<PAGE> 1
FORM 10-Q
Securities and Exchange Commission
Washington, D.C. 20549
(MARK ONE)
[ x ] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the Quarterly Period Ended June 30, 1997
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the Transition Period From __________ to __________
Commission file number 1-8801
GRAHAM-FIELD HEALTH PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2578230
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 Rabro Drive East, Hauppauge, New York 11788
(Address of principal executive offices)
(516) 582-5900
(Registrant's telephone number, including area code)
Not applicable
(Former name, former address and former fiscal year, if changed
since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes X No
Applicable Only to Issuers Involved in Bankruptcy
Proceedings During the Preceding Five Years:
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Sections 12, 13, or 15(d) of the
Securities Exchange Act of 1934 subsequent to the distribution of
securities under a plan confirmed by the court. Yes No
Applicable Only to Corporate Issuers:
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Common Stock, $.025 Par Value --- 19,982,694 shares as of August 5, 1997
<PAGE> 2
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
I N D E X
<TABLE>
<CAPTION>
Part I. Financial Information: Page
<S> <C> <C>
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets -
June 30, 1997 (Unaudited) and December 31, 1996
(Audited) 3
Condensed Consolidated Statements of Operations for
the three and six months ended June 30, 1997 and 1996
(Unaudited) 4
Condensed Consolidated Statements of Cash Flows for
the six months ended June 30, 1997 and 1996 (Unaudited) 5-6
Notes to Condensed Consolidated Financial Statements
(Unaudited) 7-12
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 13-18
Part II. Other Information:
Item 1. Legal Proceedings 19
Item 4. Submission of Matters to a Vote of Security Holders 19
Item 6. Exhibits and Reports on Form 8-K 19
</TABLE>
Page 2
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
CONDENSED CONSOLIDATED BALANCE SHEETS
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
<TABLE>
<CAPTION>
June 30, December 31,
ASSETS 1997 1996
------ ---- ----
(unaudited) (audited)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 1,980,000 $ 1,552,000
Accounts receivable - net 63,016,000 43,651,000
Inventories 51,421,000 45,810,000
Other current assets 6,099,000 3,001,000
Recoverable and prepaid income taxes 256,000 256,000
------------- -------------
TOTAL CURRENT ASSETS 122,772,000 94,270,000
PROPERTY, PLANT AND EQUIPMENT - net 12,846,000 10,771,000
EXCESS OF COST OVER NET ASSETS ACQUIRED - net 99,677,000 91,412,000
OTHER ASSETS 5,717,000 5,112,000
DEFERRED TAX ASSET -- 911,000
------------- -------------
TOTAL ASSETS $ 241,012,000 $ 202,476,000
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Note payable to bank $ 49,150,000 $ 13,985,000
Current maturities of long-term debt 2,550,000 2,016,000
Accounts payable 22,010,000 20,781,000
Acceptances payable 3,500,000 19,800,000
Accrued expenses 20,833,000 25,283,000
------------- -------------
TOTAL CURRENT LIABILITIES 98,043,000 81,865,000
LONG-TERM DEBT 11,065,000 6,057,000
OTHER LONG-TERM LIABILITIES 1,522,000 1,752,000
------------- -------------
TOTAL LIABILITIES 110,630,000 89,674,000
STOCKHOLDERS' EQUITY:
Series A preferred stock -- --
Series B preferred stock 28,200,000 28,200,000
Series C preferred stock 3,400,000 3,400,000
Common stock 496,000 467,000
Additional paid-in capital 114,881,000 101,569,000
(Deficit) (16,500,000) (20,667,000)
Cumulative translation adjustment 60,000 (12,000)
------------- -------------
Subtotal 130,537,000 112,957,000
Notes receivable from sale of shares (155,000) (155,000)
------------- -------------
TOTAL STOCKHOLDERS' EQUITY 130,382,000 112,802,000
COMMITMENTS AND CONTINGENCIES -- --
TOTAL LIABILITIES AND STOCKHOLDERS'
EQUITY $ 241,012,000 $ 202,476,000
============= =============
</TABLE>
See notes to condensed consolidated financial statements.
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CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30 June 30
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
REVENUES:
Medical equipment and supplies $57,592,000 $ 29,582,000 $108,796,000 $56,511,000
Interest and other income 236,000 46,000 364,000 465,000
----------- ------------ ------------ -----------
57,828,000 29,628,000 109,160,000 56,976,000
COST AND EXPENSES:
Cost of revenues 38,722,000 19,881,000 73,379,000 38,383,000
Selling, general and administrative 13,720,000 7,614,000 25,869,000 14,943,000
Interest expense 1,147,000 652,000 2,119,000 1,241,000
----------- ------------ ------------ -----------
53,589,000 28,147,000 101,367,000 54,567,000
INCOME BEFORE INCOME TAXES 4,239,000 1,481,000 7,793,000 2,409,000
INCOME TAXES 1,623,000 666,000 3,093,000 1,084,000
----------- ------------ ------------ -----------
NET INCOME 2,616,000 815,000 4,700,000 1,325,000
PREFERRED STOCK DIVIDENDS 267,000 -- 533,000 --
----------- ------------ ------------ -----------
NET INCOME AVAILABLE TO
COMMON STOCKHOLDERS $ 2,349,000 $ 815,000 $ 4,167,000 $ 1,325,000
=========== ============ ============ ===========
PER SHARE DATA (NOTE 2):
NET INCOME PER SHARE $ .11 $ .06 $ .19 $ .09
=========== ============ ============ ===========
WEIGHTED AVERAGE
NUMBER OF COMMON
AND COMMON
EQUIVALENT SHARES
OUTSTANDING 24,734,000 14,547,000 24,344,000 14,364,000
=========== ============ ============ ===========
</TABLE>
See notes to condensed consolidated financial statements.
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CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30
1997 1996
---- ----
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 4,700,000 $ 1,325,000
Adjustments to reconcile net
income to net cash (used in) provided by
operating activities:
Depreciation and amortization 2,636,000 1,602,000
Provision for losses on accounts receivable 402,000 274,000
Deferred income taxes 911,000 1,084,000
Gain on sale of product line -- (360,000)
Changes in operating assets and
liabilities:
Accounts receivable (14,832,000) (5,303,000)
Inventories, other current assets and
recoverable and prepaid income taxes (4,984,000) (2,072,000)
Accounts and acceptances payable and
accrued expenses (6,832,000) 5,584,000
------------ -----------
NET CASH (USED IN) PROVIDED BY
OPERATING ACTIVITIES (17,999,000) 2,134,000
------------ -----------
INVESTING ACTIVITIES
Purchases of property, plant and equipment (1,611,000) (406,000)
Acquisitions, net of cash acquired (1,003,000) --
Notes receivable from officers -- (94,000)
Increase in excess of cost over net assets acquired (559,000) --
Initial payment in connection with acquisition -- (500,000)
Proceeds from sale of product line -- 500,000
Proceeds from sale of assets under leveraged lease -- 487,000
Net increase in other assets (802,000) (115,000)
------------ -----------
NET CASH USED IN INVESTING
ACTIVITIES $ (3,975,000) $ (128,000)
------------ -----------
</TABLE>
See notes to condensed consolidated financial statements.
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CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS--Continued
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30
1997 1996
---- ----
<S> <C> <C>
FINANCING ACTIVITIES
Proceeds from notes payable and long-term debt $ 118,747,000 $ 1,500,000
Payments on notes payable and long-term debt (80,636,000) (3,755,000)
Payments on acceptances payable, net (16,300,000) --
Proceeds on exercise of stock options 591,000 432,000
------------- -----------
NET CASH PROVIDED BY (USED IN) 22,402,000 (1,823,000)
------------- -----------
FINANCING ACTIVITIES
INCREASE IN CASH AND CASH EQUIVALENTS 428,000 183,000
CASH AND CASH EQUIVALENTS AT
BEGINNING OF PERIOD 1,552,000 214,000
------------- -----------
CASH AND CASH EQUIVALENTS AT
END OF PERIOD $ 1,980,000 $ 397,000
============= ===========
</TABLE>
See notes to condensed consolidated financial statements.
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NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
(Unaudited)
1. GENERAL
In the opinion of the Company, the accompanying unaudited condensed
consolidated financial statements contain all adjustments (consisting only of
normal recurring adjustments) necessary to present fairly the financial position
as of June 30, 1997 (unaudited), the results of operations for the three and six
months ended June 30, 1997 and 1996 (unaudited) and the statements of cash flows
for the six months ended June 30, 1997 and 1996 (unaudited).
Additionally, it should be noted that the accompanying financial
statements and notes thereto do not purport to be complete disclosures in
conformity with generally accepted accounting principles. While the Company
believes that the disclosures presented are adequate to make the information
contained herein not misleading, it is suggested that these financial statements
be read in conjunction with the financial statements and the notes included in
the Company's Annual Report on Form 10-K for the year ended December 31, 1996.
Inventories at June 30, 1997 have been valued at average cost based on
perpetual records or the gross profit method.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, "Earnings Per Share", which is required to be adopted on
December 31, 1997. At that time, the Company will be required to change the
method currently used to compute earnings per share and to restate all prior
periods. Under the new requirements for calculating primary earnings per share,
the dilutive effect of stock options will be excluded. The impact is expected to
result in an increase in primary earnings per share for the quarter and six
month period ended June 30, 1997 of $.01 and $.03 per share, respectively. The
impact of Statement 128 on the calculation of primary earnings per share for the
quarter and six month period ended June 30, 1996 and the calculation of fully
diluted earnings per share for all periods is not expected to be material.
The results of operations for the three and six months ended June 30,
1997 and 1996 are not necessarily indicative of results for the full year.
Certain amounts in the 1996 financial statements have been reclassified
to conform to the 1997 presentation.
2. NET INCOME PER SHARE
Net income per common share for 1997 and 1996 was computed using the
weighted average number of common shares and dilutive common equivalent shares
outstanding during the period. For the 1997 period, net income per common share
was calculated assuming the conversion of the Company's Series B Cumulative
Convertible Preferred Stock (the "Series B Preferred Stock") and the Series C
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<PAGE> 8
Cumulative Convertible Preferred Stock (the "Series C Preferred Stock") into an
aggregate of 4,435,484 common shares and the elimination of a dividend of 1.5%
on the Series B and Series C Preferred Stock in the aggregate amount of $266,250
and $532,500, respectively for the three and six month periods ended June 30,
1997.
3. INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
---- ----
<S> <C> <C> <C>
Raw materials $ 12,585,000 $ 8,423,000
Work-in-process 4,420,000 4,430,000
Finished goods 34,416,000 32,957,000
------------- -----------
$ 51,421,000 $45,810,000
============= ===========
</TABLE>
4. INCOME TAXES
As of June 30, 1997, the Company has recorded net deferred tax assets
primarily comprised of net operating loss carryforwards acquired in connection
with the Everest & Jennings acquisition, which expire at various dates from 2008
to 2010. For financial reporting purposes, due to losses of Everest & Jennings
incurred prior to the Company's acquisition and SRLY limitations, a full
valuation allowance has been recognized in connection with the net operating
loss carryforwards of Everest & Jennings to offset the net deferred tax asset.
If realized, the tax benefit for such items will be recorded as a reduction to
the excess of cost over net assets acquired.
The effective tax rate for the quarter ended June 30, 1997 is lower
than the rate for the quarter ended March 31, 1997 primarily due to the
percentage of income earned by foreign entities which are taxed at lower rates.
Deferred taxes have not been provided on the undistributed earnings of the
foreign entities since it is management's intention to invest such earnings in
the entities indefinitely.
