This AGREEMENT dated as of April 17, 1998 is made and entered into by
and between ▇▇▇▇▇▇-Field Health Products, Inc., a Delaware corporation (the
"Company"), and each of the stockholders of the Company listed on the signature
pages hereto (the "▇▇▇▇▇ Family Stockholders").
WHEREAS, the Company and the ▇▇▇▇▇ Family Stockholders have entered
into a Stockholders Agreement, dated as of September 5, 1997, by and among the
Company, the ▇▇▇▇▇ Family Stockholders, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, BIL (Far East Holdings)
Limited and BIL Securities (Offshore) Ltd. (the "Stockholders Agreement");
WHEREAS, the Company and the ▇▇▇▇▇ Family Stockholders have entered
into a Registration Rights Agreement, dated as of September 5, 1997 (the
"Registration Rights Agreement"); and
WHEREAS, the Company and the ▇▇▇▇▇ Family Stockholders wish to
terminate the Stockholders Agreement and to enter into alternative arrangements;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Except as otherwise specifically indicated, the
following terms have the following meanings for all purposes of this Agreement:
"Affiliate" shall have the meaning assigned thereto in Rule 405, as
presently promulgated under the Securities Act.
"beneficially owns" (or comparable variations thereof) has the meaning
set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act) other than an Exempt Person, (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as defined above), other than an Exempt
Person, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial
ownership" of all securities that such person has the right to acquire, whether
such right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition), directly or indirectly, of 50% or more of the Voting
Securities of the Company (measured by Voting Power rather than number of
shares), (iv) during any period of 12 consecutive months after the date of this
Agreement, individuals who at the beginning of any such 12-month period
constituted the Board of Directors of the Company, together with any Continuing
Directors, cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; and (v) the Company consolidates with,
or merges with or into, any Person or sells, assigns, conveys, transfers, leases
or otherwise disposes of all or substantially all of its assets to any Person,
or any Person consolidates with, or merges with or into, the Company, in any
such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where the Voting Securities of
the Company outstanding immediately prior to such transaction is converted into
or exchanged for Voting Securities of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such
issuance), but only if the condition specified in clause (iv) also has occurred.
"Continuing Director" means (i) any individual serving as a member of
the Board of Directors at the time of this Agreement for so long as such
individual is a member of the Board of Directors, and (ii) any individual who is
recommended or elected to serve as a member of the Board of Directors by at
least a majority of the Continuing Directors then in office, for so long as such
individual is a member of the Board of Directors.
"DGCL" means the General Corporation Law of the State of Delaware.
"Equity Securities" means Voting Securities, Convertible Securities and
Rights to Purchase Voting Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Exempt Person" means the Company or any employee benefit plan or stock
ownership plan of either the Company or any of its subsidiaries.
"Liens" means any lien, claim, mortgage, encumbrance, pledge, security
interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership, trust, other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
- 2 -
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Restricted Group" means (i) any ▇▇▇▇▇ Family Stockholder, (ii) any and
all Persons directly or indirectly controlled by or under common control with
any ▇▇▇▇▇ Family Stockholder, (iii) if such ▇▇▇▇▇ Family Stockholder is an
individual, (a) any member of such ▇▇▇▇▇ Family Stockholder's family (including
any spouse, parent, sibling, child, grandchild or other lineal descendant,
including adoptive children), (b) the heirs, executors, personal representatives
and administrators of any of the foregoing persons, (c) any trust established
for the benefit of any of the foregoing persons and (d) any charitable
foundations established by any of the foregoing persons, and (iv) any and all
groups (within the meaning of Section 13(d)(3) of the Exchange Act) of which any
▇▇▇▇▇ Family Stockholder or any Person directly or indirectly controlling,
controlled by or under common control with such ▇▇▇▇▇ Family Stockholder is a
member, other than any such group not acting for the purpose of acquiring,
holding or beneficially owning Equity Securities.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which the Company or the ▇▇▇▇▇ Family
Stockholders, as the case may be, directly or indirectly through Subsidiaries or
otherwise, beneficially owns more than fifty percent (50%) of either the equity
interest in, or the Voting Power of, such Person.
