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Exhibit 10.75
XXXXXX-FIELD HEALTH PRODUCTS, INC.
May 12, 1999
BIL Securities (Offshore) Limited
c/o Brierley Investments Limited
Xxxxx 0 Xxxxxxxx Xxxxxxxx
00-00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxx
Gentlemen:
This will confirm our agreement with respect to the matters set forth
below.
1. Exchange of Note for Stock. Effective as of the date of this letter
agreement, BIL Securities (Offshore) Limited, a company organized under the laws
of New Zealand ("BIL" or "you") will exchange, transfer, assign and surrender
all of BIL's right, title and interest in, to and under that certain 7.7% Note
due April 1, 2001, dated December 10, 1996, in the original principal amount of
$4,000,000, given by Xxxxxx-Field Health Products, Inc. (the "Company") to BIL,
and the obligations evidenced thereby, and in consideration therefor the Company
will issue, sell and convey to BIL 2,036 fully-paid, validly-issued,
nonassessable shares of its Series D Preferred Stock, par value $.01 per share
(the "Series D Shares"). The Series D Shares will be issued pursuant to a
Certificate of Designations in the form attached as Annex A, a copy of which
will have been duly executed, acknowledged and filed in accordance with the
requirements of the General Corporation Law of the State of Delaware. BIL
represents and warrants that it is the sole owner of the Note, that the Note has
not been pledged or assigned and that no other person or entity has any claim on
or interest in the Note. All of BIL's rights in respect of accrued unpaid
interest on the Note will be conveyed with the Note and accordingly no further
payments of interest or principal will be made on the Note.
2. Deliveries. In order to give effect to the foregoing, (i) BIL will deliver to
the Company (x) the original Note, marked "CANCELLED" and (y) a duly executed
Release and Waiver in the form attached as Annex B; and (ii) the Company will
deliver to BIL a certificate in respect of the Series D Shares, in proper form
to convey title to the Series D Shares to BIL free and clear of liens,
encumbrances, security agreements, claims, charges, restrictions or other
interests. These deliveries shall take place at the principal business offices
of the Company at 00 Xxxxxx Xxxx, Xxx Xxxxx, Xxx Xxxx, or at such other time and
place as BIL and the Company may agree, not later than 5:00 P.M. on Friday, May
14, 1999.
3. Securities Law Matters. You represent and agree that you are acquiring the
Series D Shares for investment purposes only and not with a view to any resale
or distribution, that future transfers of the Series D Shares will be subject to
restrictions imposed under the federal securities laws and that any certificates
issued in respect of the Series D Shares will bear legends in customary form
reflecting those restrictions.
4. Stockholders Agreement. The Series D Shares shall be subject to the
provisions of the Stockholders Agreement, dated as of September 3, 1996, as
amended and as may be further amended
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from time to time in the future, among the Company, BIL and Xxxxx Xxxxxxxx, as
if those shares were shares of Common Stock.
5. Representations and Warranties of the Company.
(a) The Company has the power, authority and legal capacity to enter into
this letter agreement and to perform all of its obligations hereunder. This
letter agreement constitutes the valid and legally binding obligation of the
Company, enforceable in accordance with its terms.
(b) The execution and delivery of this letter agreement and the consummation
of the transactions provided for herein will not result in default under or
cancellation or termination of any material contract, agreement, commitment or
engagement of the Company.
6. Indemnification.
(a) The Company shall indemnify, save and hold harmless BIL, its affiliates
(as defined in Rule 405 under the Securities Act of 1933, as amended) and their
respective successors and assigns from and against any loss, liability or
expense (including without limitation reasonable attorneys' fees) sustained or
incurred by any of them resulting from or arising out of or by virtue of any
breach of any representation, warranty or covenant of the Company in this letter
agreement.
(b) BIL shall indemnify, save and hold harmless the Company, its affiliates
and their respective successors and assigns from and against any loss, liability
or expense (including without limitation reasonable attorneys' fees) sustained
or incurred by any of them resulting from or arising out of or by virtue of any
breach of any representation, warranty or covenant of BIL in this letter
agreement.
7. Miscellaneous.
(a) This letter agreement replaces and supersedes all prior agreements and
negotiations between BIL and the Company with respect to the subject matter
hereof and constitutes the entire agreement of BIL and the Company with respect
to such subject matter.
(b) This letter agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to conflicts of
laws principles.
(c) This letter agreement shall inure to the benefit of and be binding upon
BIL, the Company and their respective successors and assigns.
* * *
If the foregoing accurately reflects your understanding of our
agreement, kindly so indicate by signing in the space provided below, whereupon
this letter agreement will constitute the binding obligation of the Company and
BIL.
Very truly yours,
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By:_______________________________
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Accepted and agreed as of the
date first written above:
BIL SECURITIES (OFFSHORE)
LIMITED
By: _________________________
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