EXHIBIT 10.4
▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
April 18, 2000
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
VHx Company
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to (i) the Asset Purchase Agreement, dated as of
March 20, 2000 (the "Asset Purchase Agreement"), among ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a
Delaware corporation (the "Purchaser"), ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware
corporation and a wholly-owned subsidiary of the Purchaser ("Hecom"), and VHx
Company, a Nevada corporation (the "Seller"), (ii) Amendment No. 1 to Asset
Purchase Agreement, dated as of April 18, 2000 (the "Amendment"), among the
Purchaser, Hecom, and the Seller, and (iii) the Escrow Agreement, dated as of
April 18, 2000 (the "Escrow Agreement"), among the Purchaser, Hecom, the Seller,
and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, as escrow agent. All capitalized terms used,
but not otherwise defined, herein shall have the respective definitions assigned
thereto in the Asset Purchase Agreement.
The parties acknowledge that, in connection with the efforts of the
Seller pursuant to satisfy its obligations to ▇▇▇▇ Deere Health, Inc. ("Deere")
or otherwise convert such obligations into capital stock of the Seller, the 30
day period referenced in Section 4.06(b) of the Asset Purchase Agreement may be
insufficient to permit the Seller to satisfy or convert such obligations.
Accordingly, the parties hereto hereby agree that Seller shall have up to180
days to satisfy or convert such obligations, provided, however, the Purchaser
and Hecom, in their reasonable discretion, shall be entitled, on ten days notice
to Seller, to shorten such period to an earlier date (not earlier than 30 days
following the Closing) in the event that Purchaser believes that the existence
of such obligations has or is likely to have an adverse effect on the ability of
the Purchaser or Hecom to structure, or participate in, future corporate
finance, business, acquisition, merger, or commercial transactions, or otherwise
causes Purchaser or Hecom to obtain terms other than commercially reasonable
terms in connection with any such transaction. In such event, the parties hereto
hereby agree that (i) the Purchaser and Hecom shall be entitled to withdraw from
the Escrow the number of shares of Purchaser Common Stock (determined in
accordance with Section 4.06(b) of the Asset Purchase Agreement) required to
satisfy such obligations, (ii) notwithstanding anything in the Escrow Agreement
to the contrary, the presentation of this letter to the Escrow Agent shall
constitute the irrevocable instruction and consent of the Seller to the Escrow
Agent to permit the Purchaser and Hecom to withdraw such shares of Purchaser
Common Stock from time to time in order to satisfy such obligations, and (iii)
shall constitute an irrevocable waiver by Seller of its right to deliver an
Objection Notice, as defined in Section 1.03 of the Escrow Agreement, in
connection with such obligations as may arise pursuant to Section 4.06(b) of the
Asset Purchase Agreement and the satisfaction or conversion thereof.
Very truly yours,
▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:______________________________________
▇▇ ▇. ▇▇▇▇▇
Chairman of the Board of Directors,
President, and Chief Executive Officer
Please acknowledge your receipt hereof and your agreement herewith by
executing the acknowledgement set forth below.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:_____________________________
Name:
Title:
VHX COMPANY
Dated: April 18, 2000 By:_____________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
April 18, 2000
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
VHx Company
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to the Asset Purchase Agreement, dated as of March
20, 2000 (the "Asset Purchase Agreement"), among ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a Delaware
corporation (the "Purchaser"), ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation
and a wholly-owned subsidiary of the Purchaser ("Hecom"), and VHx Company, a
Nevada corporation (the "Seller"). In connection with the Asset Purchase
Agreement and as a further inducement to the Seller to consummate the
transactions contemplated thereby, and in connection therewith, the undersigned
hereby agree that Hecom shall assume pursuant to Section 4.01(a)(v) of the Asset
Purchase Agreement solely those liabilities set forth in Schedule 4.01(a)(v) to
the Asset Purchase Agreement and that, in the event that such liabilities shall,
in the aggregate be less than $500,000, the amount equal to the difference
between $500,000 and the amount of such assumed liabilities shall be transmitted
within by Hecom to the Seller within 30 days following the date hereof.