"Voting Power" means, with respect to any Outstanding Voting
Securities, the highest number of votes that the holders of all such Outstanding
Voting Securities would be entitled to cast for the election of directors or on
any other matter (except to the extent such voting rights are dependent upon
events of default or bankruptcy), assuming, for purposes of this computation,
the conversion or exchange into Voting Securities of Convertible Securities
(whether presently convertible or exchangeable or not) and the exercise of
Rights to Purchase Voting Securities (whether presently exercisable or not), in
either case to the extent that any such action would increase the number of such
votes.
"Voting Securities" means the Company Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities; and "Outstanding
- 3 -
Voting Securities" means at any time the then issued and outstanding Voting
Securities, Convertible Securities (which shall be counted at the maximum number
of Voting Securities for which they can be converted or exchanged) and Rights to
Purchase Voting Securities (which shall be counted at the maximum number of
Voting Securities for which they can be exercised).
2. Termination of Stockholders Agreement; Continuation of Registration
Rights Agreement. The Stockholders Agreement is hereby terminated in all
respects. The Registration Rights Agreement will continue in full force and
effect in accordance with its terms. In connection with any transaction
permitted pursuant to this Agreement, the Company shall or shall cause any
legend not otherwise required by applicable law to be promptly removed from
certificates evidencing Equity Securities.
3. Board of Directors. Effective as of the date of this Agreement, J.
▇▇▇ ▇▇▇▇▇ hereby resigns his seat on the Board of Directors and the ▇▇▇▇▇ Family
Stockholders relinquish their entitlement, pursuant to the Stockholders
Agreement, to a seat on the Board of Directors; provided that J. ▇▇▇ ▇▇▇▇▇ is
not prohibited from becoming a director of the Company in the future following a
Change in Control.
4. Press Release. Prior to the opening of the New York Stock Exchange
on April 20, 1998, the Company will issue a press release in the form of Exhibit
A attached hereto (the "Press Release").
5. Purchases of Company Common Stock. Commencing on the second business
day following the issuance of the Press Release, the ▇▇▇▇▇ Family Stockholders
intend, subject to market conditions and to the extent permitted by applicable
laws, to initiate, within a two-week period (the "Purchase Period"), the
purchase in the open market of up to a number of shares of common stock, par
value $.025 per share, of the Company (the "Company Common Stock"), equal to the
greater of (i) 370,000 shares of Company Common Stock and (ii) a number of
shares of Company Common Stock which, when added to the ▇▇▇▇▇ Family
Stockholders current holdings, will not exceed 10% of the Voting Power of the
Outstanding Voting Securities (the "Stock Purchases").
6. Limitation on Acquisition of Equity Securities. For a period of five
(5) years from the date of this Agreement, other than any Stock Purchases
completed during the Purchase Period, no ▇▇▇▇▇ Family Stockholder shall,
directly or indirectly, purchase or acquire, or make any offer to or agree to
purchase or acquire, beneficial ownership of any additional Equity Securities
if, after giving effect to such purchase or acquisition, the beneficial
ownership of Company Common Stock by the ▇▇▇▇▇ Family Stockholders would exceed
ten percent (10%) of the Voting Power of the Outstanding Voting Securities,
except for acquisitions by way of stock dividends, stock splits or other
- 4 -
distributions or offerings made available to holders of Company Common Stock
generally.
7. Standstill. For a period of five (5) years from the date of this
Agreement, but only during such periods as members of the Restricted Group own
in the aggregate five percent (5%) of the Voting Power of the Outstanding Voting
Securities, no member of the Restricted Group will, and they will not assist or
encourage others (including by providing financing) to, directly or indirectly
(i) acquire or agree, offer, seek or propose (whether publicly or otherwise) to
acquire ownership (including but not limited to beneficial ownership) of any
substantial portion of the assets or Equity Securities of the Company, whether
by means of a negotiated purchase of assets, tender or exchange offer, merger or
other business combination, recapitalization, restructuring or other
extraordinary transaction (a "Business Combination"), or (ii) engage in any
"solicitation" of "proxies" (as such terms are used in the proxy rules
promulgated under the Exchange Act, but disregarding clause (iv) of Rule
14a-1(1)(2) and including any exempt solicitation pursuant to Rule 14a-2(b)(1)
or (2)), or form, join or in any way participate in a "group" (as defined under
the Exchange Act), other than a group consisting solely of members of the
Restricted Group, with respect to any Equity Securities; provided that the ▇▇▇▇▇
Family Stockholders will be free to (x) tender their shares of Company Common
Stock in connection with a third party tender or exchange offer for the Company
regardless of whether such tender offer is recommended by the Board of
Directors, (y) participate in any other offer made generally to holders of any
class of Equity Securities and (z) conduct a "solicitation" of "proxies" of
other members of the Restricted Group. No member of the Restricted Group will
request the Company or any of its Representatives to amend or waive any
provision of this paragraph (including this sentence) or Section 5. Nothing
contained in this Section 7 is intended to or shall limit the rights of the
▇▇▇▇▇ Family Stockholders to purchase additional Equity Securities as permitted
by Section 6, to vote their Equity Securities as provided in Section 8(b) or to
dispose of their Equity Securities to a person engaged in activities described
in clause (i) or (ii) above or otherwise.
