1
EXHIBIT 10.56
/ /
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER SAID ACT AND THE RULES AND
REGULATIONS THEREUNDER OR AN EXEMPTION THEREFROM.
$2,500,000 November 14, 1997
FOR VALUE RECEIVED, Xxxxx Xxxxxxxx, an individual residing at
00 Xxxxx Xxxx, Xxx Xxxxxxxx, Xxx Xxxx (the "Borrower"), hereby promises to pay
to the order of Xxxxxx-Field Health Products, Inc., a Delaware corporation
("GFHP"), or such holder's permitted assigns (collectively, the "Holder"), the
principal sum of Two Million Five Hundred Thousand Dollars ($2,500,000), subject
to increase in the manner described below, and to pay to the Holder interest on
the unpaid principal amount of this Note (as modified and supplemented and in
effect from time to time, this "Note"), all in the manner described below. The
outstanding principal amount of this Note shall be payable on November 14, 2004
(the "Principal Payment Date"). Interest shall accrue on the unpaid principal
amount of this Note outstanding from time to time, commencing with the date of
issuance hereof (the "Issue Date") through but excluding the date such principal
amount is paid in full, at a rate per annum equal to the interest rate in effect
from time to time under GFHP's Revolving Credit and Security Agreement dated as
of December 10, 1996 with IBJ Xxxxxxxx Bank & Trust Company, as lender and
agent, as the same may be amended from time to time, or such other replacement
credit facility as GFHP may designate from time to time as its principal credit
facility (the "Borrowing Rate"). Accrued interest shall be payable in arrears on
each December 1 following the date hereof (each, an "Interest Payment Date")
commencing December 1, 1998, and on the Principal Payment Date. Notwithstanding
the foregoing, on each Interest Payment Date, in lieu of a cash payment by the
Borrower, interest accrued through, but not including, such Interest Payment
Date shall instead be added to the outstanding principal amount of this Note
(each such addition on an Interest Payment Date, a "Capitalized Interest
Payment"). The interest on this Note shall be computed on the basis of a year of
360 days consisting of twelve 30-day months.
ARTICLE I
PAYMENTS AND PREPAYMENTS; PLEDGE AGREEMENT
Section 1.1 Payments Generally. All payments of principal and
interest (other than Capitalized Interest Payments)
2
on this Note shall be made in United States dollars, in immediately available
funds, by wire transfer to such account at a commercial bank located in the
United States of America identified in a notice from the Holder to the Borrower
prior to the date of such payment. Any payment received later than 11:00 a.m.
Eastern time on the date on which such payment shall become due shall be deemed
to have been made on the next succeeding Business Day (as defined below). If the
Principal Payment Date would otherwise fall on a day that is not a Business Day,
such due date shall be extended to the next succeeding Business Day, and
interest shall be payable on any principal so extended for the period of such
extension. All amounts payable by the Borrower in respect of this Note shall be
paid free and clear of, and without reduction by reason of, any deduction,
set-off or counterclaim. All payments received by the Holder in respect of this
Note shall be applied first to any accrued and unpaid interest on, and then to
the outstanding principal amount of, this Note. "Business Day" shall mean a day
other than Saturday, Sunday or any other day on which banks in the State of New
York are authorized or required by law to remain closed.
Section 1.2 Prepayments. The Borrower may at any time and from
time to time, at its option, prepay the outstanding principal amount of this
Note, in whole or in part, without penalty or premium, together with accrued
interest on the principal amount being prepaid (the date on which any such
optional or any mandatory prepayment described below is to be made is referred
to herein as a "Prepayment Date"). In addition, the Borrower shall immediately
prepay this Note in full or in part, as the case may be, as follows:
(a) On the date on which the Borrower is scheduled to receive
any cash bonus from GFHP in respect of the Borrower's employment with
GFHP, the Holder shall apply such portion of the amount of such cash
bonus (less any amounts to be withheld by GFHP in respect of income
taxes) as shall be determined by the Stock Option and Compensation
Committee of the Board of Directors of GFHP (or by any successor
committee thereto or, if there is no such committee in existence, by
the Board of Directors of GFHP) to the outstanding principal amount of
this Note and accrued and unpaid interest thereon, without the giving
of notice or the taking of any other action on the part of the Holder
being required.
(b) In the event of the death of the Borrower, this Note shall
continue in full force, in accordance with its terms and, upon the
first anniversary of the date of the death of the Borrower, the
aggregate outstanding principal amount of this Note and accrued and
unpaid interest thereon shall become due and payable in full, without
the giving of any notice or the taking of any other action on the part
of the Holder being required.
-2-
3
(c) In the event of the termination of employment of the
Borrower with GFHP for any reason, the aggregate outstanding principal
amount of this Note and accrued and unpaid interest thereon shall
become due and payable in full on the 180th day following the date of
such termination, without the giving of any notice or the taking of any
other action on the part of the Holder being required.
Section 1.3 Late Payments. If any principal or accrued
interest hereunder is not paid on the Principal Payment Date in accordance with
Section 1.1 hereof or on a Prepayment Date in accordance with Section 1.2 hereof
or on such other date as the principal amount of this Note shall become due and
payable in accordance with the terms hereof, the Borrower shall pay interest on
demand of the Holder from time to time at a rate per annum equal to the
Borrowing Rate plus 2% on any overdue payment of principal and, to the extent
permitted by law, on any overdue interest.
