Exhibit 4(p)
INTEGRATED MEDICAL RESOURCES, INC.
NOTE AND WARRANT AGREEMENT
This Agreement is made effective as of June 30, 1998, among Integrated
Medical Resources, Inc., a Kansas corporation (the "Company"), with its
principal office at 00000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxx 00000 and the
Investors set forth on the signature page hereto (collectively, the
"Investors").
1. Sale and Issuance of the Notes and the Warrants.
1.1 Loan and Issuance of Notes. The Investors severally agree,
on the terms of and subject to the conditions specified in this Agreement, to
lend to the Company the sum set forth on the signature pages of this Agreement.
Each Investor's loan shall be evidenced by a convertible subordinated promissory
note (the "Note") dated as of the Closing Date in the form attached hereto as
Exhibit A. These Notes, together with the other notes issued pursuant to this
Agreement, are collectively referred to as the "Notes." The securities into
which the Notes are convertible are referred to as the "Conversion Stock."
1.2 Warrants. Upon execution hereof, the Company shall issue
to each Investor a Stock Purchase Warrant (the "Warrant") dated as of the
Closing Date in the form attached hereto as Exhibit B to purchase a number of
the class and/or series of shares of the Company's capital stock issued in the
Next Financing (as defined in the Note). The capital stock expected to be issued
in the Next Financing is Common Stock of the Company. These Warrants, together
with the other stock purchase warrants issued pursuant to this Agreement, are
collectively referred to as the "Warrants." The securities for which the
Warrants are exercisable are referred to as the "Exercise Stock." The Notes and
the Conversion Stock, and the Warrants and the Exercise Stock, are collectively
referred to as the "Securities."
1.3 Delivery. Upon execution hereof, the Company shall deliver
to each Investor a Note in the principal amount set forth on the signature pages
hereof and a Warrant to purchase shares of the Company's capital stock. The
Investor shall deliver the amount of such Investor's loan as set forth on the
signature pages hereof.
2. The Company's Representations and Warranties.
The Company hereby represents and warrants to the Investors as
follows:
2.1 Organization and Standing. The Company is a corporation
duly organized and validly existing under, and by virtue of, the laws of Kansas
and is in good standing under such laws. The Company has the requisite corporate
power to own and operate its properties and assets, and to carry on its business
as presently conducted. The Company is qualified to do business as a foreign
corporation in each jurisdiction in which the failure to be so qualified would
have a materially adverse impact on the business or financial condition of the
Company taken as a whole.
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2.2 Corporate Power. The Company will have at the Closing Date
all requisite legal and corporate power to execute and deliver this Agreement,
to sell and issue the Notes and the Warrants hereunder, to issue the Warrant
Shares upon exercise of the Warrants, to issue the Conversion Stock issuable
upon conversion of the Notes and the Warrant Shares and to carry out and perform
its obligations under the terms of this Agreement.
2.3 Authorization. All corporate action on the part of the
Company, its directors and shareholders necessary for the sale and issuance of
the Notes and Warrants and the performance of the Company's obligations under
this Agreement, the Notes and the Warrants will be taken prior to the Closing.
This Agreement, each Investor's Note and each Investor's Warrant are valid,
binding and enforceable obligations of the Company, subject to applicable
bankruptcy, insolvency, reorganization or similar laws relating to or affecting
the enforcement of creditor's rights and to the availability of the remedy of
specific performance.
3. Representations, Warranties of the Investors. Each Investor, for
that Investor alone, represents and warrants to the Company upon the acquisition
of the Note and the Warrant and upon conversion of the Note and upon exercise of
the Warrant as follows:
3.1 Binding Obligation. Each of this Agreement, the Note and
the Warrant issued to the Investor is a valid, binding and enforceable
obligation of the Investor, subject to applicable bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditor's rights and to the availability of the remedy of specific performance.
3.2 Investment Experience. The Investor is either an
accredited investor within the meaning of Regulation D prescribed by the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"), or (by virtue of the Investor's experience in evaluating
and investing in private placement transactions of securities in companies
similar to the Company) the Investor is capable of evaluating the merits and
risks of the Investor's investment in the Company and has the capacity to
protect the Investor's own interests.
3.3 Investment Intent. The Investor is acquiring the
Securities for investment for the Investor's own account and not with a view to,
or for resale in connection with, any distribution thereof. The Investor
understands that the Securities have not been registered under the Act by reason
of a specific exemption from the registration provisions of the Act that depends
upon, among other things, the bona fide nature of the investment intent as
expressed herein.
3.4 Rule 144. The Investor acknowledges that the Securities
must be held indefinitely unless subsequently registered under the Act, or
unless an exemption from such registration is available. The Investor is aware
of the provisions of Rules 144 and 144A promulgated under the Act that permit
limited resale of securities purchased in a private placement subject to the
satisfaction of certain conditions.
