EXHIBIT 10.2
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.
SECOND AMENDMENT AND SUPPLEMENT TO
STOCK SUBSCRIPTION AGREEMENT
THIS SECOND AMENDMENT AND SUPPLEMENT TO 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 (as so amended, the "Subscription Agreement"), a conformed copy of
which is attached hereto as Exhibit A, pursuant to which SurgiCare agreed to
issue and sell to Xxxxxxxx, and Xxxxxxxx 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 $10,000,000 plus the Base Bridge Interest Amount (as defined in
the Subscription Agreement) (the "Xxxxxxxx Purchase Price");
WHEREAS, Xxxxxxxx desires to assign to the Additional Subscribers its
right under the Subscription Agreement to purchase from SurgiCare, for an
aggregate consideration of $3,200,000 (the "Additional Aggregate Purchase
Price"), which is in addition to the Xxxxxxxx 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 the Additional
Aggregate Purchase Price and the denominator of which is equal to the sum of the
Xxxxxxxx Purchase Price plus the Additional Aggregate 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; and
WHEREAS, SurgiCare wishes to accept the Additional Aggregate Purchase
Price, in addition to the Xxxxxxxx Purchase Price, as consideration for the
Total Subscription Shares, and SurgiCare and Xxxxxxxx wish to amend the Stock
Subscription Agreement to reflect the increase in the purchase price of the
Total Subscription Shares;
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. AMENDMENT. Section 1.4 of the Stock Subscription Agreement is hereby
amended and restated in its entirety to read as follows:
"1.4 The term "Cash Purchase Price" means the sum of (x)
$13,200,000 plus (y) the Base Bridge Interest Amount."
3. ASSIGNMENT.
(a) Xxxxxxxx hereby assigns its right, and the Additional
Subscribers hereby agree, to purchase the Assigned Shares for the
Additional 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
and to pay the Xxxxxxxx Purchase Price.
4. 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.
5. 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.
6. 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.
7. 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, if any,
described on Schedule II hereto (the "Supplemental Disclosure Schedule").
8. 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.
9. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which together shall constitute one and the same agreement.
10. 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.
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
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.
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
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.
XXXXXXXX CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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.
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
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.
MBM COMMUNITY, LLC
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
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.
STRANCOINVESTMENTS, LTD.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
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.
XXXXXX AND XXXXXX XXXXX FAMILY
PARTNERSHIP, LTD.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Managing Partner
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.
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
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.
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
----------------------------------------
Xxxxxxx Xxxxxx
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.
SPARROW FUND, LP
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Partner
SCHEDULE I
ADDITIONAL SUBSCRIBERS
SUBSCRIBERS PERCENTAGE OF TOTAL PURCHASE
ASSIGNED SHARES PRICE
Xxxxxxxx Capital Corporation 62.500000% $ 2,000,000.00
Xxxxxx and Xxxxxx Xxxxx Family Partnership, Ltd. 23.437500% $ 750,000.00
Xxxxxxx X. Xxxxx 3.125000% $ 100,000.00
Xxxxxxx Xxxxxx 3.125000% $ 100,000.00
StrancoInvestments, ltd. 2.343750% $ 75,000.00
MBM Community, LLC 2.343750% $ 75,000.00
Xxxxxx Xxxxxx 1.562500% $ 50,000.00
Sparrow Fund, LP 1.562500% $ 50,000.00
SCHEDULE II
SUPPLEMENTAL DISCLOSURE SCHEDULE
NONE.