5. ACQUISITION OF BUSINESS
On June 25, 1997, the Company acquired all of the capital stock of
LaBac Systems, Inc., a Colorado corporation ("LaBac"), in a merger transaction
pursuant to an Agreement and Plan of Merger dated June 25, 1997 (the "Merger
Agreement"), by and among the Company, LaBac Acquisition Corp., a wholly-owned
subsidiary of the Company ("GFI Sub"), LaBac, Gregory A. Peek and Michael L.
Peek (collectively, the "Selling Stockholders"). LaBac, a privately-owned
Company, manufactures and distributes custom power wheelchair seating systems
and manual wheelchairs throughout North America. In connection with the
acquisition, LaBac became a wholly-owned subsidiary of the Company, and the
Selling Stockholders of LaBac received in the aggregate 772,557 shares (the "GFI
Shares") of common stock of the Company valued at $11.77 per share in exchange
for all of the issued and outstanding shares of the capital stock of LaBac. In
addition, 77,255 of the GFI Shares were placed in escrow for a period of one (1)
year following the Effective Date of the Merger for payment of indemnity claims
to the
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NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS --Continued
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
(Unaudited)
Company or purchase price adjustments in favor of the Company. The Company also
entered into a three (3) year consulting agreement with the Selling Stockholders
and an entity controlled by the Selling Stockholders, and non-competition
agreements with each of the Selling Stockholders. The acquisition was accounted
for as a purchase and accordingly, assets and liabilities were recorded at fair
value at the date of acquisition and the results of operations are included
subsequent to that date. The excess of cost over net assets acquired amounted to
approximately $6.3 million.
On March 7, 1997, Everest & Jennings, a wholly owned subsidiary of the
Company, acquired Kuschall of America, Inc. ("Kuschall"), a manufacturer of
pediatric wheelchairs, high-performance adult wheelchairs and other
rehabilitation products, for a purchase price of $1.51 million, representing the
net book value of Kuschall. The purchase price was paid by the issuance of
116,154 shares of the common stock of the Company valued at $13.00 per share, of
which 23,230 shares were delivered into escrow. The escrow shares will be
released on March 7, 1999, subject to any purchase price adjustments in favor of
the Company and claims for indemnification. The acquisition was accounted for as
a purchase and accordingly, assets and liabilities were recorded at fair value
at the date of acquisition and the results of operations are included subsequent
to that date.
On February 28, 1997, Everest & Jennings Canada, a wholly owned
subsidiary of the Company, acquired substantially all of the assets and certain
liabilities of Motion 2000 Inc. and its wholly-owned subsidiary, Motion 2000
Quebec Inc., for a purchase price equal to Cdn. $2.9 million (Canadian Dollars)
(approximately $2.15 million). The purchase price was paid by the issuance of
187,733 shares of the common stock of the Company valued at $11.437 per share,
of which 28,095 shares were delivered into escrow. All of the escrowed shares
were held in escrow until June 28, 1997, at which time 9,366 shares were
available to be released. The balance of the escrowed shares will be released on
December 31, 1997, subject to any claims for indemnification. The acquisition
was accounted for as a purchase and accordingly, assets and liabilities were
recorded at fair value at the date of acquisition and the results of operations
are included subsequent to that date. The excess of cost over the net assets
acquired amounted to approximately $1.9 million.
On November 27, 1996, the Company acquired Everest & Jennings, pursuant
to the terms and provisions of the Amended and Restated Agreement and Plan of
Merger dated as of September 3, 1996 and amended as of October 1, 1996 (the
"Merger Agreement"), by and among the Company, Everest & Jennings, Everest &
Jennings Acquisition Corp., a wholly-owned subsidiary of the Company and BIL
(Far East Holdings) Limited ("BIL"), a Hong Kong corporation and the majority
stockholder of Everest & Jennings. The acquisition of Everest & Jennings has
been accounted for under the purchase method of accounting and, accordingly, the
operating results of Everest & Jennings have been included in the Company's
consolidated financial statements since the date of acquisition. The excess of
the aggregate purchase price over the estimated fair market value of the net
assets acquired is approximately $62.7 million, as adjusted.
On September 4, 1996, the Company acquired substantially all of the
assets of V.C. Medical Distributors Inc. ("V.C. Medical"), a wholesale
distributor of medical products in Puerto Rico, for a
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NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS --Continued
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
(Unaudited)
purchase price consisting of $1,703,829 in cash, and the issuance of 32,787
shares of common stock of the Company, valued at $7.625 per share representing
the closing market price of the common stock of the Company on the last trading
day immediately prior to the closing. In addition, the Company assumed certain
liabilities of V.C. Medical in the amount of $296,721. Under the terms of the
transaction, in the event the pre-tax income of the acquired business equals or
exceeds $1,000,000 during the twelve (12) months following the closing date, an
additional $500,000 will be paid to V.C. Medical. The shares were delivered into
escrow, and will be held in escrow until February 4, 1998, subject to any claims
for indemnification in favor of the Company. The acquisition was accounted for
as a purchase and accordingly, assets and liabilities were recorded at fair
value at the date of acquisition and the results of operations are included
subsequent to that date. The excess of cost over the net assets acquired
amounted to approximately $988,000.
The following summary presents unaudited pro forma consolidated results
of operations for the six months ended June 30, 1997 and 1996 as if the
acquisitions described above occurred at the beginning of each of 1997 and 1996.
This information gives effect to the adjustment of interest expense, income tax
provisions, and to the assumed amortization of fair value adjustments, including
the excess of cost over net assets acquired. The 1996 pro forma information does
not include the write-off of certain purchased in-process research and
development costs of $12,800,000, merger related expenses of $3,000,000
associated with the acquisition of Everest & Jennings on November 27, 1996, and
an extraordinary item relating to the early retirement of the indebtedness under
the John Hancock Note and Warrant Agreement, as amended. The pro forma net loss
per common share for 1996 has been calculated by assuming the payment of a
dividend of 1.5% on both the Series B Preferred Stock and Series C Preferred
Stock in the aggregate amount of $532,500 for the six months ended June 30,
1997. Conversion of the preferred stock was not assumed since the result would
have been antidilutive.
<TABLE>
<CAPTION>
Pro forma
Six Months Ended Six Months Ended
June 30, 1997 June 30, 1996
------------- -------------
<S> <C> <C>
Net Revenues $117,107,000 $ 102,985,000
============ =============
Income (Loss) Before Income Taxes $ 8,320,000 $ (44,000)
Income Taxes 3,328,000 622,000
------------ -------------
Net Income (Loss) $ 4,992,000 $ (666,000)
============ =============
Net Income (Loss) per Share $ .20 $ (.06)
============ =============
Weighted Average Number of Common and
Dilutive Common Equivalent Shares Outstanding 25,199,000 19,918,000
============ =============
</TABLE>
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NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS --Continued
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
(Unaudited)
6. OTHER MATTERS
On August 4, 1997, the Company issued $100 million of its 9.75% Senior
Subordinated Notes due 2007 (the "Notes") under Rule 144A of the Securities Act
of 1933, as amended. The Notes are general unsecured obligations of the Company,
subordinated in right of payment to all existing and future senior debt of the
Company, including indebtedness under the IBJ Schroder Revolving Credit Facility
(the "Credit Facility"). The Notes are guaranteed (the "Subsidiary Guarantees"),
jointly and severally, on a senior subordinated basis by all existing and future
restricted subsidiaries of the Company, other than foreign subsidiaries (the
"Guaranteeing Subsidiaries"). The Subsidiary Guarantees are subordinated in
right of payment to all existing and future senior debt of the Guaranteeing
Subsidiaries including any guarantees by the Guaranteeing Subsidiaries of the
Company's obligations under the Credit Facility.
The net proceeds from the offering of the Notes were used to repay
$52.6 million of indebtedness under the Credit Facility. In addition, the
Company intends to use the proceeds from the offering of the Notes to repay $5
million of indebtedness due to BIL. The balance of the proceeds will be used for
general corporate purposes, including the funding for acquisitions, the opening
of additional Graham-Field Express facilities and strategic alliances.
Under the terms of the indenture governing the Notes (the "Indenture"),
the Notes are not redeemable at the Company's option prior to August 15, 2002.
Thereafter, the Notes are redeemable, in whole or in part, at the option of the
Company, at certain redemption prices plus accrued and unpaid interest to the
date of redemption. In addition, prior to August 15, 2000, the Company may, at
its option, redeem up to 25% of the aggregate principal amount of Notes
originally issued with the net proceeds from one or more public offerings of
common stock of the Company at redemption price of 109.75% of the principal
amount, plus accrued and unpaid interest to the date of redemption; provided
that at least 75% of the aggregate principal amount of Notes originally issued
would remain outstanding after giving effect to any such redemption.
The Indenture contains covenants including, but not limited to,
covenants relating to limitations on the incurrence of additional indebtedness,
the creation of liens, restricted payments, the sales of assets, mergers and
consolidations, payment restrictions affecting subsidiaries, and transactions
with affiliates. In addition, in the event of a change of control of the Company
as defined in the Indenture, each holder of the Notes will have the right to
require the Company to repurchase such holder's Notes, in whole or in part, at a
purchase price of 101% of the principal amount thereof plus accrued and unpaid
interest to the date of repurchase.
The Company and the Guaranteeing Subsidiaries have agreed, pursuant to
a registration rights agreement (the "Registration Rights Agreement") with the
initial purchaser of the Notes, to file with the Securities and Exchange
Commission a registration statement (the "Exchange Offer Registration
Statement") registering an issue of notes identical in all material respects to
the Notes (the "Exchange Notes") and to offer to the holders of the Notes the
opportunity to exchange their Notes for Exchange Notes (the "Exchange Offer").
If the Company is not permitted to file the Exchange Offer Registration
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<PAGE> 12
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS --Continued
GRAHAM-FIELD HEALTH PRODUCTS, INC. AND SUBSIDIARIES
(Unaudited)
Statement or if certain holders of the Notes are not permitted to participate
in, or would not receive freely tradeable Exchange Notes pursuant to, the
Exchange Offer, the Company has agreed to file a shelf registration statement
(the "Shelf Registration Statement") with respect to resales of the Notes. The
Notes are subject to the payment of liquidated damages under certain
circumstances if the Company and the Guaranteeing Subsidiaries are not in
compliance with their obligations under the Registration Rights Agreement.
7. LEGAL PROCEEDINGS
The Company and its subsidiaries are parties to other lawsuits and
other proceedings arising out of the conduct of its ordinary course of business,
including those relating to product liability and the sale and distribution of
its products. While the results of such lawsuits and other proceedings cannot be
predicted with certainty, management does not expect that the ultimate
liabilities, if any, will have a material adverse effect on the consolidated
financial position or results of operations of the Company.
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<PAGE> 13
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Forward-Looking Statement
This report on Form 10-Q contains forward-looking statements as defined
by the Private Securities Litigation Reform Act of 1995. Forward-looking
statements include plans and objectives of management for future operations,
including plans and objectives relating to the future economic performance and
financial results of the Company. The forward-looking statements relate to (i)
the expansion of the Company's market share, (ii) the Company's growth into new
markets, (iii) the development of new products and product lines to appeal to
the needs of the Company's customers, (iv) the opening of new distribution and
warehouse facilities, including the expansion of the Graham-Field Express
program, (v) obtaining regulatory and governmental approvals, (vi) the upgrading
of the Company's technological resources and systems and (vii) the retention of
the Company's earnings for use in the operation and expansion of the Company's
business.
