EXHIBIT (S)
PUT AND CALL AGREEMENT
AGREEMENT made and entered into as of the ____ day of ____________, 199[5],
between ______________________, a ___________________ ("Other Party"), having
its principal place of business at________________________________ [ ], and
XXXXXX X. XXXXX ("Xxxxx"), residing at 000 Xxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
In consideration of the premises and the mutual covenants and agreements
contained herein, Other Party and Stone hereby agree as follows:
(i) PUT OPTION. Stone may from time to time, following not less than ten
(10) days prior written notice to Other Party as provided for herein, put to
Other Party a maximum of [1/2 of number of MBM Shares to be received by Xxxxxx
in transaction] shares (the "Option Shares") of the common stock of Micro Bio-
Medics, Inc. ("MBM") received by Stone from MBM as of this date, which shares do
not include any shares of MBM common stock held or to be held by Otterbourg,
Steindler, Houston & Xxxxx, P.C. under the terms of that certain letter re:
Escrow Agreement for [1/2 of number of MBM Shares to be received by Xxxxxx in
transaction] shares of MBM common stock, but not in any event less than such
number of shares for which the purchase price hereunder will be $100,000, and
Other Party shall purchase from Stone such specified Option Shares at a price of
$9.50 per share ("Put Price"), subject to the following conditions:
(i). 1 Such right of Stone to require Other Party to purchase such
shares shall commence on the date one (1) year from and after the date hereof
and notice delivered to Other Party prior to such date shall be null and void
and without effect;
(i). 2 Such right of Stone to require Other Party to purchase such
shares shall terminate at the close of business on the date fifteen (15) months
from and after the date hereof and any notice delivered to Other Party after
such date shall be null and void and without effect; and
(i). 3 Such right of Stone to require Other Party to purchase such
shares shall only be effective if the closing per share price of MBM's common
stock, as reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") is less than $9.00 per share (the "Average Trading
Price") for each of the immediately preceding thirty (30) consecutive trading
days immediately preceding the date on which such notice by Stone is received by
Other Party.
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(ii) CALL OPTION. Other Party may from time to time, at Other Party's
sole discretion, call from Stone the Option Shares, or any of them, but in any
event not less than such number of shares for which the purchase price hereunder
will be $100,000, at a price of $13.50 per share ("Call Price"). Other Party
may exercise such right by delivery of not less than ten (10) days prior written
notice to Stone as provided for herein at a date not earlier than six (6) months
from and after the date hereof and not later than the close of business on the
date eighteen (18) months from and after the date hereof.
(iii) EXERCISE OF RIGHTS.
(iii). 1 The rights granted to each party hereunder shall be
exercised by such party in a written notice provided to the other party at
the address and in the manner stated in Paragraph 12 below. Payment for the
shares pursuant to such notice shall be made by bank or certified check,
payable to the order of Stone in the full amount of the purchase price of the
shares so purchased. Such payment shall be made upon receipt by Other Party
of all of the following documents:
(iii).1.1 A certificate or certificates evidencing all Option
Shares to be so purchased;
(iii).1.2 Stock powers endorsed in blank by Stone for all such
Option Shares to be purchased with signatures
guaranteed by a national bank or a member firm of the
New York Stock Exchange; and
(iii).1.3 Any other documents or instruments required by MBM or
the Other Party to effect the transfer to Other Party
or its designee of such Option Shares to be purchased.
(iii). 2 In the event of delivery to Stone of notice to purchase by
Other Party, Stone shall deliver to Other Party all certificates and stock
powers required hereunder within ten (10) days of receipt by Stone of such
notice.
(iv) ASSIGNMENT. Stone may not, without the prior written consent of
Other Party, assign, transfer, pledge or hypothecate in any way, this Agreement
or any rights granted hereunder in regard to the Option Shares, or any other
rights or obligations hereunder, other than by will or the laws of descent and
distribution; PROVIDED, HOWEVER, that any exercise by Stone's heirs or legal
representatives of any rights granted to Stone hereunder, shall be subject to
all terms and conditions hereof. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of this Agreement by Stone contrary to the
provisions of this Agreement, and the levy of any attachment or similar
proceeding upon Stone's rights hereunder, shall be null and void and without
effect.
