Exhibit 10.10
AMENDMENT, CONVERSION AND WAIVER AGREEMENT
This AMENDMENT, CONVERSION AND WAIVER AGREEMENT, dated as of March 30,
1998, is made by and among HealthDrive Corporation, a corporation organized
and existing under the laws of the State of Delaware (the "COMPANY"), DCC
International Holdings B.V., a Netherlands corporation ("DCC HOLDINGS"), DCC
Limited, an Isle of Man corporation, and the persons named as "Stockholders"
on the signature pages hereto.
BACKGROUND
WHEREAS, the Company and DCC Limited entered into a Stock Purchase
Agreement, dated as of October 3, 1989 (the "1989 PURCHASE AGREEMENT"),
pursuant to which DCC Limited purchased an aggregate of 2,775 shares of the
Company's Common Stock, $.01 par value per share (the "COMMON STOCK");
WHEREAS, the Company and DCC Limited entered into a Stock Purchase
Agreement, dated as of May 8, 1992, as amended by Amendment No. 1 thereto,
dated as of May 24, 1995 (as so amended, the "1992 PURCHASE AGREEMENT"),
pursuant to which DCC Limited purchased an aggregate of 571,428 shares of the
Company's Class A Preferred Stock. $.01 par value per share (the "CLASS A
STOCK"), and the 1989 Purchase Agreement was terminated;
WHEREAS the Company and DCC Holdings entered into a Stock Purchase
Agreement, dated as of April 28, 1994, as amended by Amendment No. 1 thereto,
dated as of May 24, 1995 (as so amended, the "1994 PURCHASE AGREEMENT"),
pursuant to which DCC Holdings purchased an aggregate of 181,818 shares of
the Company's Class B Preferred Stock. $.01 par value per share (the "CLASS B
STOCK"), and certain of the provisions of the 1992 Purchase Agreement were
terminated;
WHEREAS, in connection with the execution and delivery of the 1994
Purchase Agreement and the sale of the Class B Stock, DCC Limited, DCC
Holdings and the "Stockholders" named therein entered into an Amended and
Restated Stockholders Agreement, dated as of April 28, 1994, as amended by
Amendment No. 1 thereto, dated as of May 24, 1995 (as so amended, the
"STOCKHOLDERS AGREEMENT"), amending and restating a Stockholders Agreement,
dated as of May 8, 1992, which amended and restated an earlier Stockholders
Agreement, dated as of October 3, 1989;
WHEREAS, pursuant to an Assignment and Assumption, dated as of August
25, 1995, DCC Limited transferred to DCC Holdings all of its right, title and
interest in the outstanding Class A Stock as well as the rights of DCC
Limited under the 1992 Purchase Agreement;
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WHEREAS, the Company proposes to enter into an Underwriting Agreement with
X.X. Xxxxxxxxxx & Co., Inc. (the "REPRESENTATIVE"), contemplating an initial
public offering of the Common Stock (the "OFFERING");
WHEREAS, the Representative is unwilling to enter into the Underwriting
Agreement unless DCC Holdings and DCC Limited each agree, subject to the
consummation of the Offering, to (i) terminate each of the 1992 Purchase
Agreement, the 1994 Purchase Agreement (other than with respect to registration
rights) and the Stockholders Agreement, (ii) to waive all past instances of
non-compliance by the Company with the terms of the 1992 Purchase Agreement, the
1994 Purchase Agreement and the Stockholders Agreement, and (iii) agree to
convert their outstanding Class A Stock and Class B Stock into Common Stock
concurrent with the closing of the Offering; and
WHEREAS, the execution and delivery of this Amendment, Conversion and
Waiver Agreement by DCC Holdings and DCC Limited is a condition precedent to the
consummation of the Offering;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company, DCC Holdings, DCC
Limited and the persons named on the signature pages hereto hereby agree as
follows:
1. TERMINATION OF 1992 PURCHASE AGREEMENT.
Subject to the closing of the Offering, the Company, DCC Limited and DCC
Holdings each agree that the 1992 Purchase Agreement is hereby terminated in
all respects, such termination to be effective contemporaneous with the
closing of the Offering, with none of the Company, DCC Limited, DCC Holdings
or any of their successors, assigns or transferees having any further rights
or obligations thereunder upon and after the effectiveness of such
termination.