Important factors and risks that could cause actual results to differ
materially from those referred to in the forward-looking statements include, but
are not limited to, the effect of economic and market conditions, the impact of
the consolidation of healthcare practitioners, the impact of healthcare reform,
opportunities for acquisitions and the Company's ability to effectively
integrate acquired companies, the termination of the Company's exclusive
homecare bed supply agreement, the termination of the Company's exclusive
wheelchair supply agreement, the ability of the Company to maintain its gross
profit margins, the ability to obtain additional financing to expand the
Company's business, the failure of the Company to successfully compete with the
Company's competitors that have greater financial resources, the loss of key
management personnel or the inability of the Company to attract and retain
qualified personnel, adverse litigation results, the acceptance and quality of
new software and hardware products which will enable the Company to expand its
business, the acceptance and ability to manage the Company's operations in
foreign markets, possible disruptions in the Company's computer systems or
distribution technology 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 the Company's
filings with the Securities and Exchange Commission, which include this report
on Form 10-Q, the Company's annual report on Form 10-K for the year ended
December 31, 1996, and the section entitled "Risk Factors" in the Company's
Registration Statement on Form S-4 dated as of October 18, 1996.
The forward-looking statements are based on current expectations and
involve a number of known and unknown risks and uncertainties that could cause
the actual results, performance and/or achievements of the Company to differ
materially from any future results, performance or achievements, express or
implied, by the forward-looking statements. Readers are cautioned not to place
undue reliance on these forward-looking statements, and that in light of the
significant uncertainties inherent in forward-looking statements, the inclusion
of such statements should not be regarded as a representation by the Company or
any other person that the objectives or plans of the Company will be achieved.
Operating Revenues
Operating revenues for the quarter and six month period ended June 30,
1997 were $57,592,000 and $108,796,000, respectively, representing an increase
of 95% and 93%, respectively, from the same
- 13 -
<PAGE> 14
periods in the prior year. Revenues for the quarter and six month period ended
June 30, 1997 included revenues of Everest & Jennings of approximately $15.8
million and $27.6 million, respectively. Operating revenues for the quarter and
six month period, without revenues of Everest & Jennings, increased by 41% and
44%, respectively from the same periods in the prior year. The increase in
operating revenues, excluding the revenues attributable to Everest & Jennings,
was primarily attributable to the continued roll-out of the Company's innovative
"Graham-Field Express" program, the expansion of the Company's Consolidation
Advantage Program ("CAP"), and the roll-out of the Company's seamless
distribution program.
In March 1996, the Company introduced its Graham-Field Express Program
which offers "same-day" and "next-day" service to home healthcare dealers of
certain strategic home healthcare products, including Temco patient aids, adult
incontinence products, Everest & Jennings wheelchairs, Smith & Davis homecare
beds, nutritional supplements and other freight and time sensitive products.
Revenues attributable to Graham-Field Express were approximately $14,582,000 and
$4,602,000 for the six months ended June 30, 1997 and 1996, respectively. On
September 4, 1996, the Company acquired V.C. Medical Distributors, Inc. ("V.C.
Medical"), a regional home healthcare wholesaler located in Puerto Rico. V.C.
Medical currently operates as Graham-Field Express (Puerto Rico). Revenues
attributable to Graham-Field Express (Puerto Rico) were approximately $3,728,000
for the six months ended June 30, 1997. On January 29, 1997, the Company
acquired Bobeck Medical Distributors ("Bobeck Medical"), a wholesale distributor
of medical products. Bobeck Medical currently operates as Graham-Field Express
(Dallas). Revenues attributable to Graham-Field Express (Dallas) were
approximately $1,393,000 for the six months ended June 30, 1997.
The Company opened additional Graham-Field Express locations in
Baltimore, Maryland and Cleveland, Ohio in April 1997 and July 1997,
respectively. The Company is actively pursuing additional sites for its
Graham-Field Express Program, which will serve all of the major U.S. markets.
Interest and Other Income
Interest and other income for the three months ended June 30, 1997 was
$236,000, as compared to $46,000 for the same period in the prior year. The
increase is primarily due to the gain on a sale of real property in the second
quarter of 1997.
Interest and other income for the six months ended June 30, 1997 was
$364,000, as compared to $465,000 for the same period in the prior year. The
decrease is primarily attributable to the gain of $360,000 recorded in 1996 from
the sale of the Company's Gentle Expressions(R) breast pump product line
partially offset by the gain on a sale of real property in the second quarter of
1997.
Cost of Revenues
Cost of revenues as a percentage of operating revenues remained
unchanged at 67.2% for the three months ended June 30, 1997, as compared to the
same period in the prior year.
Cost of revenues as a percentage of operating revenues decreased to
67.4% for the six months ended June 30, 1997, as compared to 67.9% for the same
period in the prior year. The decrease is
- 14 -
<PAGE> 15
primarily attributable to the improved operational efficiencies associated with
the manufacture and distribution of the Company's product lines and improved
purchasing activities.
Selling, General and Administrative Expenses
Selling, general and administrative expenses as a percentage of
operating revenues for the three and six month periods ended June 30, 1997 was
24%, as compared to 26% in the same periods in the prior year. The decrease is
attributable to a number of factors, including the expansion of the Graham-Field
Express program in 1997, which contributes revenue with a lower percentage of
selling, general and administrative expenses, as well as continued efficiencies
generated by the Company's distribution network.
Interest Expense
Interest expense for the three months ended June 30, 1997 increased to
$1,147,000, as compared to $652,000 for the same period in the prior year.
Interest expense for the six months ended June 30, 1997 increased to $2,119,000
as compared to $1,241,000 for the same period in the prior year. The increase is
primarily due to increased borrowings attributable to the Company's growth and
"roll-out" of the Graham-Field Express program.
Net Income
Income before income taxes for the three months ended June 30, 1997 was
$4,239,000, as compared to $1,481,000 for the same period in the prior year, an
increase of $2,758,000 or 186%.
Income before income taxes for the six months ended June 30, 1997 was
$7,793,000, as compared to $2,409,000 for the same period in the prior year, an
increase of $5,384,000, or 223%. The increase is primarily due to the increase
in revenues, the increase in the gross profit margin, and the decrease in
selling, general and administrative expenses as a percentage of operating
revenue.
Net income for the six months ended June 30, 1997 was $2,616,000, as
compared to $815,000 for the same period last year, an increase of $1,801,000 or
221%.
Net income for the six months ended June 30, 1997 was $4,700,000, as
compared to $1,325,000 for the same period last year, an increase of $3,375,000
or 255%. The Company recorded income tax expense of $3,093,000 for the six
months ended June 30, 1997, as compared to $1,084,000 for the same period last
year. The effective tax rate for the six months ended June 30, 1997 was 40% as
compared to 45% for the same period last year. The decrease is primarily
attributable to the percentage of income earned by foreign entities which are
taxed at a lower rate and the relative decrease in permanent differences in
relation to pre-tax income. Deferred taxes have not been provided on the
undistributed earnings of the foreign entities as it is management's intention
to invest such earnings in the entities indefinitely. As of June 30, 1997, the
Company had net deferred tax assets primarily comprised of net operating loss
carryforwards acquired in connection with an acquisition. A full valuation
allowance has been recognized to offset the net deferred asset related to the
acquired tax attributes. If realized, the tax benefit for those items will be
recorded as a reduction of goodwill.
The Company's business has not been materially affected by inflation.
- 15 -
<PAGE> 16
Liquidity and Capital Resources
The Company had working capital of $24,729,000 at June 30, 1997, as
compared to $12,405,000 at December 31, 1996. The increase in working capital is
primarily attributable to the cash provided by the Company's net income of
$4,700,000, which reflects $2,636,000 of depreciation and amortization expense
and the net current assets acquired in connection with the Company's
acquisitions during the six months ended June 30, 1997.
Cash used in operations for the six months ended June 30, 1997 was
$17,999,000, as compared to cash provided by operations of $2,134,000 in the
same period in the prior year. The principal reasons for the decrease in cash
provided by operations were increases in accounts receivable and inventory
levels related to increased revenues and the reduction in accrued expenses,
partially offset by net income of $4,700,000 and depreciation and amortization
expense of $2,636,000 for the period.
The Company anticipates that its cash flow from operations, together
with its current cash balance, and the proceeds from its Credit Facility and
Notes (as defined below) will be sufficient to meet its working capital
requirements.
Financing
On August 4, 1997, the Company issued $100 million of its 9.75% Senior
Subordinated Notes due 2007 (the "Notes") under Rule 144A of the Securities Act
of 1933, as amended. The Notes are general unsecured obligations of the Company,
subordinated in right of payment to all existing and future senior debt of the
Company, including indebtedness under the IBJ Schroder Revolving Credit Facility
(the "Credit Facility"). The Notes are guaranteed (the "Subsidiary Guarantees"),
jointly and severally, on a senior subordinated basis by all existing and future
restricted subsidiaries of the Company, other than foreign subsidiaries (the
"Guaranteeing Subsidiaries"). The Subsidiary Guarantees are subordinated in
right of payment to all existing and future senior debt of the Guaranteeing
Subsidiaries including any guarantees by the Guaranteeing Subsidiaries of the
Company's obligations under the Credit Facility.
The net proceeds from the offering of the Notes were used to repay
$52.6 of indebtedness under the Credit Facility. In addition, the Company
intends to use the proceeds from the offering of the Notes to repay $5 million
of indebtedness due to an affiliate of BIL (Far East Holdings) Limited ("BIL").
The balance of the proceeds will be used for general corporate purposes,
including the funding for acquisitions, the opening of additional Graham-Field
Express facilities and strategic alliances.
Under the terms of the indenture governing the Notes (the "Indenture"),
the Notes are not redeemable at the Company's option prior to August 15, 2002.
Thereafter, the Notes are redeemable, in whole or in part, at the option of the
Company, at a redemption price of 109.75% of the principal amount, plus accrued
and unpaid interest to the date of redemption. In addition, prior to August 15,
2000, the Company may, at its option, redeem up to 25% of the aggregate
principal amount of Notes originally issued with the net proceeds from one or
more public offerings of common stock of the Company at certain redemption
prices plus accrued and unpaid interest to the date of redemption; provided that
at least 75% of the aggregate principal amount of Notes originally issued would
remain outstanding after giving effect to any such redemption.
The Indenture contains covenants including, but not limited to,
covenants relating to limitations on the incurrence of additional indebtedness,
the creation of liens, restricted payments, the sales of assets, mergers and
consolidations, payment restrictions affecting subsidiaries, and transactions
with affiliates.
- 16 -
<PAGE> 17
In addition, in the event of a change of control of the Company as defined in
the Indenture, each holder of the Notes will have the right to require the
Company to repurchase such holder's Notes, in whole or in part, at a purchase
price of 101% of the principal amount thereof plus accrued and unpaid interest
to the date of repurchase.
The Company and the Guaranteeing Subsidiaries have agreed, pursuant to
a registration rights agreement (the "Registration Rights Agreement") with the
initial purchaser of the Notes, to file with the Securities and Exchange
Commission a registration statement (the "Exchange Offer Registration
Statement") registering an issue of notes identical in all material respects to
the Notes (the "Exchange Notes") and to offer to the holders of the Notes the
opportunity to exchange their Notes for Exchange Notes (the "Exchange Offer").
If the Company is not permitted to file the Exchange Offer Registration
Statement or if certain holders of the Notes are not permitted to participate
in, or would not receive freely tradeable Exchange Notes pursuant to, the
Exchange Offer, the Company has agreed to file a shelf registration statement
(the "Shelf Registration Statement") with respect to resales of the Notes. The
Notes are subject to the payment of liquidated damages under certain
circumstances if the Company and the Guaranteeing Subsidiaries are not in
compliance with their obligations under the Registration Rights Agreement.
