POLYMEDICA INDUSTRIES, INC.
POLYMEDICA PHARMACEUTICALS (U.S.A.), INC.
POLYMEDICA PHARMACEUTICALS (PUERTO RICO), INC.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
August 2, 1996 Exhibit 4.12
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
Xxxx Xxxxxxx Place
P. O. Box 111
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
POLYMEDICA INDUSTRIES, INC., a Massachusetts corporation (the "Parent"),
and POLYMEDICA PHARMACEUTICALS (U.S.A.), INC., a Massachusetts corporation and a
Wholly-Owned Subsidiary of the Parent (the "Company"), and POLYMEDICA
PHARMACEUTICALS (PUERTO RICO), INC., a Massachusetts corporation and a
Wholly-Owned Subsidiary of the Company ("PPR") (the Company and PPR are
sometimes collectively referred to as the "Borrowers" and each as a "Borrower"),
agree with you as follows:
1. Definitions. Reference is hereby made to that certain Note and Warrant
Agreement dated January 26, 1993, as amended and supplemented by nine letter
agreements dated April 27, 1993, June 15, 1993, March 29, 1994, June 17, 1994,
June 30, 1994, October 27, 1994, June 26, 1995, October 18, 1995, January 1,
1996, and June 19, 1996 (the "Note and Warrant Agreement"). Capitalized terms
used herein without definition have the meanings ascribed to them in the Note
and Warrant Agreement.
2. Amendment of Section 4.2(n) (ii) of the Warrants. In consideration of
the representations, warranties and agreements of the Parent and the Borrowers
set forth herein, you agree that section 4.2(n) (ii) of each of the Warrants is
hereby amended by deleting the figure "2,500,000" appearing therein and
inserting the figure "3,000,000" in place thereof.
3. Waiver of Default under Section 14.7 of the Note and Warrant Agreement.
The Parent and the Borrowers hereby request that you waive any Default or Event
of Default arising solely from the failure of the Company to comply with the
provisions of section 14.7 (b) of the Note and Warrant Agreement for the
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period of four (4) consecutive quarterly accounting periods ended June 30, 1996.
In consideration of the representations, warranties and agreements of the Parent
and the Borrowers set forth herein, you, by your signature below, hereby grant
such waiver, solely with respect to such period four (4) consecutive quarterly
accounting periods.
4. No Default, Representations and Warranties, etc.
(a) The Parent and the Borrowers represent and warrant that the
representations and warranties contained in the Note and Warrant Agreement and
the other Operative Agreements are correct on and as of the date hereof as if
made on such date (except to the extent affected by the consummation of
transactions permitted by the Note and Warrant Agreement) and that no Default or
Event of Default exists.
(b) The Parent and the Borrowers each ratify and confirm the Note and
Warrant Agreement and each of the other Operative Agreements to which each is a
party and agree that each such agreement, document and instrument is in full
force and effect, that its obligations thereunder and under this Letter
Agreement are its legal, valid and binding obligations enforceable against it in
accordance with the terms thereof and hereof and that it has no defense, whether
legal or equitable, setoff or counterclaim to the payment and performance of
such obligations.
(c) The Parent and the Borrowers agree that (i) if any default shall be
made in the performance or observance of any covenant, agreement of condition
contained in this Letter Agreement or in any agreement, document or instrument
executed in connection herewith or pursuant hereto or (ii) if any representation
or warranty made by the Parent or the Borrowers herein or therein shall prove to
have been false or incorrect on the date as of which made, the same shall
constitute an Event of Default under the Note and Warrant Agreement and the
other Operative Agreements and, in such event, you and each other holder of any
of the Notes shall have all rights and remedies provided by law and/or provided
or referred to in the Note and Warrant Agreement and the other Operative
Agreements. The Parent and the Borrowers further agree that this Letter
Agreement is an Operative Agreement and all references in the Note and Warrant
Agreement and in any other of the other Operative Agreements referred to therein
shall include this Letter Agreement.
5. Payment of Transaction Costs. Concurrently with the execution of this
Letter Agreement, the Parent and the Borrowers shall pay all reasonable fees and
disbursements incurred by you at or prior to such time, including, without
limitation, the reasonable fees, expenses and disbursements of your special
counsel.
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6. Governing Law. This Letter Agreement, including the validity hereof and
the rights and obligations of the parties hereunder, shall be construed in
accordance with and governed by the domestic substantive laws of The
Commonwealth of Massachusetts without giving effect to any choice of law or
conflicts of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
7. Miscellaneous. The headings in this Letter Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. This
Letter Agreement embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings relating
to the subject matter hereof. In case any provision in this Letter Agreement
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. This Letter Agreement may be executed in any number of
counterparts and by the parties hereto on separate counterparts but all such
counterparts shall together constitute but one and the same instrument.
(The remainder of this page is left blank intentionally)
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If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart hereof, whereupon this Letter
Agreement shall become a binding agreement under seal among the parties hereto.
Please then return one of such counterparts to the Company.
Very truly yours,
POLYMEDICA INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxx Xxx
Xxxxxx Xxxxx Xxx
Chairman and Chief Executive Officer
POLYMEDICA PHARMACEUTICALS
(U.S.A.), INC.
By: /s/ Xxxxxx Xxxxx Xxx
Xxxxxx Xxxxx Xxx
Chief Executive Officer
POLYMEDICA PHARMACEUTICALS
(PUERTO RICO), INC.
By: /s/ Xxxxxx Xxxxx Xxx
Xxxxxx Xxxxx Xxx
Chief Executive Officer
The terms and provisions of the foregoing Letter Agreement are hereby
acknowledged and agreed to.
POLYMEDICA SECURITIES, INC. POLYMEDICA PHARMACEUTICALS
SECURITIES, INC.
By: /s/ Xxxxxx Xxxxx Xxx By: /s/ Xxxxxx Xxxxx Xxx
Xxxxxx Xxxxx Xxx Xxxxxx Xxxxx Xxx
President President
The foregoing is hereby accepted and agreed to:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: /s/ D. Xxxx Xxxxxxx
D. Xxxx Xxxxxxx
Senior Investment Officer
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