benefits plans, no
person has any preemptive or other similar rights and with respect to any
such equity interests or other securities and there are no offers, options,
warrants, rights, agreements or commitments of any kind (contingent or
otherwise) relating to the issuance, conversion, registration, voting, sale
or transfer of any equity interests or other securities of the Company
(including, without limitation, the NutraMax Shares) or obligating the
Company or any other person to purchase or redeem any such equity interests
or other securities.
(f) No Brokers. Neither the Company nor any director, officer or employee
of the Company has incurred or will incur on behalf of the Company, any
brokerage, finder's or similar fee in connection with the transactions
contemplated by this Agreement.
3. CONDITIONS PRECEDENT
3.1 Mutual Condition. The obligation of the Company and the Seller to enter
and consummate the transactions contemplated hereby is subject to the
satisfaction of the following condition: the transactions contemplated hereby
shall not violate any order or decree of any court or governmental body of
competent jurisdiction and no suit, action, proceeding or investigation shall
have been brought or threatened by any person (other than Seller or the
Company) which questions the validity or legality of this Agreement or any of
the transactions contemplated hereby.
3.2 Certain Conditions Precedent to the Company's Obligations. The
obligation of the Company to enter into and complete the transactions
contemplated hereby is subject to the fulfillment (or waiver in writing by the
Company in its sole discretion) on or prior to the Closing Date of the
conditions that:
(a) the representations and warranties of the Seller contained in this
Agreement shall be true and correct in all material respects on and as of
the date hereof and on the Closing Date with the same force and effect as
though made on and as of the Closing Date;
(b) the Seller shall have performed and complied in all material respects
with all covenants and agreements required by this Agreement to be
performed or complied with by the Seller on or prior to the Closing Date;
(c) the Seller shall have delivered to the Company a certificate, dated
the Closing Date and signed by a duly authorized officer of the Seller, to
the foregoing effect; and
(d) the Company shall have received financing upon terms and for such
amount necessary to fulfill its obligations hereunder.
(e) Seller shall have delivered to the Company an opinion of counsel to
the Seller as to the matters set forth in Section 2.1(a), (b), (c) and (d)
hereof (provided that with respect to Sections 2.1(c) and (d) the opinion
need only relate to such factual matters as to which such counsel has
knowledge.
(f) the Company shall have received a favorable vote of its shareholders
other than Seller with respect to the consummation of the transactions
contemplated by this Agreement.
(g) the Board of Directors of the Company shall have received a fairness
opinion from an internationally recognized investment banking firm to the
effect that the transactions contemplated by this Agreement are fair from a
financial point of view to the Shareholders of the Company (other than the
Seller).
(h) the Board of Directors of the Seller shall have received a fairness
opinion from an internationally recognized investment banking firm to the
effect that the transactions contemplated by this Agreement are fair from a
financial point of view to the shareholders of the Seller.
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3.3 Certain Conditions Precedent to Seller's Obligations. The obligation of
the Seller to enter into and complete the transactions contemplated hereby is
subject to the fulfillment (or waiver in writing by the Seller in its sole
discretion) on or prior to the Closing Date of the conditions that:
(a) the representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects on and as of
the date hereof and on the Closing Date with the same force and effect as
though made on and as of the Closing Date;
(b) the Company shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complete with the by the Company on or prior to the Closing
Date;
(c) the Company shall have delivered to Seller a certificate, dated the
Closing Date and signed by a duly authorized officer of the Company, to the
foregoing effect;
(d) the Company shall have obtained at its own expense and provided to
Seller the Letter of Credit securing its obligations under the Note; and
(e) the Company shall have delivered to Seller an opinion of counsel to
the Company as to the matters set forth in Section 2.2(a), (b), (c) hereof
(provided that with respect to Section 2.2(c) the opinion need only relate
to agreements as to which such counsel has knowledge).
(f) the Company shall have received a favorable vote of its shareholders
other than Seller with respect to the consummation of the transactions
contemplated by this Agreement.
(g) the Board of Directors of the Company shall have received a fairness
opinion from an internationally recognized investment banking firm to the
effect that the transactions contemplated by this Agreement are fair from a
financial point of view to the Shareholders of the Company (other than the
Seller).