Very truly yours,
▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:_____________________________
▇▇ ▇. ▇▇▇▇▇
Chairman of the Board of Directors,
President, and Chief Executive Officer
Please acknowledge your receipt hereof and your agreement herewith by
executing the acknowledgement set forth below.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:_____________________________
Name:
Title:
VHX COMPANY
Dated: April 18, 2000 By:_____________________________
Name:
Title:
VHX COMPANY
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
April 18, 2000
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.▇▇▇ inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to the Asset Purchase Agreement, dated as of March
20, 2000 (the "Asset Purchase Agreement"), among ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a Delaware
corporation (the "Purchaser"), ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation
and a wholly-owned subsidiary of the Purchaser ("Hecom"), and VHx Company, a
Nevada corporation (the "Seller"). All capitalized terms used, but not otherwise
defined, herein shall have the respective definitions assigned thereto in the
Asset Purchase Agreement.
The Seller hereby agrees that, as a further inducement to Purchaser and
Hecom to consummate the transactions contemplated by, and in connection with,
the Asset Purchase Agreement, the shares of Purchaser Common Stock delivered by
Hecom pursuant to Section 4.01(a)(i) of the Asset Purchase Agreement, the shares
of Purchaser Preferred Stock delivered by Hecom pursuant to Section 4.01(a)(ii)
of the Asset Purchase Agreement, and any shares of Purchaser Common Stock issued
upon the conversion of the Purchaser Common Stock shall be subject to the
restrictions on resale described in clause (d) of Section 7.15 of the Asset
Purchase Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
The parties acknowledge that, in connection with the liquidation of the
Seller pursuant to Section 4.04 of the Asset Purchase Agreement, the Seller may
request from time to time that the restrictions on resale referenced in the
immediately preceding paragraph be amended in individual cases, including the
case of the Seller utilizing such securities as collateral for loans,
in order effect such liquidation. The Purchaser and Hecom agree to work
together with the Seller in good faith and, subject to reasonable business
considerations, including without limitation the orderly distribution of the
above-referenced securities in the public markets, market conditions, and the
effect of such distributions on contemplated corporate transactions by the
Purchaser and Hecom, in individual cases to consider the release of such
securities from the restrictions on resale referenced in the immediately
preceding paragraph for resale in compliance with the Securities Act.
Very truly yours,
VHX COMPANY
By:_____________________________
Name:
Title:
Please acknowledge your receipt hereof and your agreement herewith by
executing the acknowledgement set forth below.
▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:_____________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:_____________________________
Name:
Title:
Dated: April 18, 2000
▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
April 18, 2000
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
VHx Company
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to the Asset Purchase Agreement, dated as of March
20, 2000 (the "Asset Purchase Agreement"), among ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a Delaware
corporation (the "Purchaser"), ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation
and a wholly-owned subsidiary of the Purchaser ("Hecom"), and VHx Company, a
Nevada corporation (the "Seller"). In connection with the Asset Purchase
Agreement, the Seller is required to obtain the consent of ▇▇▇▇ Deere Health
Care, Inc. or its affiliates (the "Deere Consent") to the assignment of the
Asset Purchase/Business Agreement, between ▇▇▇▇ Deere Health Care, Inc. and the
Seller, as heretofore amended. Pending the receipt of the Deere Consent, the
closing proceedings and all documents relating thereto shall remain in escrow in
the possession of the Purchaser and shall be released upon the receipt of the
Deere Consent and may be released earlier in the sole discretion of the
Purchaser. In the event that the Deere Consent is not received by April 25,
2000, the transactions contemplated by, and in connection with, the Asset
Purchase Agreement shall, in the sole discretion of the Purchaser, be deemed to
be null and void, all consideration paid by Purchaser or Hecom to Seller prior
thereto shall then be immediately returned by Seller to the Purchaser or Hecom,
as applicable, and the closing proceedings and documents in such escrow shall be
null and void and of no further force or effect.
Very truly yours,
▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:_____________________________
▇▇ ▇. ▇▇▇▇▇
Chairman of the Board of Directors,
President, and Chief Executive Officer
Please acknowledge your receipt hereof and your agreement herewith by
executing the acknowledgement set forth below.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:_____________________________
Name:
Title:
VHX COMPANY
Dated: April 18, 2000 By:_____________________________
Name:
Title: