EXHIBIT 10.1
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES PURCHASED HEREUNDER MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER
APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION
REQUIREMENTS THEREUNDER.
SUPPLEMENTAL STOCK SUBSCRIPTION AGREEMENT
THIS SUPPLEMENTAL STOCK SUBSCRIPTION AGREEMENT (this "Agreement") is
made as of this 15th day of December, 2004, by and among SurgiCare, Inc., a
Delaware corporation ("SurgiCare"), Xxxxxxxx Partners IV, L.P. ("Xxxxxxxx") and
each of the investors listed on Schedule I hereto (the parties listed on
Schedule I are sometimes hereinafter collectively referred to as the "Additional
Subscribers" and individually as an "Additional Subscriber").
WHEREAS, SurgiCare has previously entered into an Amended and Restated
Stock Subscription Agreement dated as of February 9, 2004 with Xxxxxxxx and the
First Amendment to Stock Subscription Agreement dated as of July 16, 2004 with
Xxxxxxxx, a conformed copy of which is attached hereto as Exhibit A and the
Second Amendment and Supplement to Stock Subscription Agreement with Xxxxxxxx
and the parties listed on Schedule I thereto (the "Investors"), a copy of which
is attached hereto as Exhibit B (as so amended and supplemented, the
"Subscription Agreement") pursuant to which SurgiCare agreed to issue and sell
to Xxxxxxxx and the Investors, and Xxxxxxxx and the Investors agreed to purchase
a number of shares of Class B Common (as defined under the Subscription
Agreement) set forth therein (the "Total Subscription Shares") in exchange for
an aggregate consideration of the Cash Purchase Price (as defined in the
Subscription Agreement);
WHEREAS, Xxxxxxxx desires to assign to the Additional Subscribers its
right under the Subscription Agreement to purchase from SurgiCare, for an
aggregate consideration of $1,000,000 (the "Aggregate Purchase Price"), a
portion of the Total Subscription Shares equal to the number of Total
Subscription Shares multiplied by a fraction, the numerator of which is equal to
$1,000,000 and the denominator of which is equal to the Cash Purchase Price (the
"Assigned Shares") and the Additional Subscribers desire to accept such
assignment and purchase from SurgiCare the Assigned Shares subject to the terms
and conditions under the Subscription Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, SurgiCare, Xxxxxxxx and each
Additional Subscriber, severally and not jointly, hereby agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the respective meanings ascribed to them in the Subscription
Agreement.
2. ASSIGNMENT.
(a) Xxxxxxxx hereby assigns its right, and the Additional
Subscribers hereby agree, to purchase the Assigned Shares for the
Aggregate Purchase Price (the "Assignment") pursuant to the terms and
conditions under the Subscription Agreement (as modified by this
Agreement).
(b) SurgiCare hereby consents to the Assignment and the
parties agree that as of the date of this Agreement, Xxxxxxxx'x rights
and obligations under the Subscription Agreement to purchase the
Assigned Shares are terminated. Nothing in this Agreement shall affect
Xxxxxxxx'x rights and obligations under the Subscription Agreement to
purchase the Total Subscription Shares other than the Assigned Shares.
3. SUPPLEMENT TO SUBSCRIPTION AGREEMENT. The Assigned Shares are being
sold to the Additional Subscribers pursuant to the terms of the Subscription
Agreement (as modified by this Agreement). By its execution of this Agreement,
each Additional Subscriber is made a party to the Subscription Agreement and,
except as otherwise expressly provided herein, is deemed to be a Subscriber
under Sections 3, 4, 5.2(a), 5.2(b), 5.2(f), 5.2(p), 7, 9.4, 9.5, 10.2, 10.3 and
10.4 of the Subscription Agreement, the Assigned Shares are deemed (as the
context permits) to be Subscription Securities for all purposes of the
Subscription Agreement, and each Additional Subscriber is entitled to all the
rights and benefits, and makes the representations and warranties set forth in
Section 4, of the Subscription Agreement, and is subject to the obligations
under, the Subscription Agreement. Notwithstanding the foregoing, in no event
shall the Additional Subscribers be entitled to any payment pursuant to Section
9.3.
4. SALE AND PURCHASE OF THE ASSIGNED SHARES. At the Closing, and
subject to the terms and conditions in the Subscription Agreement (as modified
by this Agreement), SurgiCare will issue and sell to each Additional Subscriber
and each Additional Subscriber will purchase from SurgiCare, a portion of the
Assigned Shares equal to the percentage of the total number of Assigned Shares
set forth opposite its name in the column entitled "Percentage of Assigned
Shares" on Schedule I, at the price set forth opposite its name in the column
labeled "Total Purchase Price" on Schedule I.
5. CLOSING, PAYMENT AND DELIVERY. At the Closing, each Additional
Subscriber will pay to SurgiCare, by wire transfer of immediately available
funds, the amount set forth opposite its name in the column labeled "Total
Purchase Price" on Schedule I; and SurgiCare will deliver to each Additional
Subscriber a certificate or certificates registered in the Additional
Subscriber's name (or in such name or names as otherwise set forth on Schedule
I) representing the portion of the Assigned Shares equal to the percentage of
the total number of
Assigned Shares set forth opposite its name in the column entitled "Percentage
of Assigned Shares" on Schedule I.
6. REPRESENTATIONS AND WARRANTIES OF SURGICARE. SurgiCare hereby
represents and warrants that all representations and warranties of SurgiCare
contained in the Subscription Agreement are true and correct as of the date of
this Agreement with the same force and effect as if made at and as of the date
of this Agreement, except those representations and warranties described on
Schedule II hereto (the "Supplemental Disclosure Schedule"), if any.
7. GOVERNING LAW. This Agreement and all claims arising hereunder or in
connection herewith shall be governed by and construed in accordance with the
domestic substantive laws of the State of New York, without giving effect to any
choice or conflict of law provision or rule that would cause the application of
the domestic substantive laws of any other jurisdiction.
8. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which together shall constitute one and the same agreement.
9. NO MODIFICATIONS. Except as amended hereby, the terms and conditions
of the Subscription Agreement shall continue in full force and effect and are
hereby in all respects ratified and confirmed.
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Supplemental Stock Subscription Agrt.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first above written.
SURGICARE, INC.
By: /s/ Xxxxx XxXxxxx
-------------------------------------
Name: Xxxxx XxXxxxx
Title: Chief Executive Officer
XXXXXXXX PARTNERS IV, L.P.
By: Xxxxxxxx Venture Management IV, L.P.,
its general partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
Supplemental Stock Subscription Agrt.
THE ADDITIONAL SUBSCRIBERS:
CROSSROADS CORNERSTONE DIRECT/CO-
INVESTMENT FUND V, L.P.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
CROSSROADS 1999 SERIES DIRECT/CO-
INVESTMENT PORTFOLIO A, L.P.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
Schedule I
ADDITIONAL SUBSCRIBERS
SUBSCRIBERS PERCENTAGE OF TOTAL PURCHASE
ASSIGNED SHARES PRICE
Crossroads Cornerstone Direct/Co-investment Fund V, L.P. 45.7878% $457,878.00
Crossroads 1999 Series Direct/Co-investment Portfolio A, 54.2122% $542,122.00
L.P.
Schedule II
Supplemental Disclosure Schedule
None.