On December 10, 1996, the Company entered into a Credit Facility for up
to $55 million of borrowings, including letters of credit and banker's
acceptances, arranged by IBJ Schroder Bank & Trust Company ("IBJ"), as agent.
The proceeds from the Credit Facility were used to (i) refinance certain
existing indebtedness of the Company, including the indebtedness (a) under the
John Hancock Note and Warrant Agreement, as amended and (b) to The Chase
Manhattan Bank and (ii) to provide for working capital needs of the Company.
Under the terms of the Credit Facility, borrowings bear interest, at the option
of the Company at the bank's prime rate (8.5% at June 30, 1997) or 2.25% above
LIBOR, or 1.5% above the bank's bankers' acceptance rate. The Credit Facility is
secured by the Company's receivables, inventory and proceeds thereof.
On June 25, 1997, the Company amended the Credit Facility to provide
the Company with a term loan of $2 million (the "IBJ Term Loan"), which was
subsequently repaid on July 9, 1997 through an increase in available borrowings
under the Credit Facility.
On July 9, 1997, the Company entered into an amendment to the Credit
Facility increasing the amount available for borrowings to $75 million. In
connection with the amendment to the Credit Facility, the Company pledged to IBJ
all of the assets of the Company not previously pledged and repaid the IBJ Term
Loan.
The Credit Facility contains certain customary terms and provisions,
including limitations with respect to the incurrence of additional debt, liens,
transactions with affiliates, consolidations, mergers and acquisitions, sales of
assets, dividends and other distributions (other than the payment of dividends
to BIL in accordance with the terms of the Series B and Series C Cumulative
Convertible Preferred Stock. In addition, the Credit Facility contains certain
financial covenants, which become effective as of the end of the fiscal quarter
ending June 30, 1997, including a cash flow coverage and leverage ratio, and an
earnings before interest and taxes covenant. The Company was in compliance with
such covenants at June 30, 1997.
Under the terms of the Credit Facility, the Company is prohibited from
declaring, paying or making any dividend or distribution on any shares of the
common stock or preferred stock of the Company (other than dividends or
distributions payable in its stock, or split-ups or reclassifications of its
- 17 -
<PAGE> 18
stock) or apply any of its funds, property or assets to the purchase, redemption
or other retirement of any common or preferred stock, or of any options to
purchase or acquire any such shares of common or preferred stock of the Company.
Notwithstanding the foregoing restrictions, the Company is permitted to pay cash
dividends in any fiscal year in an amount not to exceed the greater of (i) the
amount of dividends due BIL under the terms of the Series B and Series C
Preferred Stock in any fiscal year, or (ii) 12.5% of the net income of the
Company on a consolidated basis, provided that no event of default shall have
occurred and be continuing or would exist after giving effect to the payment of
the dividends.
On July 18, 1996, an affiliate of BIL provided the Company with a loan
in the amount of $4 million, at an effective interest rate of 8.8%. The loan was
used to fund the acquisition of V.C. Medical and for general corporate purposes.
On December 10, 1996, the loan was converted into the BIL Note, which matures on
April 1, 2001, with interest payable quarterly at an effective rate of 7.7% per
year.
On May 9, 1997, an affiliate of BIL loaned $5 million to the Company at
an interest rate of 8.5% per annum. Under the terms of the loan arrangement,
interest is payable quarterly with principal payable upon the earlier to occur
of the Company's completion of any private or public offering of debt or equity
securities or May 9, 1998. The Company intends to repay this loan with the
proceeds from its offering of Notes completed on August 4, 1997.
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<PAGE> 19
Part II. Other Information
Item 1. Legal Proceedings
The Company and its subsidiaries are parties to other lawsuits and
other proceedings arising out of the conduct of its ordinary course of business,
including those relating to product liability and the sale and distribution of
its products. While the results of such lawsuits and other proceedings cannot be
predicted with certainty, management does not expect that the ultimate
liabilities, if any, will have a material adverse effect on the consolidated
financial position or results of operations of the Company.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
Item 6. Exhibits and Reports on Form 8-K
Exhibits:
Supply Agreement dated as of April 3, 1997, between Maxwell Products, Inc. and
the Company.
Reports on Form 8-K:
1. The Company's Current Report on Form 8-K dated as of March 12, 1997, as
amended by Form 8-K/A dated May 12, 1997 (Date of Event: February 28,
1997).
2. The Company's Current Report on Form 8-K dated as of March 20, 1997, as
amended by Form 8-K/A dated May 19, 1997 (Date of Event: March 7,
1997).
3. The Company's Current Report on Form 8-K dated as of May 14, 1997 (Date
of Event: May 1, 1997).
4. The Company's Current Report on Form 8-K dated as of July 17, 1997
(Date of Event: July 17, 1997).
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<PAGE> 20
S I G N A T U R E S
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GRAHAM-FIELD HEALTH PRODUCTS, INC.
(Registrant)
Date: August 8, 1996 s/Irwin Selinger
---------------------------------------------
Irwin Selinger
Chairman of the Board and
Chief Executive Officer
Date: August 8, 1996 s/Gary M. Jacobs
---------------------------------------------
Gary M. Jacobs
Vice President - Finance
Chief Financial and Accounting Officer
- 20 -
<PAGE> 21
EXHIBIT INDEX
-------------
Exhibit 99 Supply Agreement dated as of April 3, 1997, between
Maxwell Products, Inc. and the Company.
Exhibit 27 Financial Data Schedule
<PAGE> 1
SUPPLY AGREEMENT
DATED AS OF APRIL 3, 1997
BETWEEN
MAXWELL PRODUCTS, INC.
AND
GRAHAM-FIELD HEALTH PRODUCTS, INC.
<PAGE> 2
TABLE OF CONTENTS
SECTION PAGE
------- ----
1. MANUFACTURE AND SUPPLY................................. 1
2. DELIVERY, CLAIMS, DELAYS RETURNS....................... 3
3. PRICES AND PAYMENT..................................... 4
4. TAXES AND OTHER GOVERNMENTAL CHARGES................... 5
5. TERM AND TERMINATION................................... 5
6. PRODUCT WARRANTIES..................................... 6
7. REPRESENTATIONS AND RELATIONSHIP OF THE PARTIES........ 6
8. TOOLING................................................ 7
9. SUBMISSIONS TO REGULATORY AGENCIES..................... 8
10. MANUFACTURER'S OPERATIONS, INSPECTIONS AND REPORTS
CONCERNING FACILITIES.................................. 9
11. INDEMNITY AND INSURANCE................................ 11
12. EVENTS OF CUSTOMER DEFAULT............................. 11
13. EVENTS OF MANUFACTURER DEFAULT......................... 12
14. PATENT INFRINGEMENT.................................... 14
15. FORCE MAJEURE.......................................... 14
16. NONDISCLOSURE OF INFORMATION; NON-COMPETITION.......... 15
17. HEADINGS............................................... 16
18. FAILURE TO ENFORCE..................................... 16
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<PAGE> 3
TABLE OF CONTENTS (CON'T)
SECTION PAGE
------- ----
19. SEVERABILITY............................................ 16
20. ENTIRE AGREEMENT........................................ 17
21. NOTICES................................................. 17
22. CHOICE OF LAW........................................... 18
23. RESOLUTION BY NEGOTIATION; ARBITRATION.................. 18
24. BINDING AGREEMENT....................................... 20
25. COUNTERPARTS............................................ 20
Appendix A - Products and Specifications
Appendix B - Prices
Appendix C - Manufacturer's Standard Costs
Appendix D - Standard Warranty Terms
Appendix E - Tooling
Appendix F - Manufacturer's Product Liability Insurance
Coverages
Appendix G - Customer's Product Liability Insurance
Coverages
Appendix H - Non-Disclosure and Confidentiality Agreement
- ii -
<PAGE> 4
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT deemed is made and entered into as of
April 3, 1997 ("Agreement") by and between Maxwell Products, Inc., a California
corporation ("Manufacturer"), and GRAHAM-FIELD HEALTH PRODUCTS, INC., a Delaware
corporation (which, together with its subsidiaries that it authorizes to order
Products as provided herein, are referred to as "Customer").
RECITALS
Manufacturer has agreed to manufacture and supply to Customer,
utilizing tooling acquired and/or fabricated by Manufacturer for Customer's
account, and Customer has agreed to purchase from Manufacturer, powder-coated
home healthcare beds and replacement parts for home healthcare beds, on the
terms and conditions set forth therein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants of the parties hereinafter expressed, it is hereby agreed as
follows:
1. MANUFACTURE AND SUPPLY.
1.1 Manufacturer shall, subject to the terms and conditions of this
Agreement, manufacture and sell exclusively to Customer certain products
comprising Customer's powder-coated home healthcare bed product line and parts
and accessories related thereto, as described more fully in Appendix "A" hereto
(the "Products"), conforming in all material respects to the specifications
referenced in Appendix "A" hereto, including as applicable Underwriter's
Laboratories ("UL") and United States Food and Drug Administration ("FDA")
requirements and standards, as the same may be revised from time to time by
Customer (the "Specifications"). Customer acknowledges that the Products do not
include mattresses. Manufacturer will bear all costs and expenses related to
manufacturing equipment, inventories of raw materials, supplies, components,
work-in-process and finished Products, and all start-up costs excluding
fabrication and/or acquisition of tooling associated with the lay-out of the
manufacturing plant, in order to meet Customer's requirements for Products
during the term of this Agreement.
1.2 Customer shall purchase from Manufacturer, and Manufacturer shall
sell to Customer, Products in the following quantities:
(i) Customer will purchase from Manufacturer at least 15,000
complete bed products ("Bed Units") during each twelve-month period during the
term of this Agreement, and at least 1,000 Bed Units in each calendar month
during the term hereof;
<PAGE> 5
(ii) Manufacturer will not be obligated to sell to Customer
more than 25,000 Bed Units during any twelve-month period during the term of
this Agreement, or more than 2,500 Bed Units in any calendar month during the
term hereof, unless, in either case, Manufacturer agrees to accept Customer's
orders for a greater quantity; and
(iii) Manufacturer will sell to Customer replacement parts and
accessory Products on an as ordered basis.
(iv) If either (a) Customer fails to order at least 15,000 Bed
Units in any twelve-month period ending on July 31st during the term of this
Agreement, or (b) Manufacturer fails to supply in quantities ordered by Customer
up to 25,000 Bed Units in any twelve-month period ending on July 31 during the
term of this Agreement, Customer shall pay Manufacturer (if Customer fails to so
order at least 15,000 Bed Units in any such twelve-month period), and
Manufacturer shall pay Customer (if Manufacturer fails to supply Customer's
requirements in quantities ordered by Customer up to a total of 25,000 Bed Units
in any such twelve-month period), as liquidated damages, an amount equal to the
product of (i) $40.00 and (ii) either the number of Bed Units not so ordered by
Customer or the number of Bed Units not so supplied by Manufacturer, as the case
may be. Any amount payable under this Section 1.2(iv) shall be paid on or prior
to August 10th following the end of the twelve-month period in which the failure
occurs.
1.3 So long as this Agreement or any successor thereto remains in
effect, on or prior to the last day of each calendar month Customer will have
placed firm orders for Bed Units, parts and accessories it desires to purchase
during the next two (2) calendar months and Customer will provide an estimate
(forecast) of its purchase requirements for Bed Units, parts and accessories for
the three (3) calendar months thereafter, so at all times Manufacturer will have
binding purchase orders covering two months and non-binding forecasts for an
additional three months. Except with the Manufacturer's consent, which shall not
be unreasonably withheld, firm orders for beds for any calendar month will not
differ from the forecast for that month by more than twenty percent (20%).
Customer's firm orders will specify a mix of bed units, parts and accessories
reasonably acceptable to Manufacturer.
