Exhibit 10.68
AMENDMENT NO. 1 TO NOTE AND STOCK PURCHASE AGREEMENT
This is an amendment (this "Amendment") dated September 11, 2003 to
the Note and Stock Purchase Agreement (as hereinafter defined) between Patient
Infosystems, Inc., a Delaware corporation (the "Issuer") and the investors
listed on Schedule A hereto (each sometimes referred to as a "Holder" and
collectively as the "Holders").
RECITALS
A. The Issuer and the Holders are parties to a Note and Stock Purchase Agreement
dated April 10, 2003 (the "Note and Stock Purchase Agreement") under which the
Holders loaned an aggregate of $2.5 million to the Issuer and received 198,128
shares of Series D 9% Cumulative Convertible Preferred Stock of the Issuer.
B. To evidence its obligations under the Note and Stock Purchase Agreement, the
Issuer issued certain promissory notes dated April 10, 2003 to the Investors
(the "Notes")
C. As a condition to the effectiveness of the Note and Stock Purchase Agreement
and to secure its obligations under the Notes and Note and Stock Purchase
Agreement, the Issuer executed and delivered to the Investors and Equity
Dynamics, Inc. ("ED"), as collateral agent for the Investors, a Security
Agreement dated April 10, 2003 (the "Security Agreement") in which it granted to
the Investors and ED a security interest on the property therein described (the
"Collateral") securing the obligations of the Issuer to the Holders under the
Notes and Note and Stock Purchase Agreement.
D. The parties wish to amend the Note and Stock Purchase Agreement on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreement of the parties
contained herein, and intending to be legal bound, the parties hereto agree as
follows:
1. Recitals and Definitions.
The issuer and the Holders acknowledge and agree that the foregoing
recitals are true and correct as of the date of this Amendment. Capitalized
terms used herein and not defined shall have the meanings assigned to them in
the Note and Stock Purchase Agreement as amended by any prior amendments.
2. Amount Due.
The Issuer and the Holders acknowledge and agree that an aggregate of
$2.5 million is outstanding under the loans from the Holders to the Issuer under
the Notes and Note and Stock Purchase Agreement.
3. Amendments to Note and Stock Purchase Agreement.
Subject to the terms and conditions hereof and of the Note and Stock
Purchase Agreement and for the consideration and in the amounts listed on
Schedule 2.01, the Issuer agrees to issue and sell, and each Holder hereby
agrees, severally and not jointly, to purchase the Restated Notes (as defined
below) and the Stock as set forth on Schedule 2.01. All proceeds received by
Issuer from Holders shall be deposited in the Segregated Bank Account and will
only be used by Issuer to fund the loans described in Section 2.02 of the Note
and Stock Purchase Agreement, subject to the exceptions set forth in Section
2.07 of the Note and Stock Purchase Agreement.
4. General.
This Amendment is made pursuant to Section 8.01 of the Note and Stock
Purchase Agreement, and the parties hereto acknowledge that all provisions of
the Note and Stock Purchase Agreement, except as amended hereby, shall remain in
full force and effect.
5. Notes.
In order to evidence and continue the Notes as amended and modified
pursuant to this Amendment, Issuer shall execute and deliver to each Holder a
replacement note in the form attached hereto as Exhibit A (the "Restated
Notes"). The Restated Notes amend, restate, replace and continue (but are not
novations or repayments of ) the Notes. Amounts owing under the Notes shall be
deemed to be evidenced and continued by the Restated Notes. Accrued and unpaid
interest due and owing under the Notes as of the date of execution of this
Amendment shall be due at the time that the first payment of interest under the
Restated Notes is due and payable.
6. Definitions.
Whenever appearing in the Note and Stock Purchase Agreement, any other
Purchase Document, or any other document executed and delivered in connection
herewith or therewith the term "Note and Stock Purchase Agreement" and "Purchase
Agreement" shall be deemed to mean the Note and Stock Purchase Agreement as
amended.
7. Representations and Warranties.
The Issuer represents and warrants to the Holders that: (i) it has the
power, and has taken all necessary action to authorize, execute and deliver this
Amendment and perform its obligations in accordance with the terms hereunder,
(ii) this Amendment and the Note and Stock Purchase Agreement as amended by the
Amendment is the legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with their terms without any offsets,
counterclaims or defenses, (iii) the execution, delivery and performance of this
Amendment by the Issuer will not (a) require any governmental approval or any
other consent or approval; or (b) violate, conflict with, result in a breach of,
constitute a default under any agreement to which it is a party, or result in or
require the creation of any lien upon any of the assets of the Issuer, (iv) no
Event of Default has occurred and is continuing, and (v) the financial
information provided by the Issuer to the Holders in connection with the
Issuer's request that the Holders enter into this Amendment is true and correct
in all material respects.
8. Conditions to Effectiveness.
It shall be a condition to the effectiveness of this Amendment that the
Holders have received the following:
a. This Amendment, duly executed on behalf of the Issuer and the Holders;
b. The Restated Notes, duly executed by the Issuer; and
c. A certificate from the Secretary the Issuer (i) to which is attached a
copy of the Certificate of Incorporation certified by the Secretary of
State of Delaware and a copy of the By-laws of the Issuer, (ii) to
which is attached a resolution of the Board of Directors authorizing
the execution, delivery and performance of this Amendment, and (iii)
setting forth the name and sample signature of the officers of the
Issuer authorized to execute and deliver this Amendment;
9. Integration.
This Amendment together with the Note and Stock Purchase Agreement
constitute the entire agreement and understanding among the parties relating to
the subject matter hereof and thereof and supersede all prior proposals,
negotiations, agreements and understandings relating to such subject matter.
