Exhibit 10(dd)
THIRD AMENDMENT
to
MEDCROSS, INC.
SHAREHOLDERS' AGREEMENT
This Third Amendment (the "Third Amendment") is entered into as of this
31st day of January, 1996, by and among Four M International, Ltd. ("Four M"),
Walnut Capital Corp. ("Walnut") and Windy City, Inc. ("Windy City"), for the
purpose of amending that certain Shareholders' Agreement entered into in
February 1992, as amended by the First Amendment to the Shareholders' Agreement
entered into in January 1995 and the Second Amendment to the Shareholders'
Agreement entered into in November 1995 (as so amended, the "Shareholders'
Agreement").
Capitalized terms used herein but not otherwise defined shall have the
respective meanings attributed to them in the Shareholders' Agreement.
RECITALS:
WHEREAS, the parties hereto are parties to the Shareholders' Agreement and
own an aggregate of 192,500 shares of Class A Variable Rate Cumulative
Convertible Preferred Stock, par value $10.00 per share (the "Class A Preferred
Stock") of Medcross, Inc. ("the Company");
WHEREAS, the shares of Class A Preferred Stock are convertible into an
aggregate of 4,710,919 shares of common stock, par value $.007 per share (the
"Common Stock");
WHEREAS, Walnut owns 25,000 shares of the Class A Preferred Stock
(convertible into 611,807 shares of Common Stock; Windy City owns 7,500 shares
of Class A Preferred Stock (convertible into 183,542 shares of Common Stock);
and Four M owns 160,000 shares of the Class A Preferred Stock (convertible into
3,915,570 shares of Common Stock);
WHEREAS, Canadian Imperial Bank of Commerce and Trust Company (Bahamas)
Limited, as trustee ("CIB") is a party to the Shareholders' Agreement but has
not been made a party hereto and owns 7,500 shares of Class A Preferred Stock
(convertible into 183,542 shares of Common Stock);
WHEREAS, Walnut, Windy City and Four M collectively own in excess of two-
thirds of the shares of Class A Preferred Stock subject to the Shareholders'
Agreement, as contemplated by Section 2 of the Shareholders' Agreement relating
to the permitted disposition of such shares;
WHEREAS, Walnut and Windy City own in excess of two-thirds of the shares of
Class A Preferred Stock owned by the Kanter Group, as contemplated by Subsection
22(c) of the Shareholders' Agreement relating to amendment of such agreement;
WHEREAS, Four M owns all of the shares of Class A Preferred Stock owned by
the Four M Group, as contemplated by Subsection 22(c) of the Shareholders'
Agreement relating to amendment of such agreement;
WHEREAS, Walnut and Windy City have agreed pursuant to the terms of a
certain letter agreement to be executed contemporaneously herewith (the "Letter
Agreement") to sell, assign, transfer and convey all of the right, title and
interest in and to the shares of Class A Preferred Stock respectively owned by
each of Walnut and Windy City;
WHEREAS, Xxxx X. Xxxxxx, as the Kanter Group Representative, has agreed to
obtain the consent of CIB to become a party to the Letter Agreement and to sell,
assign, transfer and convey its shares of Class A Preferred Stock;
WHEREAS, pursuant to the authority set forth in Subsection 22(c) of the
Shareholders' Agreement, it is the desire of Walnut, Windy City and Four M
(having ownership of the requisite amount of shares of Class A Preferred Stock
required to amend the provisions of the Shareholders' Agreement) to amend
Subsection 22(d) of the Shareholders' Agreement to provide for termination
thereof upon consummation of the transactions contemplated by the Letter
Agreement;
WHEREAS, the provisions of the Letter Agreement shall be subject to
amendment and termination of the Shareholders' Agreement as set forth herein;
and
WHEREAS, effectiveness of this Third Amendment shall be subject to
consummation of the transactions contemplated by the Letter Agreement as
hereinafter set forth in Section 2 below.
NOW, THEREFORE, in consideration of the premises and mutual covenants,
conditions and agreements contained herein and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, each intending to be legally bound hereby, agree as follows:
1. Amendment of Subsection 22(d). Pursuant to the authority granted to
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the parties hereto by Subsection 22(c) of the Shareholders' Agreement, the
Shareholders Agreement is hereby amended to add to the list of events which
trigger automatic termination of the Shareholders' Agreement the sale of all of
the shares of Class A Preferred Stock owned by Walnut and Windy City to a person
(or persons) approved by Four M as contemplated by the Letter Agreement, as
follows:
(a) the word "or" appearing on the second to last line of Subsection
22(d) shall be deleted; and
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(b) the period at the end of the last line of Subsection 22(d) shall be
deleted and replaced with a semi-colon which shall be followed by "or (v) the
sale of all of the Shares owned by Walnut and Windy City to a person or persons
approved by Four M."
2. Effectiveness. This Third Amendment shall become effective
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automatically upon consummation of the transactions contemplated by the Letter
Agreement, at which time the Shareholders' Agreement shall terminate pursuant to
the terms hereof and shall be deemed to be of no further force or effect
whatsoever.
3. Condition Precedent. The effectiveness of this Third Amendment to the
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Shareholders' Agreement shall be subject to and specifically conditioned upon
consummation of the transactions contemplated by the Letter Agreement. In the
event that the foregoing condition is not met, this Third Amendment shall be
null and void and of no force or effect whatsoever.
4. Counterparts. This Third Amendment may be executed in counterparts,
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each of which shall be an original, but all of which shall constitute one and
the same agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date first above written.
WALNUT CAPITAL CORP.
By:
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Xxxx X. Xxxxxx, President
WINDY CITY, INC.
By:
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Xxxx X. Xxxxxx, President
FOUR M INTERNATIONAL, LTD.
By:
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Xxxxx Y.L. Toh
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