AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment") is made and
entered into this 30th day of September, 1996, by and between NuMED Home
Health Care, Inc., a Nevada corporation ("NuMED" or the "Company") and
Xxxxx X. Xxxxxx ("Executive") currently holding the position of Chief
Executive Officer.
WHEREAS, NuMED and Executive entered into an Employment Agreement
("Agreement") dated September 1, 1995, which Agreement remains in full
force and effect; and
WHEREAS, NuMED and Executive believe that it is in the best interest
of NuMED to Amend the Agreement in order to eliminate certain provisions
that might be deemed contrary to the Company's present interest; and
WHEREAS, Executive is willing to eliminate the provision in question
in order to enhance the Company's long-term marketability;
NOW THEREFORE, in consideration of the terms and conditions set forth
in this Amendment, the parties agree as follows:
1. Section 7.8 of the Agreement is hereby deleted from the
Agreement and its terms and conditions are null and void.
2. The Executive acknowledges that NuMED owes no obligation to
Executive pursuant to Section 7.8 of the Agreement during the
time such provision was in effect.
3. In consideration for eliminating Section 7.8 and the obligations
imposed thereby, NuMED hereby awards to Executive Five Hundred
and Forty Thousand (540,000) warrants for the Company's Common
Stock on the following terms:
a. the warrant price is Two Dollars and
Seventy-Five Cents ($2.75) per share;
b. the warrants may be exercised at any time
during the term of the Agreement or any
extension or renewal of the Agreement; and,
c. any warrant outstanding and unexercised when
the term of the Employment Agreement, or any
extension thereof, concludes, is forfeited
and the executive has no rights thereto.
4. This Amendment encompasses the entire Amendment of the Agreement
by the parties to the Agreement and is the writing called for in
Section 11.1 of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed the day and year first above-written.
EXECUTIVE NuMED HOME HEALTH CARE, INC.
/s/ Xxxxx X. Xxxxxx By:/s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxx
Date: 9/30/96 Date: 9/30/96
No. _______________ 540,000 Common Shares
COMMON STOCK PURCHASE WARRANT
NuMED HOME HEALTH CARE, INC.
Incorporated Under the Laws of the State of Nevada
This certifies that, for value received, Xxxxx X. Xxxxxx, the
registered holder hereof or registered assigns (the "Holder"), is entitled
to purchase from NuMED Home Health Care, Inc., a Nevada corporation (the
"Company"), at any time after October 1, 1996 and prior to the termination
of the Employment Agreement dated September 1, 1995 by and between the
Holder and the Company, as amended by the First Amendment to the
Employment Contract dated October 1, 1996 (collectively referred herein at
the "Employment Agreement"), at the purchase price of $2.75 per share (the
"Warrant Price") the number of shares of Common Stock of the Company (the
"Common Stock"), which is equal to the number of Warrants set forth above.
The number of shares purchasable upon exercise of this Warrant and the
Warrant Price per share shall be subject to adjustment from time to time
as set forth below. Warrants which are unexercised and outstanding on the
expiration date or termination date of the Employment Agreement shall
expire and be cancelled and retired. This Warrant does not entitle any
Holder hereof to any of the rights of a shareholder of the Company.
1. Exercise. This Warrant may be exercised in whole or in part by
presentation of this Warrant with the Purchase Form attached to this
Warrant duly executed and simultaneous payment of the Warrant Price
(subject to adjustment) at the principal office of the Company. Payment of
such price shall be made at the option of the Holder hereof in cash or by
check or wire transfer, or any combination thereof. Upon any partial
exercise of this Warrant, there shall be countersigned and issued to the
Holder hereof a new Warrant in respect of the shares of Common Stock as to
which this Warrant shall not have been exercised. No fractional shares
will be issued upon the exercise of this Warrant, but the Company shall
pay the cash value of any fraction upon the exercise of one or more
Warrants.
2. Reservation of Warrant Shares. There have been reserved, and the
Company shall at all times keep reserved, out of its authorized Common
Stock, a number of shares of Common Stock sufficient to provide for the
exercise of the rights of purchase represented by the outstanding
Warrants. The Transfer Agent for the Common Stock and every subsequent
transfer agent for any shares of the Company's capital stock issuable upon
the exercise of any of the rights of purchase aforesaid will be
irrevocably authorized and directed at all times to reserve such number of
authorized shares as shall be requisite for such purpose.