Section 1.4 Right to Offset. The Borrower agrees that, in
addition to (and without limitation of) any right of set-off the Holder may
otherwise have, the Holder shall be entitled, at its option, to offset amounts
owing by the Holder to the Borrower (regardless of whether such amounts are then
due to the Borrower), against any amount payable by the Borrower to the Holder
in respect of this Note that is not paid when due; provided that nothing
contained herein shall require the Holder to exercise any such right.
Section 1.5 Pledge Agreement. The Borrower's obligation to pay
the principal amount of this Note and accrued and unpaid interest thereon is
secured pursuant to the terms of the Pledge Agreement dated as of November 14,
1997 between GFHP and the Borrower.
ARTICLE II
EVENTS OF DEFAULT
2.1 Events of Default. The occurrence of one or more of the
following events shall constitute an "Event of Default" for the purposes of this
Note:
(a) the Borrower fails to pay any amount owing under this Note
when due (whether at stated maturity, by acceleration, in
connection with a required prepayment or otherwise); or
(b) the Borrower shall (i) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of all or a substantial part
of his assets or property, (ii) make a general assignment for
the benefit of
-3-
4
creditors, (iii) commence a voluntary case under the Federal
Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency
or adjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition
filed against him in an involuntary case under the Federal
Bankruptcy Code, or (vi) generally fail to pay his debts as
they come due; or
(c) a proceeding or case shall be commenced, without the
application or consent of the Borrower, in any court of
competent jurisdiction, seeking (i) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like
of all or any substantial part of his assets or property, or
(ii) similar relief in respect of the Borrower under any law
relating to bankruptcy, insolvency or adjustment of debts, and
such proceeding or case shall continue undismissed, or an
order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in
effect, for a period of sixty (60) or more days; or an order
for relief against the Borrower shall be entered in an
involuntary case under the Federal Bankruptcy Code.
Section 2.2 Acceleration of Maturity; Rescission and
Annulment. If any Event of Default specified in paragraph (b) or (c) of Section
2.1 hereof occurs, the principal of this Note and accrued interest thereon shall
automatically become due and payable immediately without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Borrower. If any Event of Default specified in paragraph (a) of
Section 2.1 hereof occurs and is continuing, then and in every such case the
Holder may declare the principal of this Note and accrued interest thereon to be
due and payable immediately, by a notice in writing to the Borrower, and upon
any such declaration such principal and interest shall become due and payable
immediately without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the Borrower.
Notwithstanding the foregoing, at any time after such a
declaration of acceleration has been made and before a judgment or decree for
payment of the money due has been obtained, the Holder may rescind and annul
such declaration and its consequences if it so notifies the Borrower of its
desire to do so. Upon and to the extent of any such rescission or annulment,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Note, but no such
rescission or annulment shall extend to any subsequent or other default or
impair any right consequent thereon.
-4-
5
Section 2.3 Preservation of Remedies. If any Event of Default
shall occur and be continuing, the Holder may proceed to protect and enforce its
rights under this Note by exercising such remedies as are available to the
Holder in respect thereof under applicable law, either by suit in equity or by
action at law, or both, whether for specific performance of any covenant or
other agreement contained in this Note or in aid of the exercise of any power
granted in this Note. No remedy conferred in this Note is intended to be
exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or
now or hereafter existing at law or in equity or by statute or otherwise. No
delay or omission of the Holder to exercise any right or remedy with respect to
this Note will impair, or constitute a waiver of, any such right or remedy.
ARTICLE III
WAIVER AND AMENDMENT
Section 3.1 Amendment. No amendment of this Note shall be
effective unless in writing and signed by the Holder and the Borrower.
Section 3.2 Waiver. No waiver of any provision of this Note
shall be effective against the Holder unless in writing and signed by the
Holder.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Notices. All notices and other communications in
respect of this Note (including, without limitation, any modifications of, or
requests, waivers or consents under, this Note) shall be given or made in
writing (including, without limitation, by telecopy) to the Borrower or the
Holder, as the case may be, at the applicable "Address for Notices" specified on
the signature page hereof, or at such other address as shall be designated by
either party in a notice to the other party. Except as otherwise provided in
this Note, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
Section 4.2 Governing Law. This Note shall be governed by, and
construed in accordance with, the law of the State of New York without regard to
the conflicts of laws principles thereof.
Section 4.3 Successors. All agreements of the
-5-
6
Borrower in this Note shall bind his heirs, executors, administrators and
assigns. This Note shall inure to the benefit of the Holder and its successors,
transferees and assigns.
Section 4.4 Severability. In case any provision in this Note
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 4.5 Headings, etc. The headings of the Articles and
Sections of this Note have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
-6-
7
IN WITNESS WHEREOF, the Borrower has executed this Note as of
the date first above written.
/s/ Xxxxx Xxxxxxxx
------------------------------
Xxxxx Xxxxxxxx
Address for Notices:
c/x Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
ACCEPTED BY THE HOLDER:
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, General
Counsel and Secretary
Address for Notices:
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Vice President,
General Counsel
and Secretary
-7-