2. AMENDMENT OF 1994 PURCHASE AGREEMENT.
Subject to the closing of the Offering, each of the Company and DCC
Holdings agree that each of the provisions of the 1994 Purchase Agreement
other than the provisions of Section 6 thereof are hereby terminated in all
respects, such termination to be effective contemporaneous with the closing
of the Offering, with none of the Company, DCC Holdings or any of their
successors, assigns or transferees having any further rights or obligations
under any provisions thereof (other than Section 6 thereof) following such
effectiveness. Notwithstanding the
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termination of any other provision of the 1994 Purchase Agreement, the
provisions of Section 6 shall remain in full force and effect following the
closing of the Offering.
3. TERMINATION OF STOCKHOLDERS AGREEMENT.
Subject to the closing of the Offering, the Company, DCC Holding, DCC
Limited and each of the Stockholders hereby agree that the Stockholders
Agreement is hereby terminated in all respects, such termination to be
effective contemporaneous with the closing of the Offering, with none of the
Company, DCC Holdings, DCC Limited, any of the Stockholders or any of their
successors, assigns or transferees having any further rights or obligations
thereunder upon and after the effectiveness of such termination.
4. WAIVER OF REGISTRATION RIGHTS.
Each of DCC Holdings and DCC Limited hereby irrevocably waive, on behalf
of themselves, their respective affiliates and transferees, any rights either
of them or any of their affiliates may have to have any shares of the capital
stock of the Company held by any of them or any of their affiliates or
transferees included in the Offering or any registration statement filed by
the Company with the Securities and Exchange Commission in connection
therewith, whether arising under Section 6.1 of the 1994 Purchase Agreement
or otherwise.
5. AGREEMENT TO CONVERT PREFERRED STOCK.
(a) DCC Holdings, as the holder of all of the 571,428 outstanding
shares of the Class A Stock, hereby agrees to convert all of such shares of
Class A Stock into the number of fully-paid and nonassessable shares of
Common Stock determined in accordance with Section 5A of Article 4A of the
Company's Certificate of Incorporation, as amended, effective upon the
closing of the Offering, and hereby tenders the Company's Class A Convertible
Preferred Stock certificate No. [2], representing all of such shares, for
such conversion. Any certificates representing Common Stock issued by the
Company in exchange for the certificates surrendered pursuant to this Section
5(a) shall be issued in the name of "DCC International Holdings, B.V."
(b) DCC Holdings, as the holder of all of the 181,818 outstanding
shares of the Class B Stock, hereby agrees to convert all of such shares of
Class B Stock into the number of fully-paid and nonassessable shares of
Common Stock determined in accordance with Section 5A of Article 4A of the
Company's Certificate of Incorporation, as amended, effective upon the
closing of the Offering, and hereby
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tenders the Company's Class B Convertible Preferred Stock certificate No. 1,
representing all of such shares, for such conversion. Any certificates
representing Common Stock issued by the Company in exchange for the
certificates surrendered pursuant to this Section 5(b) shall be issued in the
name of "DCC International Holdings B.V."
(c) Notwithstanding the foregoing, nothing in this Section 5 shall be
deemed to modify or amend the Company's right and obligation to consummate
the automatic conversion of the outstanding Class A Stock and Class B Stock
upon the closing of certain underwritten public offerings of Common Stock in
accordance with Section 5O of Article 4A of the Company's Certificate of
Incorporation.