3. Adjustment of Warrant Price and Number of Warrant Shares. The
number and kind of securities purchasable upon the exercise of each
Warrant and the Warrant Price shall be subject to adjustment from time to
time upon the happening of certain events, as hereinafter defined.
3.1 Mechanical Adjustments. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price
shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares
of Common Stock or make a distribution in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock,
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities
of the Company, the number of Warrant Shares purchasable upon
exercise of each Warrant immediately prior thereto shall be
adjusted so that the Holder of each Warrant shall be entitled to
receive the kind and number of Warrant Shares or other
securities of the Company which the Holder would have owned or
have been entitled to receive after the happening of any of the
events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record
date with respect thereto. An adjustment made pursuant to this
paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if
any, for such event.
(b) In case the Company shall issue rights, options or
warrants to all holders of its outstanding Common Stock, without
any charge to such holders, entitling them (for a period
expiring within thirty (30) days after the record date mentioned
below) to subscribe for or purchase shares of Common Stock at a
price per share which is lower at the record date mentioned
below than the then current market price per share of Common
Stock (as defined in paragraph (d) below), the number of Warrant
Shares thereafter purchasable upon the exercise of each Warrant
shall be determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of each Warrant by a
fraction, of which the numerator shall be (i) the number of
shares of Common Stock outstanding on the date of issuance of
such rights, options or warrants plus the number of additional
shares of Common Stock offered for subscription or purchase, and
of which the denominator shall be (ii) the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of shares which the
aggregate offering price of the total number of shares of Common
Stock so offered would purchase at the then current market price
per share of Common Stock (as defined in paragraph (d) below).
Such adjustment shall be made whenever such rights, options or
warrants are issued, and shall become effective retroactively
immediately after the record date for the determination of
stockholders entitled to receive such rights, options or
warrants.
(c) In case the Company shall distribute to all holders of
its shares of Common Stock evidences of its indebtedness or
assets (excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) above) or rights,
options or warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of
Common Stock (excluding those referred to in paragraph (1)
above), then in each case the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant shall
be determined by multiplying the number of Warrant Shares
theretofore purchasable upon the exercise of each Warrant, by a
fraction, of which the numerator shall be (i) the then current
market price per share of Common Stock (as defined in paragraph
(d) below) on the date of such distribution, and of which the
denominator shall be (ii) the then current market price per
share of Common Stock, less the then fair value (as determined
by the Board of Directors of the Company, whose determination
shall be conclusive) of the portion of the assets or evidences
of indebtedness so distributed or of such subscription rights,
options or warrants, or of such convertible or exchangeable
securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made,
and shall become effective on the date of distribution
retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
(d) For the purpose of any computation under this Section,
the current or closing market price per share of Common Stock at
any date shall be the average of the daily closing prices for
fifteen (15) consecutive trading days commencing twenty (20)
trading days before the date of such computation. The closing
price for each day shall be the last reported sale price or, in
case no such reported sale takes place on such day, the average
of the closing bid and asked prices for such day, in either case
on the principal national securities exchange on which the
shares are listed or admitted to trading, or if they are not
listed or admitted to trading on any national securities
exchange, but are traded in the over-the-counter market, the
average of the representative closing bid and asked quotations
for the Common Stock on NASDAQ or any comparable system, or if
the Common Stock is not listed on NASDAQ or a comparable system,
the average of the closing bid and asked prices as furnished by
two members of the National Association of Securities Dealers,
Inc. selected from time to time by the Company for that purpose.
(e) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least 1% in the
number of Warrant Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason
of this paragraph (e) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest one-
thousandth of a share.
(f) Whenever the number of Warrant Shares purchasable upon
the exercise of each Warrant is adjusted, as herein provided,
the Warrant Price payable upon exercise of each Warrant shall be
adjusted by multiplying such Warrant Price immediately prior to
such adjustment by a fraction, of which the numerator shall be
the number of Warrant Shares purchasable upon the exercise of
each Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of Warrant Shares so
purchasable immediately thereafter.
