EXHIBIT 10.23
PSC INC.
PSC SCANNING, INC.
675 Basket Road
Webster, New York 14580
December 29, 1997
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
200 Clarendon Street
Boston, Massachusetts 02117
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
LINCOLN NATIONAL INCOME FUND, INC.
c/o Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Ft. Wayne, Indiana 46802
SECURITY-CONNECTICUT CORPORATION
SECURITY-CONNECTICUT LIFE INSURANCE COMPANY
20 Security Drive
Avon, Connecticut 06001
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
c/o Alliance Capital Management L.P.
1345 Avenue of the Americas, 37th Floor
New York, New York 10105
Re: Consent and Waiver Under Securities Purchase Agreements and Warrants
Ladies and Gentlemen:
PSC INC., a New York corporation (the "Holding Company"), and PSC
SCANNING, INC., a Delaware corporation (formerly named SpectraScan, Inc.) and a
Wholly-Owned Subsidiary of the Holding Company (the "Operating Company") (the
Holding Company and the Operating Company are sometimes collectively referred to
herein as the "Companies" and each as a "Company"), jointly and severally agree
with you as follows:
1. Definitions. Reference is hereby made to those certain Securities
Purchase Agreements dated July 12, 1996, as amended by Amendment No. 1 to
Securities Purchase Agreements dated October 10, 1996, Amendment No. 2 and
Waivers Under Securities Purchase Agreements dated as of July 4, 1997 and
Amendment No. 3 to Securities Purchase Agreements and Warrants dated August 18,
1997 (as the same may be amended, modified or supplemented from time to time,
the "Securities Purchase Agreements"), among the Holding Company, the Operating
Company and each of you. Capitalized terms used herein without definition have
the meanings ascribed to them in the Securities Purchase Agreements.
2. Consent to Rights Plan.
(a) Reference is hereby made to the Summary of Rights to
Purchase Preferred Stock, a true, correct and complete copy of which is
attached hereto as Exhibit A (the "Summary"), the Rights Agreement
referred to in the Summary, a true, correct and complete copy of which
is attached hereto as Exhibit B (the "Rights Agreement"), and the
Certificate of Amendment referred to in the Summary, a true, correct
and complete copy of which is attached hereto as Exhibit C (the
"Certificate of Amendment").
(b) Each of you hereby (i) consents to the declaration of the
dividend of the Rights (as defined in the Summary) in accordance with
the Summary and Rights Agreement and to the amendment of the Company's
Organizational Documents as provided in the Certificate of Amendment
and (ii) waives any breach of section 14.6 or 14.16 of the Securities
Purchase Agreements arising solely on account thereof; provided that
nothing herein shall be deemed to be (x) a consent to any other
transaction, including, without limitation, any other issuance of
securities by the Holding Company in connection with or related to the
Rights or otherwise, or (y) a waiver of any right of any holder of any
Warrant to any adjustment to the Exercise Price or the number of
Warrant Shares issuable upon exercise of the Warrants which may be
required under the terms of the Warrants on account of the issuance of
the Rights or the Units (each as defined in the Summary) or any other
related transaction or event.
(c) The Holding Company agrees that (i) the holders of the
Warrants will be entitled to such adjustments as are provided for under
the terms of the Warrants upon the issuance of the Rights and/or upon
the exercise of the Rights, (ii) all such adjustments will be
satisfactory to the Required Holders of the Warrants at the time
outstanding and (iii) the Warrants and the Warrant Shares shall not be
included in any determination of whether any Person or Persons
constitute an Acquiring Person (as defined in the Summary).
3. No Default, Representations and Warranties, etc.
(a) The Companies represent and warrant that, except as
otherwise modified by (i) the documents referred to in section 5(a)(i)
of Amendment No. 3 to Securities Purchase Agreements and Warrants dated
August 18, 1997, (ii) the projections referred to on Exhibit B attached
to Amendment No. 2 and Waivers under Securities Purchase Agreements
dated as of July 4, 1997, (iii) the information delivered to the
Purchasers on June 11, 1997, which is attached to Amendment No. 2 and
Waivers Under Securities Purchase Agreements dated as of July 4, 1997
as Exhibit C, and (iv) the following documents filed by the Holding
Company with the Commission under the Exchange Act: (A) Form 10-Q for
the quarters ended July 4, 1997 and October 3, 1997 and (B) Form 8-K
filed on September 24, 1997, the representations and warranties
contained in the Securities Purchase Agreements and the other Operative
Documents are in all material respects correct on and as of the date
hereof as if made on such date (except to the extent affected by the
consummation of transactions permitted by the Securities Purchase
Agreements). The Companies further represent and warrant that, after
giving effect to the provisions of this Letter Agreement, no Default or
Event of Default exists.