8. Ownership and Voting of Company Shares. (a) Each ▇▇▇▇▇ Family
Stockholder represents and warrants to the Company that such Stockholder owns,
beneficially and of record, as of the date hereof, the number of shares of
Company Common Stock listed on Schedule I hereto (collectively, the "Company
Shares"), subject to no rights of others and free and clear of all Liens. Such
▇▇▇▇▇ Family Stockholder's right to vote or assign, pledge, hypothecate or
otherwise transfer or dispose of ("Dispose" or a "Disposition") of the Company
Shares beneficially owned by such ▇▇▇▇▇ Family Stockholder is not subject to any
voting trust, voting agreement, voting arrangement or proxy and such ▇▇▇▇▇
Family Stockholder has not entered into any contract, option or other
arrangement or undertaking with respect thereto. The
- 5 -
representations and warranties in this Section 8(a) are subject to the rights,
Liens and arrangements relating to ▇▇▇▇▇ Holdings-I, L.P., The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ Trust, The ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Trust and The ▇.▇. ▇▇▇▇▇ Foundation, Inc.
(b) Each ▇▇▇▇▇ Family Stockholder will, with respect to those Company
Shares that such Stockholder either owns of record on the record date for voting
at the 1998 Annual Meeting of Stockholders of the Company (the "1996 Annual
Meeting") or special meeting of Company stockholders prior to the 1998 Annual
Meeting or for granting any written consent in connection with the solicitation
of written consents in lieu of such a meeting or with respect to which such
▇▇▇▇▇ Family Stockholder otherwise controls the vote, vote or cause to be voted
such shares (or execute written consents with respect to such shares) (x) for
the nominees recommended by the Board of Directors, (y) on all other proposals
of the Board of Directors, as the Restricted Group determines in its sole
discretion and (z) on all proposals of any other stockholder of the Company, in
accordance with the recommendation of the Board of Directors. Notwithstanding
the foregoing, (i) to the extent that any member of the Restricted Group holds
or is empowered to vote or to effect the voting of Voting Securities in a
fiduciary or comparable capacity and, in the exercise of such duties, such
member of the Restricted Group determines that it is not appropriate to vote
such Voting Securities in accordance with the recommendation of the Board of
Directors as contemplated by clause (z) above, then such member of the
Restricted Group may vote such Voting Securities in such manner as he or she
determines is appropriate. The provisions of this paragraph (b) shall terminate
after the 1998 Annual Meeting, after which time the Restricted Group shall be
free to vote their shares in their absolute discretion.
9. No Litigation. (a) The ▇▇▇▇▇ Family Stockholders will not commence
any lawsuits against the Company or any of its former, current or future
officers, directors or Affiliates arising out of or related to matters occurring
on or prior to the date of this Agreement and will not become active
participants in any of the class action lawsuits currently pending against the
Company at the date of this Agreement (the "Current Class Action Lawsuits") or
any class action lawsuits that may be filed arising out of circumstances leading
or related to the Current Class Action Lawsuits; provided that the ▇▇▇▇▇ Family
Stockholders (i) may participate in any recovery to which they are entitled in
such class action lawsuits as stockholders of the Company, (ii) may participate
in depositions or interrogatories or otherwise act as witnesses or otherwise
participate to the extent required by applicable law, regulation or legal
process and (iii) may assert affirmative defenses and, to the extent they
determine in good faith that the Company's directors' and officers' insurance
and ability to provide indemnity will not be sufficient to hold them harmless in
the event of any litigation in which they are named as defendants, bring
counterclaims, cross-claims, claims for contribution and other assertions of
- 6 -
claims against the Company or any of its former, current or future officers,
directors or Affiliates if and when, as to any such counterclaims, cross-claims,
claims for contribution and other assertions of claims, it becomes necessary to
do so in light of applicable rules of procedure, statutes of limitation or other
time bars.