(g) In case the Company shall sell and issue shares of
Common Stock, or rights, options, warrants or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock (excluding (i) shares, rights,
options, warrants or convertible or exchangeable securities
issued in any of the transactions described in paragraphs (a),
(b) or (c) of this Section, (ii) shares issuable upon exercise
of stock options granted or to be granted to employees or
directors of the Company, provided that the number of shares so
excluded shall not exceed in the aggregate 200,000 shares,
subject to adjustment under the terms of such stock options,
(iii) the Warrant Shares, (iv) warrants to acquire shares of the
Common Stock issued to any underwriter of the Company's common
stock offered in a public offering; or (v) shares issued to
shareholders of any corporation which is acquired by, merged
into or becomes part of the Company or a subsidiary of the
Company in an arm's length transaction between the Company and
one or more unaffiliated third parties in proportion to their
stock holdings of any such corporation immediately prior to such
merger, upon such merger), at a price per share of Common Stock
(determined, in the case of such rights, options, warrants or
convertible or exchangeable securities, by dividing (i) the
total amount received or receivable by the Company in
consideration of the sale and issuance of such rights, options,
warrants or convertible or exchangeable securities, plus the
total consideration payable to the Company upon exercise or
conversion or exchange thereof, by (ii) the total number of
shares of Common Stock covered by such rights, options, warrants
or convertible or exchangeable securities) lower than the then
current market price per share of the Common Stock (as defined
in paragraph (d) above), then the Warrant Price shall be reduced
to a price (calculated to the nearest cent) determined by
multiplying the Warrant Price in effect immediately prior
thereto by a fraction, the numerator of which shall be (i) an
amount equal to the sum of (A) the number of shares of Common
Stock outstanding immediately prior to such sale and issuance
plus (B) the number of shares of Common Stock which the
aggregate consideration received (determined as provided below)
for such sale or issuance would purchase at such current market
value per share, and the denominator of which shall be (ii) the
total number of shares of Common Stock outstanding immediately
after such sale and issuance. Such adjustment shall be made
successively whenever such an issuance is made. The number of
Warrant Shares purchasable upon the exercise of each Warrant
shall be that number determined by multiplying the number of
Warrant Shares issuable upon exercise immediately prior to such
adjustment by a fraction, of which the numerator is the Warrant
Price in effect immediately prior to such adjustment and the
denominator is the Warrant Price as so adjusted. For the
purposes of such adjustments, the shares of Common Stock which
the holder of any such rights, options, warrants, or convertible
or exchangeable securities shall be entitled to subscribe for or
purchase shall be deemed to be issued and outstanding as of the
date of such sale and issuance and the consideration received by
the Company therefor shall be deemed to be the consideration
received by the Company for such rights, options, warrants or
convertible or exchangeable securities, plus the consideration
or premiums stated in such rights, options, warrants or
convertible or exchangeable securities to be paid for the shares
of Common Stock covered thereby. In case the Company shall sell
and issue shares of Common Stock or rights, options, warrants or
convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock, for a
consideration consisting, in whole or in part, of property other
than cash or its equivalent, then in determining the "price per
share of Common Stock" and the "consideration received by the
Company" for purposes of the first sentence of this paragraph
(g), the Board of Directors shall determine, in its discretion,
the fair value of said property, and such determinations, if
made in good faith, shall be binding upon all Holders.
(h) For the purpose of this subsection 3.1, the term
"shares of Common Stock" shall mean (i) the class of stock
designated as the Common Stock of the Company at the date of
this Agreement, or (ii) any other class of stock resulting from
successive changes or reclassification of such shares consisting
solely of changes in par value, or from par value to no par
value, or from no par value to par value. In the event that at
any time, as a result of an adjustment made pursuant to
paragraph (a) above, the Holders shall become entitled to
purchase any shares of the Company other than shares of Common
Stock, thereafter the number of such other shares so purchasable
upon exercise of each Warrant and the Warrant Price of such
shares shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Warrant Shares contained in
paragraphs (a) through (g), inclusive, above.
