Exhibit 4(k)(ii)
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AGREEMENT REGARDING CERTAIN PROVISIONS OF CONVERTIBLE NOTES
This Agreement Regarding Certain Provisions of Convertible Notes, dated as
of May 5, 1998 (the "Agreement"), is entered into by and among Xxxxxxx
Healthcare II, L.P. ("Xxxxxxx"), Institutional Venture Partners VI Limited
Partnership ("IVP"), Institutional Venture Management VI ("IVM") and IVP
Founders Fund I (IVP-FF) (collectively, Xxxxxxx, IVP, IVM and IVP-FF may be
referred to herein as the "Holders").
WHEREAS, Xxxxxxx holds a convertible note dated May 5, 1998 by Integrated
Medical Resources, Inc. (the "Company") in the principal amount of $257,143.00
(the "Xxxxxxx Note"); and
WHEREAS, IVP holds a convertible note dated May 5, 1998 by the Company in
the principal amount of $322,286.00 (the "IVP Note"); and
WHEREAS, IVP-FF holds a convertible note dated May 5, 1998 by the Company
in the principal amount of $13,714.00 (the "IVP-FF Note"); and
WHEREAS, IVM holds a convertible note dated May 5, 1998 by the Company in
the principal amount of $6,857.00 (the "IVM Note"); and
WHEREAS, in addition to other rights and obligations, the Xxxxxxx Note, the
IVP Note, the IVP-FF Note and the IVM Note (collectively, the "Notes") permit
the holders thereof (i) to convert the outstanding principal balance and/or
accrued and unpaid interest pursuant to such Notes into shares of common stock
of the Company (the "Conversion Right"); and (ii) to exercise certain options
granted pursuant to the Notes (the "Options").
NOW THEREFORE, in consideration of the premises, the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Each Holder shall exercise its Conversion Right immediately following
approval by the stockholders of the Company of the issuance of shares pursuant
to the Notes.
2. No Holder shall exercise any Option unless each other Holder
simultaneously exercises its corresponding Option.
3. The provisions of Section 6.6, 6.7, 6.8 and 12 of each of the Notes
shall survive any conversion or payment of the Notes and shall be binding on the
respective parties thereto.
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4. This Agreement shall be governed in all respects by the laws of the
State of Kansas as such laws are applied to agreements between Kansas residents
entered into and to be performed entirely within Kansas.
5. This Agreement may be amended only pursuant to a written instrument
executed by all parties hereto and consented to in writing by the Company.
6. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
7. If any provision of this Agreement shall be judicially determined to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
8. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which taken together shall be
considered one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
XXXXXXX HEALTHCARE II, L.P.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
President, Xxxxxxx & Company, Inc.
Member, Xxxxxxx Management
Member, FHM II, L.L.C.
General Partner, Xxxxxxx Healthcare II, L.P.
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INSTITUTIONAL VENTURE PARTNERS VI
LIMITED PARTNERSHIP
By: Institutional Venture Management VI,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
General Partner
INSTITUTIONAL VENTURE MANAGEMENT VI
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
General Partner
IVP FOUNDERS FUND I
By: Institutional Venture Management VI,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
General Partner
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Agreed to and Acknowledged
as of the 5th day of May, 1998:
INTEGRATED MEDICAL RESOURCES, INC.
By /s/ E. Xxxxxxx Xxxxxxxxx
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Name: E. Xxxxxxx Xxxxxxxxx
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Title: Chairman & CEO
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