(b) The Companies each ratify and confirm the Securities
Purchase Agreements and each of the other Operative Documents to which
each is a party and agree that each such agreement, document and
instrument is in full force and effect, that its obligations thereunder
and under this Letter Agreement are its legal, valid and binding
obligations enforceable against it in accordance with the terms thereof
and hereof and that it has no defense, whether legal or equitable,
setoff or counterclaim to the payment and performance of such
obligations.
(c) The Companies agree that (i) if any default shall be made
in the performance or observance of any covenant, agreement or
condition contained in this Letter Agreement or in any agreement,
document or instrument executed in connection herewith or pursuant
hereto or (ii) if any representation or warranty made by the Companies
herein or therein shall prove to have been false or incorrect on the
date as of which made, the same shall constitute an Event of Default
under the Securities Purchase Agreements and the other Operative
Documents and, in such event, you and each other holder of any of the
Notes shall have all rights and remedies provided by law and/or
provided or referred to in the Securities Purchase Agreements and the
other Operative Documents. The Companies further agree that this Letter
Agreement is an Operative Document and all references thereto in the
Securities Purchase Agreements and in any other of the other Operative
Documents shall include this Letter Agreement.
4. Payment of Transaction Costs. The Companies shall pay all reasonable
fees and disbursements incurred by you in connection herewith, including,
without limitation, the reasonable fees, expenses and disbursements of your
special counsel.
5. Governing Law. This Letter Agreement, including the validity hereof
and the rights and obligations of the parties hereunder, shall be construed in
accordance with and governed by the domestic substantive laws of the State of
New York without giving effect to any choice of law or conflicts of law
provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.
6. Miscellaneous. The headings in this Letter Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Letter Agreement embodies the entire agreement and understanding
among the parties hereto and supersedes all prior agreements and understandings
relating to the subject matter hereof. In case any provision in this Letter
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. This Letter Agreement may be executed in any number of
counterparts and by the parties hereto on separate counterparts but all such
counterparts shall together constitute but one and the same instrument.
[The remainder of this page is intentionally left blank.]
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart hereof, whereupon this Letter
Agreement shall become a binding agreement under seal among the parties hereto.
Please then return one of such counterparts to the Companies.
Very truly yours,
PSC INC.
By: _____________________________
(Title)
PSC SCANNING, INC.
By: _____________________________
(Title)
Each of the undersigned (a) acknowledges and assents to the terms and
provisions of the foregoing Letter Agreement and (b) ratifies and confirms each
of the Operative Documents to which it is a party and agrees that each such
Operative Document is in full force and effect, that its obligations thereunder
are its legal, valid and binding obligations enforceable against it in
accordance with the terms thereof and that it has no defense, whether legal or
equitable, setoff or counterclaim, to the payment and performance of such
obligations.
INSTAREAD CORPORATION
By: _____________________________
(Title)
PSC AUTOMATION, INC.
(formerly named Laserdata Corporation)
By: _____________________________
(Title)
LASERDATA HOLDINGS, INC.
By: _____________________________
(Title)
PSC S.A., INC.
By: _____________________________
(Title)
PSC SCANNING SYSTEMS, INC.
By: _____________________________
(Title)
The foregoing is hereby accepted and agreed to:
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By: _____________________________
(Title)
JOHN HANCOCK VARIABLE LIFE
INSURANCE COMPANY
By: _______________________________
(Title)
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment Management, Inc.
Its Attorney-in-Fact
By: ___________________________
(Title)
LINCOLN NATIONAL INCOME FUND, INC.
By: _______________________________
(Title)
RELIASTAR FINANCIAL CORP., as successor
to Security-Connecticut Corporation
By: _______________________________
(Title)
SECURITY-CONNECTICUT LIFE
INSURANCE COMPANY
By: _______________________________
(Title)
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: _______________________________
(Title)