(i) Upon the expiration of any rights, options, warrants
or conversion or exchange privileges, if any thereof shall not
have been exercised, the Warrant Price and the number of shares
of Common Stock purchasable upon the exercise of each Warrant
shall, upon such expiration, be readjusted and shall thereafter
be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case
may be) as if (A) the only shares of Common Stock so issued were
the shares of Common Stock, if any, actually issued or sold upon
the exercise of such rights, options, warrants or conversion or
exchange rights and (B) such shares of Common Stock, if any,
were issued or sold for the consideration actually received by
the Company upon such exercise plus the aggregate consideration,
if any, actually received by the Company for the issuance, sale
or grant of all of such rights, options, warrants or conversion
or exchange rights whether or not exercised, provided, further,
that no such readjustment shall have the effect of increasing
the Warrant Price by an amount in excess of the amount of the
adjustment initially made in respect to the issuance, sale or
grant of such rights, options, warrants or conversion or
exchange rights.
3.2 Voluntary Adjustment by the Company. The Company may at its
option, at any time during the term of the Warrants, reduce the then
current Warrant Price to any amount deemed appropriate by the Board
of Directors of the Company.
3.3 Preservation of Purchase Rights Upon Reclassification,
Consolidation, etc. In case of any consolidation of the Company with
or merger of the Company into another corporation or in case of any
sale or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety, the Company
or such successor or purchasing corporation, as the case may be,
shall execute an agreement that each Holder shall have the right
thereafter upon payment of the Warrant Price in effect immediately
prior to such action to purchase upon exercise of each Warrant the
kind and amount of shares and other securities and property which he
would have owned or have been entitled to receive after the happening
of such consolidation, merger, sale or conveyance had such Warrant
been exercised immediately prior to such action. Such agreement shall
provide for adjustments, which shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section 3. The
provisions of this Section 3.3 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
4. Assignment and Successors. This Warrant shall be assignable by
each of the Company and Holder. All covenants and provisions of this
Agreement by or for the benefit of the Company or the Holder shall bind
and inure to the benefit of their respective successors and assigns
hereunder.
5. Merger or Consolidation of the Company. The Company will not
merge or consolidate with or into any other corporation unless the
corporation resulting from such merger or consolidation (if not the
Company) shall expressly assume the due and punctual performance and
observance of each and every covenant and condition of this Agreement to
be performed and observed by the Company.
6. Applicable Law. This Agreement and each Warrant issued hereunder
shall be governed by and construed in accordance with the laws of the
State of Florida without giving effect to principles of conflict of laws.
7. Entire Agreement/Amendment. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter
hereof and merges and supersedes all prior discussions, agreements and
undertakings of every kind and nature between the parties with respect to
the subject matter of this Agreement. Except as amended by this Amendment,
all other provisions of the Agreement shall remain in full force and
effect. The Agreement or this Amendment shall not be further changed,
modified, cancelled or amended except by writings signed by both parties.
8. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Witness the facsimile seal of the Company and the facsimile
signatures of its duly authorized officers.
/s/ Xxxxx X. Xxxxxx NuMED Home Health Care, Inc.
Xxxxx X. Xxxxxx
By:/s/ Xxxxx X. Xxxxxxxxxx
Chief Executive Officer
Attest:/s/ Xxxxxxxxx Xxxxxxx
NuMED HOME HEALTH CARE, INC.
WARRANT PURCHASE FORM
Number of Warrants exercised ______________________________.
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant for, and to purchase
thereunder, shares of the stock provided for therein, and requests that
certificates for such shares be issued in the name of:
(Please Print Name, Address and Social Security No.)
and, if said number of shares shall not be all the shares purchasable
thereunder, that a new Warrant Certificate for the balance remaining of
the shares purchasable under the within Warrant Certificate be registered
in the name of the undersigned Holder or his Assignee as below indicated
and delivered to the address stated below.
DATED: _________________, 199__
Name of Warrantholder or Assignee:____________________________________
(Please Print)
Address:
Signature:
Signature Guaranteed: NOTE: The above signature must correspond
with the name as written upon the face of
this Warrant Certificate in every
particular, without alteration or
enlargement or any change whatever, unless
this Warrant has been assigned.