(h) the Board of Directors of the Seller shall have received a fairness
opinion from an internationally recognized investment banking firm to the
effect that the transactions contemplated by this Agreement are fair from a
financial point of view to the shareholders of the Seller.
4. CLOSING DELIVERIES
4.1 Seller's Deliveries. At the Closing, Seller shall deliver, or shall
cause to be delivered to the Company the following:
(a) certificates for all of the NutraMax Shares other than the Escrowed
Shares, duly endorsed or accompanied by stock powers duly executed in
blank;
(b) an irrevocable proxy authorizing the Board of Directors of the
Company to vote all of the Escrowed Shares, in form and substance
reasonably satisfactory to the parties; provided that such proxy shall
terminate upon an event of default under the Note;
(c) copies of the resolutions of the Board of Directors of each Seller
authorizing the execution, delivery and performance of this Agreement,
certified as of the Closing by the Secretary or an Assistant Secretary of
Seller; and
(d) such other documents and instruments as the Company may reasonably
request to effectuate or evidence the transactions contemplated by this
Agreement;
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4.2 The Company's Deliveries. At the Closing, the Company shall deliver, or
shall cause to be delivered to Seller the items described below:
(a) the Closing Payment;
(b) the Note;
(c) the Letter of Credit; and
(d) a copy of the resolutions of the Board of Directors of the Company
and each committee thereof authorizing the execution, delivery and
performance by the Company of this Agreement and the other agreements and
instruments referred to herein, certified as of the Closing by the
Secretary or an Assistant Secretary of the Company.
5. INDEMNIFICATION
5.1 Indemnification by Seller. Seller shall indemnify and hold the Company
and its officers, directors and shareholders harmless against and in respect
of any and all losses, costs, expenses, claims, damages, obligations and
liabilities, including interest, costs of investigation, penalties and
reasonable attorneys' fees and disbursements ("Damages") which Buyer or any
such person may suffer, incur or become subject to arising out of, based upon
or otherwise in respect of any inaccuracy in or breach of any representation
or warranty of Seller made in or pursuant to this Agreement or any agreement
or document required to be delivered pursuant to this Agreement or any breach
or nonfulfillment of any covenant or obligation of Seller contained in this
Agreement or such other agreements and documents.
5.2 Indemnification by the Company. The Company shall indemnify and hold
Seller and its officers, directors and shareholders harmless against and in
respect of any and all Damages which Seller or any such person may suffer,
incur or become subject to arising out of, based upon or otherwise in respect
of any inaccuracy in or breach of any representation or warranty of the
Company made in or pursuant to this Agreement or any agreement or document
required to be delivered pursuant to this Agreement or any breach or
nonfulfillment of any covenant or obligation of the Company contained in this
Agreement or such other agreements and documents.
5.3 Third Party Claims.
(a) Each party shall promptly notify the other of the assertion by any
third party of any claim with respect to which the indemnification set
forth in this Section relates. The indemnifying party shall have the right,
upon notice to the indemnified party within ten (10 business days after the
receipt of any such notice, to undertake the defense of or, with the
consent of the indemnified party (which consent shall not unreasonably be
withheld), to settle or compromise such claim. The failure of the
indemnifying party to give such notice and to undertake the defense of or
to settle or compromise such a claim shall constitute a waiver of the
indemnifying party's rights under this Section 5.3(a) and in the absence of
gross negligence or willful misconduct on the part of the indemnified party
shall preclude the indemnifying party from disputing the manner in which
the indemnified party may conduct the defense of such claim or the
reasonableness of any amount paid by the indemnified party in satisfaction
of such claim.
(b) The election by the indemnifying party, pursuant to Section 5.3(a),
to undertake the defense of a third party claim shall not preclude the
party against which such claim has been made also from participating or
continuing to participate in such defense, so long as such party bears its
own legal fees and expenses for so doing.
6. MISCELLANEOUS
6.1 Best Efforts. Each of the parties shall use its best reasonable efforts
to take all action and do all things necessary, proper or advisable to
consummate the transaction contemplated by this Agreement.
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6.2 Parties in Interest; Assignment. Neither of the parties to this
Agreement may assign any of its rights or obligations under this Agreement
without the prior written consent of the other party hereto, provided that
Seller may pledge, assign or otherwise transfer part or all of its interest in
and to the Note without such consent. Subject to the foregoing, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted assigns.
