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EXHIBIT 2.5
AGREEMENT CONCERNING PREPAYMENT AND
AGENCY AGREEMENT
THIS AGREEMENT CONCERNING PREPAYMENT AND AGENCY AGREEMENT (this
"Agreement") is made and entered into as of the 15th day of November, 1996, by
and among HEALTHDYNE INFORMATION ENTERPRISES, INC. ("HIE"), a Georgia
corporation; Xxxxx Xxxxx, a resident of Texas ("Xxxxx"); Xxxxxx Xxxxxxx, a
resident of Texas ("Xxxxxxx"); Xxxxx Xxxxxx, a resident of Texas ("Xxxxxx");
Xxxxx Xxxxxxx, a resident of Colorado ("Xxxxxxx"); Xxxxx Xxxxxx, a resident of
Texas ("Fraser"); JMS Charitable Trust; JMS Inheritance Trust; ESS Charitable
Trust; ESS Inheritance Trust; MLS Charitable Trust; MLS Inheritance Trust; and
CBS Charitable Trust (collectively, the "Trusts"; Scott, Schwend, Voigts,
Streepy, Fraser and the Trusts may be hereinafter collectively referred to as
the "Shareholders"), and Xxxxx, in his separate capacity as agent for the
Shareholders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Matria Healthcare, Inc., a Delaware corporation and successor
by merger to Healthdyne Inc., a Georgia corporation ("Matria"), HIE, Healthcare
Communications, Inc., a Texas corporation ("HCI"), the Shareholders and certain
other shareholders of HCI entered into that certain Settlement Agreement dated
as of December 31, 1995 (the "Settlement Agreement"); and
WHEREAS, pursuant to Section 4 of the Settlement Agreement, Xxxxx was
appointed agent for the Shareholders for the purposes set forth in the
Settlement Agreement; and
WHEREAS, in connection with the Settlement Agreement, HIE executed that
certain Non-Negotiable Convertible Promissory Note dated as of December 31, 1995
(the "Original Note") and payable to the Agent in the original principal amount
of $5,061,824.82; and
WHEREAS, Scott, Schwend and Xxxxxxx have requested that HIE prepay a
portion of the indebtedness owing to each of them under the Original Note; and
WHEREAS, as a condition precedent to such prepayment, HIE is requiring
that the Agent and the Shareholders enter into this Agreement;
NOW, THEREFORE, for and in consideration of the premises, the terms and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINED TERMS. Defined terms used herein, as indicated by the
initial capitalization thereof, shall have the same respective meanings ascribed
to such terms in the Settlement Agreement unless otherwise specifically defined
herein.
2. APPOINTMENT OF XXXXX AS AGENT FOR SHAREHOLDERS. (a) each of the
Shareholders hereby reaffirms his or its prior appointment of the Agent as such
Shareholder's agent for the purposes set forth in the Settlement Agreement, and
hereby further appoints the Agent, and the Agent hereby accepts such
appointment, as such Shareholder's agent for the purpose of accepting any and
all prepayments under the Original Note or any other promissory note issued as a
replacement for, or in substitution of, the Original Note (such Original Note,
or any promissory
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note issued in replacement therefor or in substitution thereof, is hereinafter
referred to as the "Note"). In that connection, and in addition to the powers
and responsibilities described in the Settlement Agreement, each of the
Shareholders hereby expressly authorizes and directs the Agent, from time to
time and at any time following the request of any Shareholder, to accept any
prepayment on the Note, to exchange the Note for a replacement promissory note
that reflects any prepayment by HIE of the indebtedness thereunder owing to such
Shareholder, and to take any and all actions necessary or desirable in
connection therewith or incidental thereto. In acting on behalf of any one or
more of the Shareholders, the Agent shall not require the consent of any other
Shareholder or Shareholders.
(b) Each of the Shareholders and the Agent hereby irrevocably agrees
with HIE that the agency arrangements established pursuant to the Settlement
Agreement and pursuant to this Agreement shall remain in full force and effect
unless and until HIE receives notice, in compliance with Section 18 of the
Settlement Agreement, that such agency relationship has been terminated or
modified. Each of the Shareholders, the Agent and HIE further agrees that any
termination or modification of the agency agreement prior to HIE receives such
notice shall be ineffective unless and until HIE so receives such notice.
3. AGREEMENT TO PREPAY INDEBTEDNESS. With respect to the
indebtedness owing to Scott, Schwend and Xxxxxxx under the Original Note, such
Shareholders, the Agent and HIE hereby agree as follows:
(a) HIE shall pay to the Agent on November 15, 1996 at the Agent's
office in Dallas, Texas or in such other office as the Agent may designate in
writing to HIE:
(i) as partial prepayment of the indebtedness owing to Xxxxx under the
Original Note, Six Hundred Thousand Dollars ($600,000);
(ii) as partial prepayment of the indebtedness owing to Xxxxxxx under
the Original Note, One Hundred Forty Thousand Dollars ($140,000); and
(iii) as partial prepayment of the indebtedness owing to Xxxxxxx under
the Original Note, Sixty Thousand Dollars ($60,000).