1.4 New Products may be added to Appendix A from time to time upon such
terms, including pricing and quantities, as Manufacturer and Customer shall
agree in writing. Customer shall supply Manufacturer with specifications for any
new Products. After a new Product is added to Appendix "A," orders therefor
shall be used to satisfy the minimum purchase requirements for all subsequent
periods. Failure of the parties to agree on any terms for adding new Product to
Appendix A shall not relieve either party from their obligations set forth in
this Agreement or constitute cause for cancellation or termination of this
Agreement.
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<PAGE> 6
1.5 Manufacturer may not unreasonably decline any purchase order for
Products from Customer under and in accordance with the terms of this Agreement
and such purchase order will be deemed accepted unless declined within fifteen
(15) days of receipt.
2. DELIVERY, CLAIMS, DELAYS, RETURNS.
2.1 All Products will be sold F.O.B. Manufacturer's facilities in
Cerritos, California, unless otherwise agreed in writing as to particular
shipments. Customer shall be responsible for all costs of shipping Products.
Partial shipments are allowed under this Agreement, provided that no shipment of
Bed Units (other than a shipment out of warehouse storage) shall be in less than
a truckload quantity without Customer's prior approval unless delaying any
shipment will delay said shipment beyond that specified in the purchase order
relating thereto.
2.2 Shipment of any order for Products shall be in accordance with the
agreed upon schedule for the period in question. Manufacturer will make all
reasonable efforts to accommodate schedule changes when requested by Customer.
2.3 The parties hereby acknowledge that time is of the essence with
respect to the delivery dates specified in individual orders. Customer reserves
the right to cancel, without liability, part or all of any order not shipped
within fifteen (15) days from the period specified in the order (or twenty (20)
days in the case of replacement shipments for previously shipped non-conforming
goods), provided that Customer shall have given Manufacturer written notice, in
accordance with the terms of this Agreement for giving notice, of Customer's
intent to cancel and Manufacturer has not shipped the Products within five (5)
days after the date of such notice; notwithstanding the foregoing, Customer
shall not be obligated to give Manufacturer such opportunity to cure prior to
cancellation more than three (3) times in any three-month period.
2.4 Manufacturer acknowledges that Customer will acquire Products for
resale to Customer's customers and, accordingly, the ultimate purchaser will not
be in a position to inspect the same for any non-conformance, defect, damage or
shortage until delivery thereof to said purchaser; Customer will notify
Manufacturer within fifteen (15) business days following receipt by Customer of
any notice from the ultimate purchaser of any Product of any claim that the
Product does not conform with the Specifications or any defect, damage or
shortage therein, other than any defect, damage and/or shortage arising in
transport after said goods became F.O.B. as provided in Section 2.1 above.
Customer shall immediately (within two (2) business days) notify Manufacturer of
any such non-conformance, defect, damage or shortage observed by Customer. Any
disputes that arise regarding the nature or existence of any non-conformance,
defect, damage or shortage shall be resolved
- 3 -
<PAGE> 7
pursuant to Article 23.
3. PRICES AND PAYMENT.
3.1 The unit prices to be paid for the Products listed on Appendix "A"
hereto ordered pursuant to this Agreement during the twelve months ending July
31, 1998 shall be the prices specified on Appendix "B" hereto. The addition of
new Products to Appendix "A" shall be subject to agreement by Customer and
Manufacturer on appropriate pricing for such new Products, which will be
specified in an addendum to Appendix "B". The unit prices to be paid for
replacement parts and accessories ordered pursuant to this Agreement shall be an
amount determined as specified on Appendix "B" hereto.
3.2 Payment terms for all Products sold hereunder shall be net thirty
(30) days from the later of the date or receipt of invoice. Invoices not paid
within fifteen (15) calendar days of when due shall bear a late charge (prime -
price differential) of one percent (1%) per month from the date due as stated on
such invoices until paid. Manufacturer may fax invoices which will be deemed
received when transmitted to Customer's facility from which the purchase order
relating thereto was issued or such other facility as Customer may designate in
writing.
3.3 All replacement parts and accessories will be shipped to Customer's
facilities as designated from time to time. Manufacturer shall not be required
to "drop ship" such items, or to ship them to locations other than Customer's
facilities designated for such items.
3.4 The unit prices on Appendix B will be reduced by fifty percent
(50%) of any cost savings realized by Manufacturer from changes in design,
motors or other major components that are proposed by either party and accepted
by the other party; provided, however, that any impact that such change would
have on Manufacturer's operating and production procedures shall be taken into
account in determining the amount, if any, of any such cost savings. Effective
as of the first day of each twelve-month period during the term of this
Agreement, commencing August 1, 1998, any net increase in Manufacturer's costs
of raw materials, supplies and components of Products from and after August 1,
1997, which are purchased in accordance with reasonable procurement practices at
least as efficient as those currently followed by Manufacturer, will be
reflected by an appropriate increase in the Materials component of
Manufacturer's Standard Cost for the affected item, and any net increase in
Manufacturer's labor costs from and after August 1, 1997 will be reflected by an
appropriate increase in the Labor component of Manufacturer's Standard Costs. In
the event of any such increase in Materials and/or Labor components of
Manufacturer's Standard Costs, the unit prices on Appendix B will be increased
to preserve the gross margins reflected in the unit prices in effect as of
August 1, 1997
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<PAGE> 8
(adjusted for any reduction pursuant to the first sentence of this Section 3.4).
3.5 Notwithstanding the foregoing provisions of this Article 3, it is
specifically understood by Customer and Manufacturer that in order for the
Products to remain competitive within the market for home healthcare beds,
pricing must remain competitive with market trends, yet at the same time each
party understands that Manufacturer must maintain the right to charge reasonable
prices that take into account direct and indirect manufacturing costs, capital
investment and profit. If market trends result in such pricing of Products
becoming non-competitive in the market for home healthcare beds, or if materials
and labor costs involved in manufacturing the Products should increase based on
inflation and other factors beyond Manufacturer's control, Customer and
Manufacturer will in good faith discuss and consider a revision of the Product
pricing terms set forth in this Article 3 in order to meet the reasonable
expectations of the parties. This provision commits the parties to do no more
than to meet and confer in good faith, and the inability of the parties to agree
to any modification of pricing based on discussions undertaken pursuant to this
provision shall not excuse either party from performance of such party's
obligations arising under this agreement or constitute cause for cancellation or
termination of this agreement.
4. TAXES AND OTHER GOVERNMENTAL CHARGES.
Any and all use, sales and other taxes, fees or charges of any
nature whatsoever imposed by any governmental authority on or with respect to
the sale of the Products to Customer shall be paid by and invoiced to Customer
as an addition to the purchase price of Products (unless a sale for resale or
other exemption is available which is supported by documentation reasonably
satisfactory to Manufacturer).
5. TERM AND TERMINATION.
5.1 This Agreement shall become effective when executed, and delivery
of the first bed units shall commence on or about August 1, 1997, or as the
parties may otherwise agree. The date on which said first bed units are
delivered shall be deemed the anniversary date of this Agreement. The term of
this Agreement shall expire two (2) years following the delivery of the first
bed units, and shall be automatically extended from year-to-year thereafter
unless terminated by either party upon written notice given at least one hundred
eighty days (180) days prior to its scheduled termination date based upon the
original term or any renewal thereof, unless sooner terminated by either party
upon written notice to the other at any time following the expiration of any
cure period following any notice of an Event of Manufacturer Default or Customer
Default (as hereinafter defined).
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5.2 Upon termination of this Agreement, Manufacturer shall observe
Customer's instructions regarding work in progress. Unless such termination is
due to an Event of Manufacturer's Default, Customer shall pay for all materials,
work in process and finished goods purchased or manufactured against Customer's
purchase orders.
5.3 All payment obligations of Customer for Products ordered prior to
any termination of this Agreement and all obligations and rights of both
Manufacturer and Customer in Articles 6, 8, 11, 14, 16, 22 and 23 shall survive
the termination or expiration of this Agreement.
6. PRODUCT WARRANTIES.
All Products sold by Manufacturer to Customer pursuant to this
Agreement shall be warranted by Manufacturer for a period of fifteen (15) months
from date of manufacture as provided herein to be free from defects in materials
and workmanship and to be manufactured in accordance with the Specifications,
all applicable generally recognized industry standards (including all applicable
UL and FDA requirements and standards) in accordance with the terms specified in
Appendix "D" hereto. Any claim for breach of such warranty must be submitted
within the specified warranty period. During said warranty period, Manufacturer
shall, at Manufacturer's option, either replace or repair, at no charge to
Customer, any Products (or parts of Products) that are found to be defective by
Manufacturer. Manufacturer will evaluate all claims for breach of such warranty
and provide a written report to Customer, within fifteen (15) business days
after submission, summarizing its findings. Customer shall return such defective
Products or parts or dispose of them as Manufacturer requests. In no event shall
Manufacturer's liability under this warranty provision exceed the replacement
cost of any defective Product.
7. REPRESENTATIONS AND RELATIONSHIP OF THE PARTIES.
7.1 Customer hereby represents and warrants to Manufacture that (i)
Customer owns or has the legal right to use all trademarks used on the Products;
(ii) Customer's design and specifications for the Products are free of defects;
and (iii) Customer has the legal right and ability to enter into this Agreement
and be bound by its terms.
7.2 Manufacturer hereby represents and warrants to Customer that (i)
Manufacturer will convey to Customer good title to the Products free and clear
of all security interests and liens; (ii) the Products will be manufactured in
accordance with Customer's specifications free of defects in materials and
workmanship; and (iii) Manufacturer has the legal right to enter into this
Agreement and be bound by its terms.
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7.3 This Agreement shall not be construed to make either party (or its
Affiliates, principals, officers, employees or agents) an Affiliate, agent ,
partner or joint venturer with the other party. Neither party shall have any
right or authority whatsoever to incur any liability, obligation (express or
implied), or to otherwise act in any manner in the name or on behalf of the
other, or to make any promise, warranty or representation binding on the other.
For purposes of this Agreement, the term "Affiliate" means any entity in which
Manufacturer or Customer, as the case may be, controls at least twenty percent
(20%) of the indicia of ownership or control, or which controls or is under
common control by a third party controlling such indicia of ownership or control
with Manufacturer or Customer, as the case may be.
8. TOOLING.
8.1 The parties acknowledge that in reliance upon a Letter of Intent
dated on or about January 15, 1997, Manufacturer has acquired and/or fabricated
for Customer's account the tooling described on Appendix "E" hereto (the
"Tooling") and Customer shall reimburse Manufacturer for such Tooling upon
receipt of the vendor's or Manufacturer's invoices for such Tooling. Customer
acknowledges that in many instances Manufacturer fabricated items of Tooling as
opposed to ordering same from outside vendors in order to save time and expedite
Manufacturer's preparation for commencing production. Further, Customer
acknowledges that all of said Tooling is reasonably necessary in that the prices
set forth in Appendix B are predicated upon utilizing such Tooling to
manufacture components in-house in lieu of out- sourcing such components.
8.2 As part of the Standard Cost of Products, Manufacturer shall
provide normal maintenance to the Tooling provided, however, that, in the event
Manufacture reasonably determines that any major repair or replacement of any
Tooling is required to manufacture Products hereunder (other than as a result of
Manufacturer's failure to provide normal maintenance or operator negligence),
Manufacturer shall advise Customer of such requirement and Manufacturer shall be
responsible for effecting such repair or replacement and Customer shall
reimburse Manufacturer for the reasonable costs of such major repair or
replacement. Customer shall be responsible for the cost of any additional
Tooling fabricated or purchased by Manufacturer at the request of Customer and
shall make payment therefor upon presentation of invoice(s) as set forth above.