10. Severability.
If any provision of this Amendment shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
enforceability without in any manner affecting the validity or enforceability of
such provision in any other jurisdiction or the remaining provisions of this
Amendment in any other jurisdiction.
11. Confirmation of Security Interest.
By executing this Amendment, the Issuer confirms and acknowledges that
the Collateral (as defined in the Security Agreement) shall continue to secure
Issuer's obligations under the Note and Stock Purchase Agreement (as herein
amended) and the other Purchase Documents (as amended and confirmed hereby).
Issuer confirms its grant of a security interest in the Collateral (as defined
in the Security Agreement) and hereby grants to the Holders a security interest
in such Collateral as collateral for the repayment to the Holders of the
obligations of Issuer as described therein and herein. For all purposes of the
Security Agreement, the term "Secured Obligations" as defined therein shall
include all obligations described therein and the obligations of the Issuer
under the Restated Note(s). All other terms and provisions of the Security
Agreement remain unchanged and the Security Agreement continues in full force
and effect on the date hereof.
12. No Defenses, Off-Sets or Counterclaims.
By executing this Amendment, Issuer confirms and acknowledges that as
of the date of execution hereof, Issuer has no defenses, off-sets or
counterclaims against any of Issuer's obligations to the Holders under the
Purchase Documents, including the Note and Stock Purchase Agreement (as amended
hereby). Issuer hereby acknowledges and agrees that the actual amounts
outstanding on the date of execution hereof are owing the Holders without
defense, offset or counterclaim.
13. Incorporation by Reference.
This Amendment is incorporated by reference into the Note and Stock
Purchase Agreement and the other Purchase Documents. Except as otherwise
provided herein, all of the other provisions of the Note and Stock Purchase
Agreement and the other Purchase Documents are hereby confirmed and ratified and
shall remain in full force and effect as of the date of this Amendment.
14. Governing Law; Successors and Assigns.
This Amendment is governed by the laws of the State of Iowa and is
binding upon the Issuer and the Holders and their respective successors and/or
assigns and/or heirs and executors, as the case may be.
15. Counterparts.
This Amendment may be executed by one or more of the parties on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
Patient Infosystems, Inc.
By: /s/Xxxxx Xxxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxxx
Title: President
Principal Life Insurance Company
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Counsel
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Counsel
/s/Xxxx Xxxxxxxxx
------------------------
Xxxx Xxxxxxxxx, Individually
Xxxxx Fargo Bank Iowa N.A., Trustee of the
Xxx Xxxxxxxxx Inter Vivos Trust
By: /s/Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
Pappajohn Xxxxxxx Xxxx Xxxxxxx PC Profit Sharing
Plan FBO Xxxxxxxx X. Xxxxxxxxx
By: /s/Xxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Trustee
Xxxxxx X. Xxxxxx & Xxxxxxxxx XxXxxx-Xxxxxx Family
Trust, UA dated December 6, 2002
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Trustee
By: /s/Xxxxxxxxx XxXxxx-Xxxxxx
Name: Xxxxxxxxx XxXxxx-Xxxxxx
Title: Trustee
XX Xxxxxx Chase Bank as cottace of the
Xxx Xxxxxxxxx Children's Trust
By: /s/Xxxxx Xxxxxx XxXxxxxx
Name: Xxxxx Xxxxxx XxXxxxxx
Title: Vice President
Schedule A
Holder and Address of Holder
Principal Life Insurance Company
Attention: Xxxxxx Xxxxxx
C/o Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxx Xxxxxxxxx
c/o Equity Dynamics, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, Xxxx 00000
Xxx Xxxxxxxxx Inter Vivos Trust
C/o Equity Dynamics, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, Xxxx 00000
Pappajohn Xxxxxxx Xxxx Xxxxxxx PC Profit Sharing Plan FBO Xxxxxxxx X.
Xxxxxxxxx
c/o Xxxxxxxx Xxxxxxxxx
000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 0000 Xxxxx Xxxx, Xxxx 00000-0000
Xxxxxx X. Xxxxxx and Xxxxxxxxx XxXxxx-Xxxxxx, as Trustees of the Xxxxxx X.
Xxxxxx & Xxxxxxxxx XxXxxx-Xxxxxx Family Trust, UA dated December 6, 2002
(The "Xxxxxx Family Trust")
0000 Xxxxx Xxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxx Xxxxxxxxx Children's Trust
c/o Equity Dynamics, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, Xxxx 00000
Schedule 2.01
Sale and Purchase of Notes and Stock.
Allocation of Notes and Shares of Stock to Holders
--------------------------- -------------- ----------------- -------------- --------------- -------------- ------------
Holder April 2003 September 2003 Restated April 2003 September Aggregate
Note Amount Note Amount Note Amount Series D 2003 Series Series D
Shares D Shares Shares
--------------------------- -------------- ----------------- -------------- --------------- -------------- ------------
Principal Life Insurance
Company $1,500,000.00 $475,000.00 $1,975,000.00 106,989 41,826 148,815
Xxxx Xxxxxxxxx 900,000.00 450,000.00 1,350,000.00 84,007 39,624 123,631
Xxxxxx Family Trust 0.00 50,000.00 50,000.00 - 4,403 4,403
Xxx Xxxxxxxxx Children's
Trust 0.00 25,000.00 25,000.00 - 2,201 2,201
Xxx Xxxxxxxxx Inter Vivos
Trust 50,000.00 0.00 50,000.00 3,566 - 3,566
Pappajohn Xxxxxxx Xxxx
Xxxxxxx PC Profit Sharing
Plan FBO Xxxxxxxx X.
Xxxxxxxxx 50,000.00 0.00 50,000.00 3,566 - 3,566
--------------------------- -------------- ----------------- -------------- --------------- -------------- ------------
Total $2,500,000.00 $1,000,000.00 $3,500,000.00 198,128 88,054 286,182
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