6.3 Entire Agreement; Amendments; Waiver. This Agreement contains the entire
understanding between the Seller and the Company with respect to its specific
subject matter. This Agreement may be amended only by written instrument duly
executed by the parties hereto. No party may waive any term, provision,
covenant or restriction of this Agreement except by duly signed writing
referring to the specific provision to be waived.
6.4 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be delivered personally or transmitted
by telex, fax or telegram, to the respective parties as follows:
(a) If to the Seller, to it at:
MEDIQ Incorporated
Xxx XXXXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, President
Telecopier: (000) 000-0000
with a copy to:
Drinker, Xxxxxx & Xxxxx
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: F. Xxxxxxx Xxxxxxx, III, Esquire
Telecopier: (000) 000-0000
(b) If to the Company, to it at:
NutraMax Products, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Telecopier: 000-000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Floor, P.C.
Telecopier: 000-000-0000
or to such other address as any party may have furnished to the others in
writing.
6.5 Governing Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of Delaware.
6.6 Survival. All representations, warranties, covenants and agreements of
the parties hereto shall survive indefinitely the Closing.
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6.7 Termination.
(a) This Agreement may be terminated and the transactions contemplated
herein may be abandoned at any time prior to the Closing:
(i) by Company or Seller, if the Closing has not occurred by December
31, 1996;
(ii) by mutual consent of Company and Seller;
(iii) by Company, if any representation or warranty of Seller made in
or pursuant to this Agreement is untrue or incorrect in any material
respect, Seller breaches its covenants or other terms of this Agreement
or any of the conditions precedent to Closing contained in Section 3.2
are not satisfied on or before December 31, 1996; or any event or
circumstance occurs such that any of such conditions will not be
satisfied as of such date; or
(iv) by Seller, if any representation or warranty of Company made in
or pursuant to this Agreement is untrue or incorrect in any material
respect, Company breaches the covenants or other terms of this
Agreement or any of the conditions precedent to Closing contained in
Section 3.3 are not satisfied on or before December 31, 1996 or any
event or circumstance occurs such that any of such conditions will not
be satisfied as of such date.
(b) A party terminating this Agreement pursuant to Section 6.7 shall give
written notice thereof to each other party hereto, whereupon this Agreement
shall terminate and the transactions contemplated hereby shall be abandoned
without further action by any party; provided, however, that if such
termination is pursuant to Section 6.7(a)(i) by reason of a breach by a
party hereto, such termination is by Company pursuant to Section
6.7(a)(iii) or if such termination is by Seller pursuant to Section
6.7(a)(iv), nothing herein shall affect the non-breaching party's right to
damages on account of such other party's breach.
6.8 Specific Performance. The Seller acknowledges that the NutraMax Shares
are unique and that the Company will not have an adequate remedy at law if the
Seller fails to perform any of its obligations hereunder, and the Seller
agrees that the Company shall have the right, in addition to any other right
it has, to specific performance or equitable relief by way of injunction if
the Seller fails to perform any of its obligations hereunder.
6.9 Counterparts; Headings. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same document. The article and
section headings contained herein are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
6.10 Expenses. Each of the parties hereto shall pay the fees and expenses it
incurs in connection with this Agreement, other than as a result of the breach
hereof by the other party hereto.
6.11 Certain Definitions. For purposes of the Agreement:
(a) "beneficially owned" shall have the meaning set forth in Rule 13d-3
promulgated under the Exchange Act, as such Rule is in effect on the date
hereof.
(b) "business day" means any day which is neither a Saturday or Sunday
nor a legal holiday on which banks are authorized or required to be closed
in New York, New York or Philadelphia, Pennsylvania.
6.12 Stock Splits, etc. The number of NutraMax Shares and the purchase price
therefor specified in this Agreement shall be appropriately adjusted for any
stock split, reverse stock split, stock dividend or any similar event
occurring after the date hereof and prior to the consummation of the purchase
and sale of all such NutraMax Shares.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written.
