EXHIBIT 10.6
AMENDMENT NO. 1 TO VOTING TRUST AGREEMENT
THIS Amendment No. 1 (this "Amendment"), dated July 25, 2002, to the VOTING
TRUST AGREEMENT (the "Agreement") made the 17th day of December 1999, by and
among Allied Healthcare Group Limited (formerly known as Transworld Holdings
(UK) Limited), a company incorporated in England and Wales with registered
number 3370146 ("UK Parent"), Transworld Healthcare (UK) Limited, a company
incorporated in England and Wales with registered number 3370146 ("TW UK"),
Transworld Healthcare, Inc., a New York corporation, Triumph Partners III, L.P.,
a Delaware limited partnership ("Triumph"), and Xxxxxxx Xxxxx (hereinafter
sometimes referred to, together with his successor in trust, as the "Trustee").
UK Parent and Allied Healthcare International Inc. (f/k/a Transworld Healthcare,
Inc.) ("US Parent") are hereinafter referred to together as the "Initial
Shareholders." US Parent, UK Parent and TW UK are hereinafter referred to
collectively as the "Corporate Group."
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, on December 17, 1999, the parties entered into the Agreement to
provide a mechanism for exercising the voting rights attributable to the
outstanding ordinary shares of TW UK and UK Parent owned by the Initial
Shareholders so as to give effect to the commercial understanding between the
Purchasers (as defined in that certain Securities Purchase Agreement (the
"Purchase Agreement"), dated as of December 17, 1999, as amended, among UK
Parent, TW UK, the Purchasers and US Parent), on the one hand, and the Initial
Shareholders, on the other hand, with respect to the exercise of control over
the business and policies of TW UK and UK Parent and other matters of corporate
governance as between majority and minority shareholders;
WHEREAS, as of the date hereof, US Parent has approved the reorganization
of the Corporate Group, pursuant to which TW UK shall become a wholly-owned
subsidiary of UK Parent, which is and shall remain a wholly-owned subsidiary of
US Parent (the "Reorganization") in accordance with that certain Master
Reorganization Agreement, dated as of April 24, 2002, by and among the Corporate
Group and the Investors named therein (as subsequently amended, the
"Reorganization Agreement"); and
WHEREAS, in connection with the Reorganization, Triumph shall acquire
shares of US Parent Preferred Stock and it is the intention of the parties that
for so long as such Preferred Stock (or any US Parent Common Stock issuable upon
conversion thereof) remains outstanding, Triumph is to be afforded certain
amended voting rights as fully described herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good, valuable and sufficient consideration, the receipt of which
is hereby acknowledged, the parties hereto promise, covenant, undertake and
agree as follows:
1. Definitions. Capitalized terms used in the Agreement and not otherwise
defined shall have the meanings ascribed thereto in Article FIFTH of the
Certificate of Amendment of
the Certificate of Incorporation of Allied Healthcare International Inc. dated
June 26, 2002 (the "Preferred Stock Certificate"), rather than the Purchase
Agreement.
2. Transfer of Securities. Effective hereby, the following shall be
substituted in its entirety for clause (iii) of the second paragraph of Section
3 of the Agreement: Intentionally Omitted.
3. Withdrawal of Shares from Voting Trust.
(a) Effective hereby, the following shall be substituted in its
entirety for paragraph (a) of Section 4 of the Agreement:
"at any time after the fifteenth anniversary of the date hereof,
provided that all obligations of US Parent, UK Parent and TW UK
arising from (i) a conversion of the Series A Preferred Stock, (ii)
the exercise of the Holders' Redemption with respect to the Series A
Preferred Stock, (iii) the Mirror Preferred Stock, (iv) the Mirror
Notes or (v) the Mirror PIK Notes, shall have been duly and fully
satisfied."
(b) Effective hereby, the following shall be substituted in its
entirety for paragraph (b) of Section 4 of the Agreement: Intentionally
Omitted.
4. Rights, Powers and Duties of the Trustee; Obligations of Initial
Shareholders. Effective hereby, the following shall be substituted in its
entirety for paragraph (f) of Section 5 of the Agreement:
"Subject to the requirements of Applicable Law, each of the Initial
Shareholders shall instruct the Trustee to vote their Shares (whether at a
general or extraordinary meeting of shareholders or by consent in lieu of a
meeting of shareholders) and where appropriate to give effect to such
matters, shall convene any necessary shareholders meeting for the purpose
of passing (and, unless pursuant to an amending resolution required for the
purpose of authorizing and giving effect to the Holders' Redemption of
Series A Preferred Stock pursuant to the Preferred Stock Certificate and
Article VIII of the Purchase Agreement, not revoking) such resolutions as
may be required by Applicable Law to approve or authorize any purchase of
securities pursuant to Article VIII of the Purchase Agreement, including
without limitation, any special resolutions required under Sections 165
and/or 171 of the Companies Act 1985."