(b) Nothing contained in the immediately preceding paragraph is
intended to or shall limit or impair the existing contractual arrangements of
the Company or any of its Affiliates with the ▇▇▇▇▇ Family Stockholders or the
right of any ▇▇▇▇▇ Family Stockholder to share in the proceeds of the Company's
or its Affiliates' directors' and officers' insurance or benefit from rights to
indemnity provided under any state corporation law or the Company's or any
Affiliate's Certificate of Incorporation or Bylaws or other contractual
arrangements, or to limit or impair the right of any ▇▇▇▇▇ Family Stockholder to
enforce or seek redress for the breach of any of the foregoing rights.
(c) The Company will not commence any lawsuits against any ▇▇▇▇▇ Family
Stockholder or any of their former, current or future officers, directors,
partners, trustees or Affiliates arising out of or related to matters occurring
on or prior to the date of this Agreement; provided that nothing in this
paragraph is intended to or shall limit or impair the ▇▇▇▇▇ Family Stockholders'
contractual arrangements with the Company or any of its Affiliates or to limit
or impair the right of the Company to enforce or seek redress for the breach of
any of such contractual arrangements.
10. Non-Disparagement. The Company and the ▇▇▇▇▇ Family Stockholders
will not hereafter make any oral or written statements or reveal any information
to any person, company or agency which is disparaging or damaging to the
reputation or business of the Company and/or any of its Affiliates (and their
respective former, current or future directors and officers) or the ▇▇▇▇▇ Family
Stockholders, respectively; provided that the foregoing will not restrict any
statement or revelation required by applicable law, regulation or judicial
process.
11. ▇▇▇▇▇ Family Stockholders' Schedule 13D. The ▇▇▇▇▇ Family
Stockholders will either (i) replace their existing Schedule 13D filing with a
Schedule 13G filing or (ii) amend their Schedule 13D filing to reflect the terms
of and trans- actions contemplated by this Agreement and will set forth in Item
4 of such Schedule 13D that the ▇▇▇▇▇ Family Stockholders hold their shares of
Company Common Stock as a "passive investor" for investment purposes only and
that they have no plans or proposals that would result in any of the events
listed in sections (a) through (j) of Item 4 of Schedule 13D. Similar statements
will be made in any other regulatory filings required in connection with the
Stock Purchases.
- 7 -
12. Amendment and Waiver. (a) This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by or on
behalf of each party hereto.
(b) Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
13. Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to any ▇▇▇▇▇ Family Stockholder, to:
c/o Fuqua Capital Corporation
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: J. ▇▇▇ ▇▇▇▇▇
with a copy to:
Kramer, Levin, Naftalis & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Company, to:
▇▇▇▇▇▇-Field Health Products, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
- 8 -
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
14. Irrevocable Appointment of Agent. By the execution and delivery of
this Agreement, including counterparts hereof, each ▇▇▇▇▇ Family Stockholder
hereby irrevocably constitutes and appoints J. ▇▇▇ ▇▇▇▇▇ as the true and lawful
agent and attorney-in-fact of each such ▇▇▇▇▇ Family Stockholder (such
individual, or such other individual as ▇▇▇▇▇ Family Stockholders who own a
majority of the aggregate Equity Securities then owned by all the ▇▇▇▇▇ Family
Stockholders (the "Requisite Stockholders") shall designate in writing to the
Company from time to time, is herein referred to as the "Agent"), to do or
refrain from doing all such further acts and things, and to execute all such
documents, as the Agent shall deem necessary or appropriate in connection with
this Agreement. Unless there is no existing person that has been designated to
act as Agent by the Requisite Stockholders, all rights of the ▇▇▇▇▇ Family
Stockholders under this Agreement shall be exercised by the ▇▇▇▇▇ Family
Stockholders only through or by the Agent in his or her capacity as agent of the
▇▇▇▇▇ Family Stockholders hereunder, and the Company shall not be required to
take directions from any other Stockholder for so long as such Agent continues
to serve and has not otherwise been removed as Agent pursuant to notice to the
Company from the Requisite Stockholders. If at any time no Person is serving as
Agent, the Company shall not be required to take action except upon the
direction of the Requisite Stockholders.