6. WAIVER OF NON-COMPLIANCE AND COVENANT NOT TO XXX.
(a) In order to induce the Company and the Representative to consummate
the Offering, and in acknowledgment of the substantial value that each of
them will receive in connection therewith, each of DCC Holdings and DCC
Limited, respectively, hereby, for themselves and each of their successors,
assigns and transferees, hereby agree, contingent upon the closing of the
Offering, to remise, release, and forever discharge (the "RELEASE"), the
Company and each of the Stockholders, and their respective directors,
officers, employees, principals, shareholders, successors, assigns and
transferees (the "RELEASED PARTIES"), of and from any and all debts, demands,
actions, causes of action, suits, accounts, covenants, contracts, agreements,
damages, and any and all claims, demands, liabilities and obligations
whatsoever, of every name and nature, known and unknown, matured and
unmatured, liquidated or unliquidated, fixed or contingent, both in law and
in equity, under the laws of any jurisdiction, which DCC Holdings or DCC
Limited, or any of their successors, assigns and transferees now have, may
have had, or may in the future have, arising out of any failure by any of the
Released Parties to comply with any of the warranties or covenants set forth
in any of the 1989 Purchase Agreement, the 1992 Purchase Agreement, the 1994
Purchase Agreement or the Stockholders Agreement, PROVIDED, HOWEVER, that
nothing in the Release is intended to remise, release or discharge the
Company of (i) any of its obligations under Section 6 of the 1994 Purchase
Agreement, or (ii) any of its obligations under Section 4.22 of the 1994
Agreement to pay to DCC Holdings an annual business development fee for
periods ending on or prior to the closing date of the Offering, but only to
the extent that such payment obligations have accrued and are payable, but
have not been paid, on such date.
(b) In order to induce the Company and the Representative to undertake
the Offering, each of DCC Holdings and DCC Limited, on behalf of itself and
its successors, assigns and transferees, hereby agrees, contingent upon the
closing of the Offering, that it and its successors, assigns and transferees
will not bring or institute
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any action, suit or proceeding and will not implead, join, seek contribution
or indemnification from or otherwise involve as a party any of the Released
Parties in any action, suit, or proceeding in violation of Section 6, which
has been, was or could ever be brought by him, his successors, assigns or
transferees against any of the Released Parties with respect to the Release,
either in law or in equity.
7. CONDITION PRECEDENT.
Notwithstanding anything to the contrary in this Agreement, all of the
obligations of DCC Holdings and DCC Limited hereunder shall be subject to and
conditional upon (i) the closing of the Offering occuring on or before
October 31, 1998, and (ii) the Offering being consummated at a price to
public (prior to the deduction of any underwriting commissions or offering
expenses) of not less than $5.00 per share of Common Stock sold in the
Offering. In the event that either or both of these conditions is not
satisfied, this Agreement and the obligations of the parties hereunder shall
be deemed null and void as of the date hereof.
8. GOVERNING LAW.
This Amendment, Conversion and Waiver Agreement and the rights and
obligations of the parties hereunder shall be deemed executed as a contract
under seal in the Commonwealth of Massachusetts, and shall be construed in
accordance with and governed by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have cause this Amendment,
Conversion and Waiver Agreement to be duly executed as an instrument under
seal as of the date first above written.
HEALTHDRIVE CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Title: Chief Executive Officer
DCC HOLDINGS INTERNATIONAL, B.V.
By: /s/ Xxxxxx X'Xxxxx
--------------------------------
"A" Managing Director
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By: ING TRUST (Nederland) B.V.
By: [unintelligible]
---------------------------
"B" Managing Director
DCC LIMITED
By: [unintelligible] /s/ X.X. Xxxxx
---------------------------------
Title: Director Alternate Director
to X. Xxxxx
STOCKHOLDERS:
/s/ Xxxxxx Xxxxxxx, M.D.
-----------------------------------
Xxxxxx Xxxxxxx, M.D.
/s/ Xxxx X. Xxxxx, D.M.D.
-----------------------------------
Xxxx X. Xxxxx, D.M.D.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