8.3 Subject to the terms and provisions set forth herein, all Tooling
fabricated or acquired by Manufacturer and paid for by Customer under this
Agreement shall be returned to or for the account of Customer upon the earlier
to occur of (i) the Customer's request and direction for the return of such
Tooling upon the occurrence of a Force Majeure which prevents Manufacturer from
resuming full
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production within thirty (30) days following the onset thereof, or (ii) within
fifteen (15) days following the termination or expiration of this Agreement.
8.4 Manufacturer agrees to procure and maintain in full force and
effect throughout the term of this Agreement a policy of general insurance in
favor of Customer (as loss payee and additional insured) covering the
replacement value of the Tooling against loss or damage and any claims,
liabilities or expenses asserted by any person arising out of the use of such
Tooling. Manufacturer shall furnish to Customer a copy of such policy or
policies or a certificate from the insurance company or companies attesting to
such coverage. Such policy or policies shall contain provisions that the issuing
companies will not cancel or change such policy or policies except upon thirty
(30) days' prior written notice to Customer.
8.5 Manufacturer agrees that the Tooling acquired by Manufacturer for
the account of Customer will be used solely for the production of the Products
sold to Customer and that neither Manufacturer nor any of its Affiliates will
use the Tooling or any duplicates thereof to produce products of any kind for
any other party.
9. SUBMISSIONS TO REGULATORY AGENCIES.
9.1 Customer shall prepare and submit all documents required by the
FDA, UL and any other applicable regulatory agencies for approval to market the
Products. Manufacturer shall cooperate fully with Customer and such regulatory
agencies in the effort to obtain approval to market the Products, including
without limitation providing a right of reference to any plant files of
Manufacturer as may be required or providing such information and other
cooperation as may be necessary for approval. The parties recognize that
approval may be delayed or postponed by a regulatory agency through no fault of
the parties, and it is agreed that any such delay or postponement shall not
constitute a default under this Agreement. Subject to the confidentiality
provisions set forth herein, Customer shall allow Manufacturer access to such
parts of the documents submitted by it to regulatory authorities as may be
necessary for Manufacturer to satisfy its obligations under this Agreement.
9.2 Manufacturer shall prepare and submit all documents required by the
FDA, UL and any other applicable regulatory agencies for approval of any
facility utilized for manufacturing, packaging and testing the Products,
including without limitation any master file and any "Standard Operating
Procedures" required to comply with applicable good manufacturing practices
(GMP). Manufacturer shall not make any amendment to such file or other documents
without notification to, and prior approval, by Customer. Manufacturer and
Customer shall jointly perform all process and equipment validation required by
the FDA, UL and other applicable regulatory agencies for approval. The parties
recognize that approval may be delayed or postponed by a regulatory agency
through no fault of the parties, and it is agreed that
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any such delay or postponement shall not constitute a default under this
Agreement.
9.3 Prior to July 31, 1998 (unless extended by written agreement),
Manufacturer, at its sole cost and expense, will have obtained such
certification (by a recognized certification organization) and be in compliance
with all "CE" marking requirements as reasonably necessary to enable Customer to
market the Products in Customer's export markets. Customer shall provide such
support and assistance requested by Manufacturer as Customer is able, including
consulting services by Customer's employees with prior experience in obtaining
such certifications at no cost or charge to Manufacturer. Once any such
certification is obtained, Manufacturer shall maintain such certification
throughout the term of this Agreement. Failure of Manufacturer to obtain such
certification as specified herein and once obtained, to maintain such
certification shall constitute an Event of Manufacturer's Default which, if not
cured as provided herein, shall constitute cause to terminate this Agreement in
accordance with Section 13.2.
9.4 Customer and/or Manufacturer, as the case may be, shall advise the
other from time to time of the status of regulatory review of any submitted
documents by either party in connection with such party's fulfilling its
obligations to obtain regulatory approvals, etc., as provided herein, and any
consequential revision of any expected approval date. Customer shall notify
Manufacturer of any submission to any regulatory agency of any supplement,
amendment or revision to submitted documents which has an impact on
manufacturing, packaging or testing procedures used by Manufacturer, or on
Customer's estimates of the quantity of Products that Manufacturer will be
required to manufacture, package and test hereunder.
9.5 Each party shall obtain and maintain in full force and effect all
appropriate regulatory filings, authorizations, approvals and consents and shall
maintain all documents and records relating to its responsibilities with respect
to the Products. Each party shall promptly forward to the other party all
notices of adverse findings with respect to Products that it receives, and shall
cooperate fully with the other party in investigating each such incident.
10. MANUFACTURER'S OPERATIONS, INSPECTIONS AND REPORTS
CONCERNING FACILITIES.
10.1 Manufacturer shall manufacture, package and test the Products at
its Cerritos, California facility or other location reasonably acceptable to
Customer which complies with the requirements of Sections 10.2 and 10.3. During
the course of this Agreement, Manufacturer and Customer will closely cooperate
with each other in order to assure satisfactory compliance by Manufacturer with
Customer's manufacturing, packaging and testing standards and requirements. Each
party shall share with the other such party's manufacturing, packaging and
testing know-how relating to the procedures
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used for the manufacture of Products subject to the confidentiality provisions
set forth herein.
10.2 Prior to full scale manufacturing, packaging and testing by
Manufacturer of any Product that it has not previously manufactured, Customer's
employees shall be permitted to advise and inform the employees of Manufacturer
with respect to such of Customer's manufacturing, packaging, testing and other
production processes as may be necessary for Manufacturer to perform its
obligations hereunder (and shall do so at Manufacturer's request).
10.3 Customer's employees and representatives shall at all times adhere
to the safety regulations and practices and work schedules established by
Manufacturer.
10.4 Manufacturer shall keep appropriate records regarding its
manufacture of the Products at its Cerritos, California facility (or other
manufacturing facility designated pursuant to Section 9.1), in such form as
Customer may reasonably request, including monthly inventory and production
reports indicating quantities of raw materials, work-in-process and finished
Products (i) on hand at the beginning of each month, (ii) produced during the
month, and (iii) on hand at the end of the month. All such records shall be made
available to Customer for inspection at any time during regular business hours
upon reasonable prior notice.
10.5 Upon prior request, Manufacturer shall provide Customer or its
designees access at all reasonable times to its Manufacturer's manufacturing
facility (in Cerritos, California or other manufacturing facility designated
pursuant to Section 9.1) to observe and inspect all phases of the work performed
by Manufacturer under this Agreement. Without limiting the generality of the
foregoing, Manufacturer shall permit Customer or its designees from time to
time: (i) to inspect such facility; and (ii) to review the compliance of
Manufacturer with its obligations as set forth herein regarding manufacturing
practices and procedures.
10.6 Manufacturer shall permit Customer or its designees to meet and
confer with the General Manager (or equivalent) of such manufacturing facility
and such other executives of Manufacturer or key managerial personnel employed
at such manufacturing facility as Customer may reasonably request. Manufacturer
shall also cause such personnel to provide Customer and its designees such
regular and special reports and other information as may be reasonably requested
by Customer to protect the interests of Customer under this Agreement.
11. INDEMNITY AND INSURANCE.
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11.1 Manufacturer shall defend, indemnify and hold Customer, its
directors, officers and employees harmless from and against any and all costs,
damages, expenses (including reasonable attorneys' fees), losses, suits, claims,
demands and liability including those arising out of bodily injury (including
death), property damage, and personal injury to the extent such results from or
arises out of any act, omission, misrepresentation, negligence or breach of this
Agreement by Manufacturer.
11.2 Customer shall defend, indemnify and hold Manufacturer, its
directors, officers and employees harmless from and against any and all costs,
damages, expenses (including reasonable attorneys' fees), losses, suits, claims,
demands and liability including those arising out of bodily injury (including
death), property damage, and personal injury to the extent such results from or
arises out of any act, omission, misrepresentation, negligence or breach of this
Agreement by Customer.
11.3 Manufacturer agrees to procure and maintain the product liability
insurance coverages for manufacturing described on Appendix F to this Agreement,
and Customer agrees to maintain the product liability insurance coverages for
design described on Appendix G to this Agreement, or, in each case,
substantially similar coverages, covering all Products manufactured and sold
under this Agreement, and each party shall cause the other party to be named as
an additional insured under each of its policies. Each party shall furnish to
the other party a copy of each of its policies or a certificate from the
insurance company or companies attesting such coverage. Each such policy shall
contain provisions that the issuing company will not cancel or change such
policy except upon thirty (30) days' prior written notice to the party so named
as loss payee and additional insured.
12. EVENTS OF CUSTOMER DEFAULT.
12.1 Each of the following shall constitute and "Event of Customer
Default":
(i) the failure by Customer to make any payment due to
Manufacturer hereunder including late charges, if any, (except for the payment
of any amount which is the subject of a good faith dispute between the parties)
within fifteen (15) business days after Manufacturer has given written notice to
Customer, in accordance with the terms of this Agreement for giving notice, that
such payment is sixty (60) or more days past due;
(ii) following any material breach of this Agreement by
Customer which is not remedied within thirty (30) business days after
Manufacturer has given written notice to Customer, in accordance with the terms
of this Agreement for giving notice, of such breach (without limiting the
foregoing, any breach by Customer of its obligations under Sections 1.2, Section
1.3, Article 10, Article 11 and Section 16.2 (shall be deemed in material breach
of this Agreement), unless Customer is diligently pursuing the cure for
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such remedy within the applicable period and such breach is cured within sixty
(60) business days from the date of such written notice;
(iii) the commencement by Customer of a voluntary proceeding
under the federal bankruptcy laws or any similar state bankruptcy or insolvency
law; or the consent by Customer to the institution of such proceedings against
it or to the appointment of or the taking possession by a receiver, liquidator,
assignee, trustee, custodian or sequestrator (or similar official) of Customer
or of all or substantially all of its properties; or the making by Customer of a
general assignment for the benefit of creditors;
(iv) the entry of a decree or order for relief by a court
having jurisdiction in respect of Customer: adjudging Customer a bankrupt or
insolvent; or approving as properly filed a petition seeking a reorganization,
arrangement, adjustment or composition of or in respect of Customer in any
involuntary proceeding or case under the federal bankruptcy laws or any similar
state bankruptcy or insolvency law; or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of Customer
or of all or substantially all of its properties; or ordering the winding-up or
liquidation of its affairs; and the continuation of such decree or order
unstayed and in effect for a period of thirty (30) days; or
(v) the dissolution or liquidation of Customer, other than in
connection with a merger, consolidation or reorganization under the terms of
which the surviving corporation remains liable for all obligations of Customer
to Manufacturer hereunder.
12.2 Upon the occurrence of an Event of Customer Default, Manufacturer
shall have the right by written notice to Customer, in accordance with the terms
hereof for giving notice, to (i) terminate this Agreement, (ii) collect what is
owed for any and all unpaid invoices determined pursuant to Section 3.2, above,
and (iii) obtain liquidated damages equal to the product of (A) $40.00 and (B)
the difference between 15,000 beds and the number of beds ordered by Customer
between August 1 and the date of such occurrence.