(b) The Agent shall deliver to HIE's designated representative the
Original Note, together with a receipt for payment of the prepayments described
in clause (a) above.
(c) HIE shall execute and deliver to the Agent a Non-Negotiable
Amended and Restated Convertible Promissory Note in the form of Exhibit A
attached hereto.
(d) Each of Scott, Schwend and Xxxxxxx hereby acknowledges and agrees
that payment to the Agent of the amounts set forth in clause (a) above shall
constitute a prepayment of the respective principal indebtedness owing to him
under the Original Note, and that immediately following the making of such
payment by HIE, (i) the outstanding principal amount of indebtedness owing to
Xxxxx shall be $2,322,028.32, (ii) the outstanding principal amount of
indebtedness owing to Xxxxxxx, shall be $412,454.17, and (iii) the outstanding
principal amount of indebtedness owing to Xxxxxxx shall be $425,140.67.
4. ACKNOWLEDGMENT AND AGREEMENT OF SHAREHOLDERS AND AGENT. Each of
the Shareholders other than Scott, Schwend and Xxxxxxx hereby acknowledges the
prepayment set forth in Section 3 hereof. As of November , 1996, and after
giving effect to the prepayments to
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each of Scott, Schwend and Xxxxxxx contemplated in Section 3 hereof, the
outstanding principal and accrued interest owing to each of the Shareholders
under the Note is as follows:
Shareholder Outstanding Principal Balance
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Xxxxx $2,322,028.32
Xxxxxxx 412,454.17
Xxxxxx 36,726.05
Xxxxxxx 425,140.67
Fraser 425,693.29
JMS Charitable Trust 55,472.78
JMS Inheritance Trust 168,610.94
ESS Charitable Trust 55,472.78
ESS Inheritance Trust 140,874.55
MLS Charitable Trust 92,418.09
MLS Inheritance Trust 168,610.94
CBS Charitable Trust 32,340.85
Total $4,335,843.43
Each of the Shareholders and the Agent further acknowledges and agrees that HIE
may, at any time and from time to time, prepay all or any portion of the
indebtedness owing to any Shareholder without the consent of any other
Shareholder; provided, however, that the Agent shall have consented to such
prepayment.
5. REFERENCES IN LOAN DOCUMENTS. HIE, the Shareholders and the Agent
hereby agree that, as among themselves, all references in the Settlement
Agreement and the other Note Documents to the Primary Note shall hereafter be
deemed to be references to the Note.
6. LIMITATION OF AGREEMENT. Except as expressly set forth herein,
this Agreement shall not be deemed to waive, amend or modify any term or
condition of the Settlement Agreement, which is hereby ratified and reaffirmed,
and which shall remain in full force and effect without modification except as
herein provided.
7. FURTHER ASSURANCES. Upon the reasonable request of HIE, the Agent
and each Shareholder agrees to take any and all actions, including, without
limitation, the execution of certificates, documents, or instruments, necessary
or appropriate to give effect to the agreements of the Shareholders set forth in
this Agreement.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute the same Agreement. Any signature page of any such
counterpart, or any electronic facsimile thereof, may be attached or appended to
any other counterpart to complete a fully executed counterpart of this
Agreement, and any telecopy or other facsimile transmission of any signature
shall be deemed an original and shall bind such party.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
shall inure to the benefit of, the respective successors and assigns of the
Shareholders, the Agent and HIE.
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10. SECTION REFERENCES. Section titles and references used in this
Agreement shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
11. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Texas.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date first written above.
HEALTHDYNE INFORMATION
ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President - Finance
Chief Financial Officer
/s/ Xxxxx X. Xxxxx
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Xxxxx Xxxxx, as Agent and individually
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
JMS CHARITABLE TRUST
By: /s/ Bern X. Xxxxxxxx
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Trustee
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JMS INHERITANCE TRUST
By: /s/ Bern X. Xxxxxxxx
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Trustee
ESS CHARITABLE TRUST
By: /s/ Bern X. Xxxxxxxx
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Trustee
ESS INHERITANCE TRUST
By: /s/ Bern X. Xxxxxxxx
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Trustee
MLS CHARITABLE TRUST
By: /s/ Bern X. Xxxxxxxx
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Trustee
MLS INHERITANCE TRUST
By: /s/ Bern X. Xxxxxxxx
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Trustee
CBS CHARITABLE TRUST
By: /s/ Bern X. Xxxxxxxx
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Trustee
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