Exhibit (d)(1)(R)
▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
December __, 2000
Kanders & Company, Inc.
Two ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: The ▇▇▇▇▇▇ Biomechanics Group, Inc.: Agreement to Assign Certain
Rights
Dear Sirs:
Reference is made to each of the following documents:
(i) Tender Offer Agreement (the "Tender Offer Agreement"), of even date
herewith, by and among OrthoStrategies, Inc., a New York corporation
("OS"), OrthoStrategies Acquisition Corp., a New York corporation
("OrthoStrategies"), and The ▇▇▇▇▇▇ Biomechanics Group, Inc., a New
York Corporation ("▇▇▇▇▇▇");
(ii) Option Agreement (the "Option"), of even date herewith, between OS
and ▇▇▇▇▇▇, pursuant to which ▇▇▇▇▇▇ granted OS the right to
purchase 1,400,000 shares of common stock, par value $.02 per share
of ▇▇▇▇▇▇ ("Common Stock"), at an exercise price of $1.525 per
share;
(iii) Registration Rights Agreement (the "Registration Rights Agreement"),
of even date herewith, between OS and ▇▇▇▇▇▇, pursuant to which
▇▇▇▇▇▇ will seek to register under the Securities Act of 1933, as
amended, shares of Common Stock acquired by OS upon exercise of the
Option; and
(iv) A Letter Agreement (the "Funding Agreement"), of even date herewith,
among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), and
Kanders &
Company, Inc., ("Kanders & Co.") pursuant to which said parties
agree to fund the amount required to consummate the Tender Offer
Agreement and related expenses in the proportions set forth therein.
1. Each of OrthoStrategies, OS, as the majority shareholder of
OrthoStrategies, and ▇▇▇▇▇▇, as the majority shareholder of OS, agrees as
follows:
(a) Upon the request of Kanders & Co., at the closing of purchase of
shares of Common Stock pursuant to the Tender Offer Agreement,
OrthoStrategies shall, and OS and ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall cause
OrthoStrategies to, pursuant to Section XI. E. of the Tender Offer
Agreement, assign to the persons set forth on Attachment A hereto,
in the amounts set forth on Attachment A hereto, the right to
purchase shares of Common Stock as set forth on Attachment A.
(b) OS shall, pursuant to Section 9.1 of the Option, transfer to the
persons set forth on Attachment A hereto, in the amounts set forth
on Attachment A hereto, options to purchase Common Stock (the
"Transferred Options").
(c) In connection with the transfer of the Transferred Options, OS shall
cause its rights under the Registration Rights Agreement with
respect to the Transferred Options to be assigned, pursuant to
Section 8(f) of the Registration Rights Agreement, to the persons
set forth on Attachment A hereto.
Notwithstanding the foregoing, in the event that fewer than the maximum
number of shares of ▇▇▇▇▇▇ common stock are tendered and purchased pursuant to
the Tender Offer Agreement, the Transferred Options and the related assignment
of rights under the Registration Rights Agreement, and the Options retained by
OS (collectively the "OS Option Portion") shall be adjusted such that the OS
Option Portion shall be the number of shares which can be purchased for an
amount equal to (a) $1,500,000, less (b) the amount actually paid by
OrthoStrategies for the purchase of ▇▇▇▇▇▇ Common Stock pursuant to the Tender
Offer Agreement.
-2-
2. This letter agreement shall be shall be governed by and construed
and enforced in accordance with the laws of the State of New York (without
regard to the conflicts of laws provisions thereof). The parties agree that all
actions and proceedings arising in connection with this letter agreement shall
be tried and litigated only in the federal and state courts located in the
County of New York, State of New York. The parties hereto hereby irrevocably
submit to the exclusive jurisdiction of such courts for the purpose of any such
action or proceeding.
3. Any provision of this letter agreement may be amended or waived, if
such amendment or waiver is in writing and signed by each of the parties hereto.
No failure or delay by any party in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power, or privilege. The rights and remedies provided for
herein shall be cumulative and not exclusive of any rights or remedies provided
by law.
4. All notices, requests, consents, and other communications hereunder
shall be provided to the addresses set forth herein.
Please indicate your agreement with the foregoing by executing and
returning to the undersigned a copy of this letter agreement.
Sincerely,
--------------------------------------------------------------------------------
ACCEPTED AND AGREED:
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: --------------------------------
ORTHOSTRATEGIES, INC. KANDERS & COMPANY, INC.
By: By:
--------------------------------- -----------------------------
Name: Name:
Title: Title:
Address:
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇
ORTHOSTRATEGIES ACQUISITION CORP.
By:
---------------------------------
Name:
Title:
Address:
--------------------------------------------------------------------------------
-3-