3.5 Discussions with Management. The Investor has had an
opportunity to discuss the Company's business, management, and financial affairs
with the Company's management and to review the Company's facilities.
4. Registration Rights.
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4.1 Grant of Rights. The Company hereby grants to the
Investors, with respect to the "Registrable Securities" (as defined below) the
Registration Rights set forth in the Company's Investors Rights Agreement
entered into in connection with the Company's December 1995 financing (as the
same may be have been amended to date). Each Investor hereby agrees to be bound
by and subject to the Investors Rights Agreement. For purposes hereof,
Registrable Securities shall mean the Common Stock issued or issuable upon (i)
conversion of the Notes and (ii) exercise of the Warrants.
4.2 Acceptance by Investor. Each Investor accepts the grant of
registration rights in the Restated Investors Rights Agreement and hereby agrees
to be bound by and subject to the aforementioned sections of the Restated
Investors Rights Agreement.
5. Cancellation of Call. The Investors, pursuant to that certain Letter
Agreement dated June 9, 1998 (the "Letter Agreement"), have granted to the
Company the right to require the Investors, (a "Call") at the Company's option,
to exercise certain existing warrants and options to purchase shares of the
Company's common stock held by the Investors. To the extent of the loan made by
an Investor pursuant hereto, the Company's right to Call pursuant to the Letter
Agreement shall terminate. For example, after all of the loans are made, based
upon the amounts described on Exhibit C hereto, Institutional Venture Partners
VI Limited Partnership and its affiliates, would have an aggregate obligation of
$16,068.45 and Xxxxxxx Healthcare II L.P. would have an obligation of
$87,049.85. The Investors acknowledge that the warrants and options subject to
the Letter Agreement are as set forth on Exhibit C hereto.
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6. Miscellaneous.
6.1 Waivers and Amendments. With the written consent of the
record holders of more than 50% of the principal amount of Notes then
outstanding, the obligations of the Company and the rights of the holders of the
Securities under this Agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such waiver or supplemental agreement shall reduce
the aforesaid percentage of the principal amount of Notes the holders of which
are required to consent to any waiver or supplemental agreement. Upon the
effectuation of each such waiver, consent, agreement, amendment or modification
the Company shall promptly give written notice thereof to the record holders of
the Securities who have not previously consented thereto in writing. Neither
this Agreement nor any provisions hereof may be changed, waived, discharged or
terminated orally, but only by a signed statement in writing.
6.2 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Kansas as such laws are applied to
agreements between Kansas residents entered into and to be performed entirely
within Kansas.
6.3 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Investor and
the execution hereof.
6.4 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
6.5 Entire Agreement. This Agreement (including the exhibits
attached hereto) and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and thereof.
6.6 Notices, etc. All notices and other communications
required or permitted hereunder shall be effective upon receipt and shall be in
writing and may be delivered in person, by telecopy, electronic mail, overnight
delivery service or U.S. mail, in which event it may be mailed by first-class,
certified or registered, postage prepaid, addressed (a) if to the Investor, at
the Investor's address set forth on the signature page of this Agreement, or at
such other address as the Investor shall have furnished the Company in writing,
or, until any such holder so furnishes an address to the Company, then to and at
the address of the last holder of such Securities who has so furnished an
address to the Company, or (b) if the Company, at its address set forth at the
beginning of this Agreement, or at such other address as the Company shall have
furnished to the Investor and each such other holder in writing.
6.7 Separability of Agreements; Severability of this
Agreement. If any provision of this Agreement shall be judicially determined to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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6.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Note and Warrant
Agreement to be duly executed and delivered as of the day and year first written
above.
THE COMPANY: INTEGRATED MEDICAL RESOURCES, INC.
By: /s/ E. Xxxxxxx Xxxxxxxxx
Name: E. Xxxxxxx Xxxxxxxxx
Title: Chairman and CEO
THE INVESTORS:
INSTITUTIONAL VENTURE PARTNERS VI LIMITED PARTNERSHIP
By Institutional Venture Management VI, its General Partner
By:
Name: Xxxxxx X. Xxxxxxx,
Title: General Partner
Amount of Loan: $ 470,000.00
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IVP FOUNDERS FUND I
By Institutional Venture Management VI, its General Partner
By:
Name: Xxxxxx X. Xxxxxxx,
Title: General Partner
Amount of Loan: $ 20,000.00
INSTITUTIONAL VENTURE MANAGEMENT VI
By:
Name: Xxxxxx X. Xxxxxxx,
Title: General Partner
Amount of Loan: $ 10,000.00
0000 Xxxx Xxxx Xxxx, Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
XXXXXXX HEALTHCARE II L.P.
By FHM II LLC, its General Partner
By Xxxxxxx Management LLC, its Managing Member
By:
Name: Xxxx X. Xxxxxxx
Title: Member
Amount of Loan: $ 300,000.00
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
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