13. EVENTS OF MANUFACTURER DEFAULT.
13.1 Each of the following shall constitute an "Event of Manufacturer
Default":
(i) following any material breach of this Agreement by
Manufacturer which is not remedied within thirty (30) business days after
Customer has given written notice to Manufacturer, in accordance with the terms
of this Agreement for giving notice, of such breach (without limiting the
foregoing, any breach by Manufacturer of any of its obligations under Section
1.1, Section 1.2, Section 2.3, Section 2.4, Article 6, Section 8.4, Article 9,
Section 10.2, Section 10.3, Article 11, or Article 16 hereof shall be deemed a
material breach of this Agreement), unless Manufacturer is diligently pursuing
the cure
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for such remedy within the applicable period and such breach is cured within
sixty (60) business days from the date of such written notice;
(ii) the commencement by Manufacturer of a voluntary
proceeding under the federal bankruptcy laws or any similar state bankruptcy or
insolvency law; or the consent by Manufacturer to the institution of such
proceedings against it or to the appointment of or the taking possession by a
receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar
official) of Manufacturer or of all or substantially all of its properties; or
the making by Manufacturer of a general assignment for the benefit of creditors;
(iii) the entry of a decree or order for relief by a court
having jurisdiction in respect of Manufacturer: adjudging Manufacturer a
bankrupt or insolvent; or approving as properly filed a petition seeking a
reorganization, arrangement, adjustment or composition of or in respect of
Manufacturer in any involuntary proceeding or case under the federal bankruptcy
laws or any similar state bankruptcy or insolvency law; or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of Manufacturer, or of all or substantially all of its properties; or
ordering the winding-up or liquidation of its affairs; and the continuation of
such decree or order unstayed and in effect for a period of thirty (30) days; or
(iv) the dissolution or liquidation of Manufacturer, other
than in connection with a merger, consolidation or reorganization under the
terms of which the surviving corporation remains liable for all obligations of
Manufacturer to Customer hereunder.
13.2 Upon the occurrence of an Event of Manufacturer Default, Customer
shall have the right by written notice to Manufacturer, in accordance with the
terms hereof for the giving of notice, to (i) terminate this Agreement, (ii)
repossess the Tooling and (iii) obtain liquidated damages equal to the product
of (A) $40.00 and (B) the difference between 25,000 beds and the number of beds
supplied by Manufacturer between the previous August 1 and the date of such
occurrence.
13.3 Manufacturer hereby acknowledges that Customer and its Affiliates
will suffer irreparable and continuing harm upon the occurrence of an Event of
Manufacturer Default unless Customer is allowed to recover its Tooling as
provided herein or if Manufacturer uses such Tooling or any copies thereof to
manufacture Products in violation of the terms of this Agreement, and that legal
remedies would be inadequate in the event thereof. Accordingly, Manufacturer
agrees that, upon the occurrence of an Event of Manufacturer Default, Customer
and its Affiliates shall, in addition to any other rights and remedies available
under law and in equity, have the right and remedy to obtain injunctive relief
and to have the provisions of this Agreement specifically enforced by any court
having equity jurisdiction so as to prevent such irreparable and continuing
harm. Manufacturer and Customer hereby confer non-exclusive jurisdiction to
enforce the
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provisions of this Agreement upon the federal or the state courts located in Los
Angeles, California, and each consents to service of process by means of
delivery in the same manner required for notices under this Agreement as
provided in Article 21 of this Agreement.
14. PATENT INFRINGEMENT.
14.1 Customer agrees, at its own expense, to defend any action or suit
brought against Manufacturer alleging that any Product or any part thereof
manufactured in accordance with the Specifications infringes any enforceable
patent issued to any other person or any valid trade secret, proprietary
information or other intellectual property right of any other person. Customer
will pay all costs and damages, including all costs of defense and attorneys'
fees and also including any judgment awarded against Manufacturer in any such
suit; provided, however, that Customer is promptly notified in writing of such
action or suit and is given full authority and full and proper information and
assistance available to Manufacturer for the defense of said action or suit.
Customer shall not be responsible for any compromise or settlement of such suit
or action made by Manufacturer without Customer's consent.
14.2 If the use or sale of any Product becomes (or in the opinion of
Customer is likely to become) the subject of an infringement claim, Customer
may, at its option and expense, (i) secure a right to use or sell the Product or
(ii) make modifications to the Specifications that would render the use or sale
of the Product non-infringing, provided, however, that Manufacturer may adjust
prices as reasonably necessary to reflect any increased costs of labor or
materials resulting from any such modification of the Specifications.
14.3 The foregoing indemnification shall not apply if the infringement
arises from Products not manufactured by Manufacturer pursuant to this Agreement
in accordance with the Specifications.
15. FORCE MAJEURE.
15.1 Neither party shall be liable for any loss, damage or penalty as a
result of any delay in or failure to manufacture, deliver or otherwise perform
hereunder due to any cause demonstrably beyond that party's reasonable control,
including without limitation: embargo; governmental act, order, ruling,
regulation or request; fire; explosion; accident; theft; vandalism; riot;
shortages; strike or other work stoppage; lightning, flood, windstorm or other
act of God; delay in transportation; equipment or tooling failure; or inability
to obtain necessary fuel, materials, supplies or power. The party suspending
performance in whole or in part as a result of any such delay or failure shall
give prompt written notice thereof to the other party, stating therein the
nature thereof, the specific reasons therefor, and the expected duration thereof
and any alternatives thereto which such party believes
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may reasonably be pursued, and shall resume performance as soon as reasonably
possible. Following any occurrence that causes any party to suspend performance
in whole or in part, such party shall promptly initiate such reasonable measures
as will, if reasonably possible, remove or relieve such suspension so as to
enable it to resume performance of its obligations as soon as reasonably
possible. During the continuance of such delay or failure which prevents the
delivery or ordering of Products hereunder for a period of twenty (20) or more
business days, the quantities of beds for which liquidated damages would other
wise be payable under Section 1.2(iv), Section 12.2 and/or Section 13.2 of this
Agreement shall be reduced by the quantity of beds affected by such delay or
failure.
15.2 If any Force Majeure prevents either party from resuming
performance under the agreement after the passage of thirty (30) days, upon the
election of the other party this agreement will be deemed terminated as though
it had expired according to its terms; provided, however, if Customer does not
take delivery and pay for all Products produced pursuant to purchase orders
issued prior to the commencement of such Force Majeure and buy from Manufacturer
at cost all raw materials which Manufacturer had purchased pursuant to
Customer's forecasts and/or purchase orders given to Manufacturer prior to the
onset of such Force Majeure, Manufacturer shall be entitled to utilize such raw
materials then in its possession to produce completed Products, and to then sell
all such Products (beds, parts and accessories, etc., as the case may be)
without limitation or restriction. Upon completion of all manufacturing
processes as provided herein, Customer shall be entitled to recover possession
of its tooling. If the Force Majeure prevents Manufacturer from resuming
production within thirty (30) days, Customer shall be entitled to take
possession of all tooling and buy at cost all unused raw materials that
Manufacturer may have acquired pursuant to purchase orders and/or forecasts.
16. NONDISCLOSURE OF INFORMATION; NON-COMPETITION.
16.1 Each party hereby agrees that all information relating to this
Agreement disclosed to it by the other party, which information is in fact
confidential or proprietary when disclosed to the other party or is then claimed
and marked by the disclosing party to be confidential or proprietary, will be
held and safeguarded by the receiving party as confidential information of the
disclosing party, and the receiving party shall exert reasonable efforts in a
manner consistent with the efforts which the receiving party uses to protect its
own information to prevent any publication or other disclosure of such
confidential information received from the disclosing party without the express
authorization of the disclosing party. Customer's Specifications and designs are
trade secrets of Customer and shall be treated as confidential and proprietary
under this clause. Manufacturer agrees that only employees at its applicable
manufacturing facility with a need to know for purposes of performance of this
Agreement may have access to Customer's Specifications and designs and other
confidential and proprietary data of Customer. The restrictions of this Section
16.1 shall not apply to information which
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becomes generally available to the public through no fault of the receiving
party. Neither party shall be in breach of this provision when complying with
any lawful order, notice or subpena, or when making necessary disclosures in
connection with any regulatory submissions contemplated by this Agreement.
16.2 Customer and Manufacturer agree that each party's agents and
employees who may have access to the plant and facilities or confidential
information of the other party shall sign and be bound by an appropriate
Non-Disclosure and Confidentiality Agreement in the form set forth on Appendix H
hereto.
16.3 During the term of this Agreement neither Manufacturer nor any
Affiliate of Manufacturer shall manufacture or sell any home healthcare bed
products based upon Customer's design or any modification or revision thereof
other than to Customer as provided herein, nor develop tooling for any such home
healthcare bed products based on customer's tooling or any modification or
revision thereof.
17. HEADINGS.
The section headings herein are for convenience only and shall
not be deemed to affect in any way the language of the provisions to which they
refer.
18. FAILURE TO ENFORCE.
The failure of either party to enforce any of the terms of
this Agreement shall not be construed as a waiver of rights hereunder preventing
the subsequent enforcement of such provisions or the recovery of damages for
breach thereof.
19. SEVERABILITY.
In the event that any one or more provisions contained in this
Agreement or any application thereof shall be held to be invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of the
remaining provisions of this Agreement and any other application thereof shall
not in any way be affected or impaired thereby; provided, however, that to the
extent permitted by applicable law, any invalid, illegal or unenforceable
provision may be considered for the purpose of determining the intent of the
parties in connection with the other provisions of this Agreement.
20. ENTIRE AGREEMENT.
20.1 This Agreement constitutes the entire Agreement between
manufacturer and Customer, superseding any prior agreement between the parties.
No modification of this Agreement shall be binding unless in writing and signed
by authorized representatives
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of both parties.
20.2 This Agreement is intended to cover all sales of Products by
Manufacturer to Customer hereunder. Except as agreed to herein and unless
otherwise expressly agreed to in writing, no written or printed terms or
conditions in any purchase order, order confirmation, invoice or other document
forwarded by either party to the other shall have the effect of varying any of
the terms hereof, and the provisions of this Agreement shall be controlling.
21. NOTICES.
All notices, communications and demands under this Agreement
shall be in English and shall be made in writing by hand delivery, telefax,
courier, registered or certified mail, return receipt requested, or by any other
means of delivery which enables the sending party to verify receipt thereof.
Such notice shall conclusively be presumed to be given or made: (i) at the time
it is personally given or made in the case of personal delivery or transmission
by telefax (with receipt confirmed); (ii) on the next business day after being
sent by reputable overnight courier; or (iii) five (5) business days after
mailing with sufficient postage or cost prepaid in the case of mail. All notices
sent by means other than those made by hand delivery or registered or certified
mail, return receipt requested, shall be promptly confirmed by registered or
certified mail, return receipt requested. Any notices shall be addressed as
follows:
If to Manufacturer: Maxwell Products, Inc.
13151 Midway Place
Cerritos, California 90703
Attn: President
Fax: (310) 926-1656
With a copy to: Arthur L. Rolston, Esq.
Billet & Kaplan
1888 Century Park East
Suite 1700
Los Angeles, California 90067-1721
Fax: (310) 277-7062
If to Customer: Graham-Field Health Products, Inc.
400 Rabro Drive East
Hauppauge, New York 11788
Attn: General Counsel
Fax: (516) 582-5608
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With a copy to: Everest & Jennings, Inc.
c/o Graham-Field Temco, Inc.
400 Rabro Drive East
Hauppauge, New York 11788
Attn: President
Fax: (516) 582-5608
or to such other person or address as either party may, by likely
notice, specify to other.
22. CHOICE OF LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of California, without regard to its
principles of conflicts of laws.
23. RESOLUTION BY NEGOTIATION; ARBITRATION.
23.1 Except in the event of any litigation or proceeding commenced by
any third party against either Manufacturer or Customer in which the other party
is an indispensable party or potential third party defendant, and except for any
action seeking enforcement of this Agreement pursuant to Section 13.3 of this
Agreement, any dispute or controversy between the parties involving the
interpretation, construction or application of any terms, covenants or
conditions of this Agreement, or transactions under it, or any claim arising out
of or relating to this Agreement, or transactions under it, shall on the request
of one party served on the other, be submitted for resolution by senior
executives designated by each party, who shall attempt to resolve such dispute
or controversy in good faith and, in the event such resolution is not achieved
within fifteen (15) business days of such request, shall be submitted to binding
arbitration in accordance with provisions of this Section 23.