15. Entire Agreement. This Agreement supersedes all prior discussions
and agreements among the parties hereto with respect to the subject matter
hereof, and contains, together with the Registration Rights Agreement, the sole
and entire agreement among the parties hereto with respect to the subject matter
hereof.
16. No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto, and it is
not the intention of the parties to confer third-party beneficiary rights upon
any other Person.
- 9 -
17. No Assignment; Binding Effect. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any parties hereto
without the prior written consent of the other party hereto and any attempt to
do so will be void. Subject to the preceding sentence, this Agreement is binding
upon, inures to the benefit of and is enforceable by the parties hereto and
their respective successors and assigns and legal representatives.
18. Specific Performance; Legal Fees. The parties acknowledge that
money damages are not an adequate remedy for violations of any provision of this
Agreement and that any party may, in such party's sole discretion, apply to a
court of competent jurisdiction for specific performance for injunctive or such
other relief as such court may deem just and proper in order to enforce any such
provision or prevent any violation hereof and, to the extent permitted by
applicable law, each party waives any objection to the imposition of such
relief. The parties hereto agree that, in the event that any party to this
Agreement shall bring any legal action or proceeding to enforce or to seek
damages or other relief arising from an alleged breach of any term or provision
of this Agreement by any other party, the prevailing party in any such action or
proceeding shall be entitled to an award of, and the other party to such action
or proceeding shall pay, the reasonable fees and expenses of legal counsel to
the prevailing party.
19. Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
20. Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
21. Governing Law. Except to the extent that the DGCL is mandatorily
applicable to the rights and obligations of the parties, this Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to a contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
22. Consent to Jurisdiction and Service of Process. Each party hereby
irrevocably submits to the exclusive jurisdiction of the United States District
Court for the Southern District of New York or any court of the State of New
York
- 10 -
located in the Borough of Manhattan in the City of New York in any action, suit
or proceeding arising in connection with this Agreement, agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue therein
to the extent permitted by law), and agrees to delivery of service of process by
any of the methods by which notices may be given pursuant to Section 13, with
such service being deemed given as provided in such Section; provided, however,
that such consent to jurisdiction is solely for the purpose referred to in this
Section 22 and shall not be deemed to be a general submission to the
jurisdiction of said courts or in the State of New York other than for such
purpose. Nothing herein shall affect the right of any party to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, each party hereto has signed this Agreement, or
caused this Agreement to be signed by its officer thereunto duly authorized, as
of the date first above written.
▇▇▇▇▇▇-FIELD HEALTH PRODUCTS, INC.
By:_____________________________
Name:
Title:
/s/ ▇.▇. ▇▇▇▇▇
--------------
▇.▇. ▇▇▇▇▇
/s/ J. ▇▇▇ ▇▇▇▇▇
----------------
J. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ HOLDINGS, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇
----------------
Name: J. ▇▇▇ ▇▇▇▇▇
Title: President
▇▇▇▇▇ HOLDINGS-I, L.P.
By: ▇▇▇▇▇ HOLDINGS, INC., its General Partner
By: /s/ J. ▇▇▇ ▇▇▇▇▇
----------------
Name: J. ▇▇▇ ▇▇▇▇▇
Title: President, ▇▇▇▇▇ Holdings, Inc.
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THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ TRUST
By: /s/ ▇.▇. ▇▇▇▇▇
--------------
Name: ▇.▇. ▇▇▇▇▇
Title: Trustee
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TRUST
By: /s/ ▇.▇. ▇▇▇▇▇
--------------
Name: ▇.▇. ▇▇▇▇▇
Title: Trustee
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THE ▇.▇. ▇▇▇▇▇ FOUNDATION, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
--------------
Name: ▇.▇. ▇▇▇▇▇
Title: Chairman/President
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SCHEDULE I
Company Shares Owned by the ▇▇▇▇▇ Family Stockholders
Stockholder Number
▇. ▇. ▇▇▇▇▇ 781,687
J. ▇▇▇ ▇▇▇▇▇ 651,299
▇▇▇▇▇ Holdings - I, L.P. 768,600
The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust 337,770
The ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Trust 337,768
The ▇. ▇. ▇▇▇▇▇ Foundation, Inc. 146,366
EXHIBIT A
Press Release
FOR IMMEDIATE RELEASE Contacts: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief
▇▇▇▇▇▇-FIELD HEALTH PRODUCTS, INC. Operating Officer
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
HAUPPAUGE, NEW YORK 11788 Vice President and
General Counsel
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇-FIELD ANNOUNCES AGREEMENT TO
ALLOW ▇▇▇▇▇ FAMILY TO PURCHASE
ADDITIONAL SHARES OF COMMON STOCK
OF ▇▇▇▇▇▇-FIELD IN THE OPEN MARKET
HAUPPAUGE, NEW YORK, April 20,1998 - ▇▇▇▇▇▇-Field Health Products, Inc.