MEDIQ INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
MEDIQ INVESTMENT SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
NUTRAMAX PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
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EXHIBIT A TO STOCK PURCHASE AGREEMENT
PROMISSORY NOTE
_______________________________________________________________ , 1996
FOR VALUE RECEIVED, NutraMax Products, Inc., a Delaware corporation with its
principal place of business at 0 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000
("Company"), hereby promises to pay to the order of MEDIQ Investment Services,
Inc. ("Seller"), a Delaware corporation with its principal place of business
c/o MEDIQ Incorporated ("MEDIQ"), Xxx XXXXX Xxxxx, Xxxxxxxxxx, XX 00000-0000,
the principal amount of Dollars ($ ) in
installments as Escrowed Shares (as defined in that certain Amended and
Restated Stock Purchase Agreement among MEDIQ, Seller and Company, dated as of
November 20, 1996 (the "Purchase Agreement")) are released from escrow under
the Indenture and the Escrow Agreement (as such terms are defined in the
Purchase Agreement) in accordance with Section 1.3 of the Purchase Agreement,
together with interest at the annual rate of 7 1/2%, payable quarterly in
arrears; provided, however, that (i) if this Note is still outstanding
eighteen (18) months after the Closing Date (as such date is defined in the
Purchase Agreement), the annual interest rate of this Note shall be reduced to
5%; (ii) if this Note is still outstanding thirty (30) months after the
Closing Date, the annual interest rate on this Note shall be reduced to 4%;
and (iii) if this Note is still outstanding forty-two (42) months after the
Closing Date, the annual interest rate on this Note shall be reduced to 3%.
Notwithstanding the foregoing, the outstanding principal amount of this Note
is subject to reduction in accordance with the terms of the Purchase Agreement
and is subject in all respects thereto.
Payments of principal and interest shall be made in lawful money of the
United States of America by wire transfer of immediately available funds to
Seller at Xxx XXXXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 or at such other
place as Seller shall designate to Company in writing.
This Note is entitled to be benefits of, and is secured by that certain
Letter of Credit issued by The First National Bank of Boston (the "Letter of
Credit").
The failure of Company to make any payment of principal or interest when due
under this Note shall consititute an "Event of Default" hereunder. Upon the
occurrence of an Event of Default, Seller may draw on the Letter of Credit to
satisfy the obligations of Company hereunder.
Payment under this Note is subject to the terms and conditions of the
Purchase Agreement, including, without limitation, the delivery of Escrowed
Shares to Company pursuant to Section 1.3 thereof.
This Note shall inure to the benefit of Seller and its successors and
assigns and shall be binding upon Company and its successors and assigns.
Subject to applicable law, this Note may be amended, modified and supplemented
only by written agreement of both Company and Seller.
Any notice, request or other communication pursuant to this Note shall be
deemed duly given if delivered pursuant to the notice provisions contained in
the Purchase Agreement.
No failure or delay on the part of Seller to insist on strict performance of
Company's obligations hereunder or to exercise any remedy shall constitute a
waiver of Seller's rights in that or any other instance. No waiver of any of
Seller's rights shall be effective unless in writing, and any waiver of any
default or any instance of non-compliance shall be limited to its express
terms and shall not extend to any other default or instance of non-compliance.
Company hereby waives presentment, notice of nonpayment or dishonor,
protest, notice of protest and all other notices in connection with the
delivery, acceptance, performance, default or enforcement of payment of this
Note, and hereby waives all notice or right of approval of any extensions,
renewals, modifications or forbearances which may be allowed.
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Company shall pay all reasonable costs and expenses (including attorneys'
fees) incurred by Seller relating to the enforcement of this Note.
Any provision hereof found to be illegal, invalid or enforceable for any
reason whatsoever shall not affect the validity, legality or enforceability of
the remainder hereof.
If the effective interest rate on this Note would otherwise violate any
applicable usury law, then the interest rate shall be reduced to the maximum
permissible rate and any payment received by Seller in excess of the maximum
permissible rate shall be treated as a prepayment of the principal of this
Note.
The execution, delivery and performance of this Note shall be governed by
and construed in accordance with the laws of the State of Delaware.
C-11
IN WITNESS WHEREOF, Company has caused this Note to be executed under seal
by its duly authorized representatives as of the date set forth above.
NUTRAMAX PRODUCTS, INC.
By:
-----------------------------------
Name:
Title:
ATTEST:
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C-12