23.2 Any such dispute, controversy or claim shall be resolved by
binding arbitration conducted in New York, New York if initiated by Manufacturer
or in Los Angeles, California if initiated by Customer (except as otherwise may
be agreed by the parties in their discretion) in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect, except
as herein specifically otherwise stated or amplified, and judgement upon any
award rendered by the arbitrators may be entered in any court having
jurisdiction over the party against whom the award is sought to be entered. Any
arbitration hereunder shall be conducted before and decided by a single
arbitrator who is a retired judge or judicial officer experienced in
adjudicating commercial disputes jointly selected by the parties if they can
agree, or appointed by the American Arbitration Association pursuant to its
rules if the parties have not agreed within thirty (30) days upon the filing and
serving of the Demand as set forth herein.
- 18 -
<PAGE> 22
23.3 Notwithstanding anything to the contrary which may now or
hereafter be contained in the Commercial Arbitration Rules of the American
Arbitration Association, the procedures set out in this Section 23.3 shall
apply.
(i) A notice of arbitration shall set out a clear and plain
statement of the matter that the party sending the notice (the "Instituting
Party") believes to be a breach or is in dispute. The demand (the "Demand")
shall reference principal provisions of this Agreement that the Instituting
Party views as controlling or out of the interpretation of which the dispute
arises, and shall attach, if practicable, or, if not practicable, shall make
available, copies of all pertinent documents and other things then in its
possession which the Instituting Party views as having direct bearing on the
relief sought under the Demand. The receiving party (the "Other Party") shall,
within twenty (20) days of receipt of the Demand, provide to the Instituting
Party and to the arbitrators a response (the "Answer"), referencing provisions
of this Agreement that the Other Party views as controlling , and shall attach,
if practicable, or, if not practicable, shall make available, copies of all
pertinent documents and other things (other than those attached to the Demand)
then in its possession which it views as having direct bearing to support the
contentions of the Answer.
(ii) Subject to the authority of the arbitrator to allocate or
award costs to one party or the other as part of any award, the parties shall
share the costs (fees) of the arbitrator.
(iii) Discovery shall be liberally allowed by the arbitrator
as contemplated by the U.S. Federal Rules of Civil Procedure, subject, however,
to such limitations as the arbitrator determines to be appropriate under the
circumstances, it being the parties mutual desire to have a prompt and efficient
arbitration.
(iv) The arbitrator shall endeavor to promptly schedule and
hold hearings (on consecutive days if practicable), and shall have authority to
award relief (other than punitive damages) under legal or equitable principles,
including interim or preliminary relief. Nothing in this Section 23.3 shall
impair the right of a party to seek interim or preliminary relief in a court of
competent jurisdiction before the arbitrator is appointed. The arbitrator may
award attorneys' fees and expenses to the prevailing party in addition to any
other relief to which such party may be entitled.
(v) The arbitrator shall, upon the request of either party,
promptly (and in all events within thirty (30) days of the conclusion of the
hearing) issue a proposed written opinion of his findings of fact and
conclusions of law which shall become final and binding in accordance with the
terms thereof unless either or both parties seek reconsideration in accordance
with Subsection 23.3(vi). In making his decision, the arbitrator shall be bound
by the terms of this Agreement. The arbitrator shall award reasonable attorneys'
fees and expenses to the prevailing party in addition to any other
- 19 -
<PAGE> 23
relief to which such party may be entitled.
(vi) Either party shall have the right, within twenty (20)
days of receipt of the arbitrator's proposed opinion, to file with the
arbitrator a motion to reconsider (accompanied by a reasoned memorandum), and
the other party shall have twenty (20) days to respond to that memorandum. After
receipt of such memorandum and response, if any, the arbitrator thereupon shall
reconsider the issues raised by said motion and, promptly, either confirm or
change his decision which shall then be final and conclusive upon both parties.
The costs of such a motion for reconsideration and written opinion of the
arbitrator shall be borne by the moving party, or shared equally by both parties
if both parties request such reconsideration, and each party shall bear its own
attorneys' fees in connection with any such motion (or request) for
reconsideration.
24. BINDING AGREEMENT.
This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. This Agreement shall
be assignable by either party only with the written consent of the other party,
which shall not be unreasonably withheld Upon any assignment, the assignor shall
remain obligated for the performance of all then existing or thereafter arising
obligations as provided herein. However, Customer may assign this Agreement to a
purchaser of Customer's home healthcare bed product line who agrees in writing
to assume Customer's obligations to Manufacturer and Customer will then be
released from all accrued and unaccrued obligations thereafter arising only if
Manufacturer reasonably determines that the proposed assignee is of equal or
greater credit-worthiness in financial strength as is Customer as of the date of
such proposed assignment. In no event shall any assignment relieve Customer from
liability for all accrued and unaccrued obligations arising hereunder based upon
events, occurrences or transactions prior to such assignment or based upon
purchase orders and forecasts issued prior to such assignment.
25. COUNTERPARTS.
This Agreement may be signed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, an authorized representative of each party
has signed this Supply Agreement below.
- 20 -
<PAGE> 24
"MANUFACTURER": "CUSTOMER":
MAXWELL PRODUCTS, INC. GRAHAM-FIELD HEALTH PRODUCTS, INC.
By:____________________________ By:_______________________________
Name:__________________________ Name:____________________________
Title:_________________________ Title:________________________
- 21 -
<PAGE> 25
APPENDIX A
PRODUCTS AND SPECIFICATIONS
MODEL DESCRIPTION
SD258-5523 full electric-shaft
SD858-5522 semi electric-shaft
SD858-5520 manual shaft
The cable versions of these products shall be added to this list as
agreed by the parties.
- 22 -
<PAGE> 26
APPENDIX B
PRICES
<TABLE>
<CAPTION>
BEDS
- ----
<S> <C>
2 motor semi-electric (California) $357.62 ea., FOB Cerritos
3 motor full-electric - $
manual - $
fixed height - $
extra long - $
</TABLE>
(Prices Not Specified Shall Be Negotiated Based On Final Design)
PARTS AND ACCESSORIES
[to be added later by the parties based on final design and manufacturers'
costing analysis]
- 23 -
<PAGE> 27
APPENDIX C
MANUFACTURER'S STANDARD COSTS
<TABLE>
<S> <C>
Head Motor $36.91
Foot Motor $36.87
Hand Control & PCB $17.82 (includes duty & frt.)
Helical Spring $ 9.75 (92 ea. of 3 sizes)
Inner Spring Decking $ 9.71 (2 sections)
</TABLE>
- 24 -
<PAGE> 28
APPENDIX D
MANUFACTURER'S WARRANTY ON HOME HEALTHCARE
PRODUCTS MANUFACTURED FOR GRAHAM-FIELD, INC.
AND SUBSIDIARIES PURSUANT TO SUPPLY AGREEMENT
DATED APRIL 3, 1997
Maxwell Products, Inc. ("Maxwell"), hereby warrants that all products
covered by this warranty shall be warranted by Maxwell for a period of fifteen
(15) months from the date of manufacture to be free from defects in materials
and workmanship.
This warranty shall not apply to any parts that have been subjected to
misuse or improper service, that have been damaged in transit or handling, or
that have been altered or repaired by unauthorized representatives.
Any claim arising under this warranty must be submitted within the
warranty period specified above. During said warranty period Maxwell shall, at
its option, either replace or repair, at no charge to Graham-Field, any parts of
components that are found to be defective by Maxwell. Maxwell shall not be
responsible for or obligated to pay for freight or other transportation related
costs or expenses in connection with any defective products or components that
are returned to Maxwell's facility and/or any replacement products or components
that are shipped from Maxwell's facility pursuant to this warranty.
IN NO EVENT SHALL MAXWELL'S LIABILITY UNDER THIS WARRANTY EXCEED THE
REPLACEMENT COST OF ANY DEFECTIVE PRODUCT OR COMPONENT THEREOF AND MAXWELL SHALL
NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY OTHER
DAMAGE OR LOSS NOT EXPRESSLY ASSUMED AS SET FORTH HEREIN.
The foregoing constitutes an express warranty on the terms set forth
above and is the only warranty or warranties applicable to the products it
covers, all other warranties being denied. This warranty is expressly in lieu of
all other warranties, whether expressed or implied.
<PAGE> 29
APPENDIX E
TOOLING
- 26 -
<PAGE> 30
APPENDIX F
MANUFACTURER'S PRODUCT LIABILITY INSURANCE COVERAGES
- 27 -
<PAGE> 31
APPENDIX G
CUSTOMER'S PRODUCT LIABILITY INSURANCE COVERAGES
- 28 -
<PAGE> 32
APPENDIX H
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
WHEREAS the undersigned is employed by either Manufacturer or Customer
as provided in that certain Supply Agreement dated March ____, 1997; and
WHEREAS in connection therewith the undersigned may be provided with
access to Customer's or Manufacturer's confidential and proprietary information
concerning the design, manufacturing process, components and marketing plans and
strategies related to the design and manufacturing of the Products as identified
in said Supply Agreement excluding any information in the public domain or known
to such party independent of any involvement in the relationship of the parties
under the Supply Agreement (the "Confidential Information").
NOW, THEREFORE, IT IS AGREED that for good and valuable consideration,
the undersigned herewith promises to keep confidential, not disclose and to take
all necessary precautions to prevent disclosure by others, of any and all
Confidential Information of both a technical and commercial nature including but
not limited to product design and related technical data of every kind and
description, business and market information, customer lists and/or needs and/or
requirements, cost and price data, source and supply data, processes and
procedures and other trade secrets. Furthermore, the undersigned shall not use
any of the Confidential Information, or allow it to be used by any of the
undersigned's co-employees or workers or any other person without written
authorization from Customer or Manufacturer, as the case may be unless such
person has also signed a Nondisclosure and Confidentiality Agreement identical
hereto. The promises and covenants herein shall remain in full force and effect
following termination of said Supply Agreement. The undersigned expressly agrees
that in the event either Customer or Manufacturer commences any action to
enforce the provisions of this Non-Disclosure Agreement, said party shall be
entitled to injunctive relief in addition to any other relief which may be
granted. The undersigned expressly consents to the jurisdiction of and venue in
the Superior Court of the State of California sitting in the County of Los
Angeles.
Dated:______________ ________________
________________
________________
________________
- 29 -
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEET AT JUNE 30, 1997 AND THE CONDENSED
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED JUNE 30, 1997
AS INCLUDED IN THE FORM 10Q FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1997 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 1,980
<SECURITIES> 0
<RECEIVABLES> 63,016
<ALLOWANCES> 0
<INVENTORY> 51,421
<CURRENT-ASSETS> 122,772
<PP&E> 12,846
<DEPRECIATION> 0
<TOTAL-ASSETS> 241,012
<CURRENT-LIABILITIES> 98,043
<BONDS> 0
0
31,600
<COMMON> 496
<OTHER-SE> 98,286
<TOTAL-LIABILITY-AND-EQUITY> 241,012
<SALES> 57,592
<TOTAL-REVENUES> 57,828
<CGS> 38,722
<TOTAL-COSTS> 38,722
<OTHER-EXPENSES> 13,720
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,147
<INCOME-PRETAX> 4,239
<INCOME-TAX> 1,623
<INCOME-CONTINUING> 2,349
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,349
<EPS-PRIMARY> .11
<EPS-DILUTED> .11
</TABLE>