(NYSE-GFI), a manufacturer and supplier of healthcare products today reported
that the ▇▇▇▇▇ family has informed the Company that it intends to purchase
additional shares of common stock of ▇▇▇▇▇▇-Field in the open market based on
current market prices in an amount not to exceed the greater of 370,000
additional shares of common stock of the Company or such amount which, when
added to the ▇▇▇▇▇ family's current holdings, will not exceed 10% of the voting
power of the Company's outstanding stock. Currently, the ▇▇▇▇▇ family owns
shares of common stock representing approximately 9% of the voting power of the
Company's outstanding stock. In order to facilitate the ▇▇▇▇▇ family's open
market purchases, the ▇▇▇▇▇▇-Field Board of Directors has approved termination
of the Stockholders Agreement with the ▇▇▇▇▇ family and entry into another
agreement incorporating certain of the provisions of such agreement so as to
enable the ▇▇▇▇▇ family to
purchase additional shares in the open market. In addition, ▇▇▇▇▇▇-Field
announced that J. ▇▇▇ ▇▇▇▇▇ has resigned from the Board of Directors.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman of the Board and Chief Executive Officer stated that
"J. ▇▇▇ ▇▇▇▇▇ has decided to leave our Board of Directors in order to give him
more time to pursue his many other interests. We will miss his wisdom and
foresight. I admire and respect ▇.▇. ▇▇▇▇▇ and J. ▇▇▇ ▇▇▇▇▇, and look forward to
their continued participation as major stockholders of ▇▇▇▇▇▇-Field. I am
pleased the ▇▇▇▇▇ family is interested in increasing their ownership in our
Company."
On December 30, 1997, ▇▇▇▇▇▇-Field acquired ▇▇▇▇▇ Enterprises, Inc, which
included the medical products business of Lumex, Basic American and Prism, all
leading companies in their respective markets. The ▇▇▇▇▇ acquisition has
positioned ▇▇▇▇▇▇-Field as one of the leading suppliers of durable medical
products in North America.
▇▇▇▇▇▇-Field maintains distribution and manufacturing facilities throughout
North America. ▇▇▇▇▇▇-Field manufactures, markets and distributes more than
45,000 healthcare and rehabilitation products for hospital, long-term care,
assisted living, physician and home use to home healthcare, physician, hospital
supply and pharmaceutical distributors, retailers and wholesalers.
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
for forward-looking statements. This press release contains forward-looking
statements based on current expectations that could be affected by the risks and
uncertainties involved in ▇▇▇▇▇▇-Field's business. These risks and uncertainties
include, but are not limited to, the effect of economic
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and market conditions, the impact of the consolidation of health care
practitioners, the impact of health care reform, opportunities for acquisitions
and ▇▇▇▇▇▇-Field's ability to effectively integrate acquired companies, the
acceptance and quality of software products, the ability to manage operations in
foreign markets, possible disruptions in ▇▇▇▇▇▇-Field's computer systems or
telephone systems, possible increases in shipping rates or interruptions in
shipping service, the level and volatility of interest rates and currency
values, the impact of current or pending legislation and regulation, as well as
the risks described from time to time in ▇▇▇▇▇▇-Field's reports to the
Securities and Exchange Commission, which include ▇▇▇▇▇▇-Field's Annual Report
on Form 10-K for the year ended December 31, 1997 and ▇▇▇▇▇▇-Field's
Registration Statement on Form S-4 dated as of December 19, 1997. Any actual
purchases of common stock will depend on numerous factors beyond ▇▇▇▇▇▇-Field's
control, including market conditions. Subsequent written or oral statements
attributable to ▇▇▇▇▇▇-Field or persons acting on its behalf are expressly
qualified in their entirety by the cautionary statements in this press release
and those in ▇▇▇▇▇▇-Field's reports previously filed with the Securities and
Exchange Commission.
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