(v) STOCK SPLITS, ETC. In the event of any stock splits, reverse splits,
stock
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dividends or other similar actions by MBM with respect to its common
stock, the Put Price, the Average Trading Price and the Call Price shall be
adjusted accordingly.
6. BUSINESS DAYS. If any commencement, termination or expiration date
falls on a day which is not a business day in the State of New York, such
commencement, termination or expiration, as the case may be, shall be effective
on the immediately succeeding business day.
7. CONSENT TO JURISDICTION AND APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS. The parties hereto irrevocably consent and submit to the non-exclusive
jurisdiction of the Supreme Court of the State of New York in New York County
and the United States District Court for the Southern District of New York in
connection with any action, proceeding or claim arising out of or relating to
this Agreement. Stone hereby irrevocably appoints and designates the law firm
of Ruskin, Moscou, Xxxxx & Faltischek, P.C. (or its successor in business) as
his agent for service of process in New York and agrees to consider any legal
process or any demand or notice made or served on the said agent as being made
on him. Stone hereby agrees that separate confirmation by such agent of the
foregoing irrevocable appointment as agent for service of process is not
required.
8. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION OR PROCEEDING OF ANY KIND WITH RESPECT TO, IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT, ANY INSTRUMENT, DOCUMENT OR GUARANTY DELIVERED
PURSUANT HERETO, OR THE VALIDITY, PROTECTION, INTERPRETATION, ADMINISTRATION,
COLLECTION OR ENFORCEMENT HEREOF.
9. ABSENCE OF RESTRICTIONS. Stone represents and warrants that he is not
a party to any agreement or contract pursuant to which there is any restriction
or limitation upon his entering into this Agreement.
10. FURTHER INSTRUMENTS. Stone will execute and deliver all such other
further instruments and documents as may be necessary, in the opinion of Other
Party, to carry out the purposes of this Agreement.
11. INVALIDITY AND SEVERABILITY. If any provisions of this Agreement are
held invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions of this Agreement, and, to that extent, the
provisions of this Agreement are intended to be and shall be deemed severable.
12. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if delivered by hand or by
Federal Express or other nationally recognized overnight delivery services or if
sent by registered or certified mail, as follows:
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As to Stone: Xxxxxx X. Xxxxx
000 Xxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
As to :
or to such other address as either party hereto may designate by notice given in
accordance with this Agreement.
13. WAIVER OF BREACH. Waiver by either party of a breach of any provision
of this Agreement by the other shall not operate or be construed as a waiver of
any subsequent breach by such other party.
14. ENTIRE AGREEMENT. This instrument contains the entire Agreement of
the parties as to the subject matter hereof. It may not be changed orally, but
only by an Agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension or discharge is sought.
15. APPLICABLE LAW. This Agreement shall be construed in accordance with
the laws of the State of New York.
16. NEGOTIATIONS. This Agreement is the product of full and complete
negotiations at arm's length by the parties hereto. In view of the negotiations
which have culminated in the execution of this Agreement, no prior drafts,
letters or memoranda prepared by either party hereto shall be used to construe
or interpret any provision hereof, nor shall either party hereto be considered
the "drafter" of this Agreement for the purpose of construing the terms,
conditions and obligations set forth herein.
17. ATTORNEYS' FEES AND EXPENSES.
(v). 1 If Other Party brings legal proceedings to enforce its
rights under this Agreement and is successful in doing so, it shall be entitled,
in addition to all other remedies, to reimbursement by Stone for its costs and
expenses, including reasonable attorneys' fees. If Other Party brings such
proceedings and is unsuccessful, Other Party shall reimburse Stone for his costs
and expenses, including reasonable attorneys fees.
(v). 2 If Stone brings legal proceedings to enforce his rights
under this Agreement and is successful in doing so, he shall be entitled, in
addition to all other remedies, to reimbursement by Other Party for his costs
and expenses, including reasonable attorneys' fees. If Stone bring such
proceedings and is unsuccessful, he shall reimburse Other Party for its costs
and expenses, including reasonable attorneys' fees.
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IN WITNESS WHEREOF, Other Party has caused this Agreement to be executed on
its behalf and Stone has signed this Agreement as of the date first above
written.
[OTHER PARTY]
By:_______________________________
Title:______________________________
__________________________________
Xxxxxx X. Xxxxx
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