5. Voting by the Trustee.
(a) Effective hereby, the following shall be substituted in its
entirety for paragraph (a)(iii) of Section 6 of the Agreement:
Intentionally Omitted.
(b) Effective hereby, the following shall be substituted in its
entirety for paragraph (a)(vi) of Section 6 of the Agreement:
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(vi) If a Put Breach shall have occurred and be continuing, the
Trustee (A) shall vote, sell and transfer the Shares strictly in accordance
with the instructions of Triumph without any requirement as to action by
the Board of Directors of UK Parent or TW UK and (B) shall execute and
deliver as the registered holder of the Shares such agreements, documents
or instruments as may be reasonably required by Triumph to carry out the
same consistently with the Purchase Agreement and the TW UK Charter. The
Trustee shall be required to accept as evidence of the occurrence of a Put
Breach and of the instructions of Triumph a letter or notice duly signed by
an authorized representative of Triumph stating that a Put Breach has
occurred and setting forth any other actions to which such instructions
shall apply. The Trustee shall not be allowed or bound to call for further
evidence nor to verify the accuracy of the contents of such letter or
notice nor be responsible for any losses, liabilities, costs, damages,
actions, demand or expenses or for any breach of any of the provisions of
this Agreement that may be occasioned by accepting, acting or relying on
such letter or notice.
If US Parent disputes the determination of Triumph that a Put Breach
has occurred, it shall have the right to take such action as it may
determine, including seeking injunctive relief, instituting an action for
damages or an appropriate judicial declaration. Pending resolution of any
dispute or legal proceeding initiated by US Parent, the Trustee shall be
required to act in accordance with the instructions of Triumph except in
the case that an injunction to the contrary is issued by a court of
competent jurisdiction. Triumph shall respond promptly to any request by US
Parent for a statement of the grounds upon which Triumph based its
determination that a Put Breach has occurred and shall afford US Parent an
opportunity to address Triumph and illustrate any obligations or other
matters relevant to such determination.
(c) Effective hereby, the following shall be substituted in its
entirety for paragraph (a)(vii) of Section 6 of the Agreement:
(vii) If any resolutions are required to be passed by the shareholders
to approve or authorize any purchase of Securities pursuant to Article VIII
of the Purchase Agreement, including, without limitation, any special
resolutions required under Sections 164, 165 and/or 171 of the Companies
Xxx 0000 (whether out of distributable profits or out of the proceeds of
any new issuance of shares or otherwise), then, subject to the requirements
of Applicable Laws, the Trustee shall vote the Shares strictly in
accordance with the instructions of Triumph. The Trustee shall be required
to accept as evidence of the instructions of Triumph a letter or notice
duly signed by an authorized representative of Triumph stating that a
resolution is required and setting forth any other actions to which such
instructions shall apply. The Trustee shall not be allowed or bound to call
for further evidence nor to verify the accuracy of the contents of such
letter or notice nor be responsible for any losses, liabilities, costs,
damages, actions, demand or expenses or for any breach of any of the
provisions of this Agreement that may be occasioned by accepting, acting or
relying on such letter or notice.
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(d) Effective hereby, the following shall be substituted in its
entirety for the definition of "Put Breach" in paragraph (b) of Section 6
the Agreement:
"Put Breach" means, with respect to any of (i) a Holders' Redemption
of Series A Preferred Stock , (ii) a redemption or repayment of Mirror
Preferred Stock or (iii) a redemption or repayment of Mirror Notes and/or
Mirror PIK Notes (each a "Put"), the failure of US Parent, UK Parent and/or
TW UK to fulfill their respective obligations in all material respects in
the manner and at the time provided in the Preferred Stock Certificate, the
charter of UK Parent (including the terms of the Mirror Preferred Stock) or
the Purchase Agreement, provided that a failure by UK Parent so to fulfill
its obligations shall not be deemed to be a Put Breach unless TW UK shall
also have failed to fulfill its obligations on the corresponding Put.
(e) Effective hereby, the following shall be substituted in its
entirety for clause (iv) of paragraph (c) of Section 6 of the Agreement:
"(iv) Up to four additional persons who (except as provided below) are
neither partners, directors, agents, Affiliates, officers or employees of
any of US Parent, Triumph or their Affiliates, nor officers or employees of
UK Parent or TW UK or any of its Subsidiaries (the "Independent
Directors"), who will be nominated with the affirmative vote of a majority
of the directors then in office following the nomination procedure set
forth below; provided, however, that "independent" directors of US Parent
who are neither officers or employees of US Parent, UK Parent or TW UK nor
Affiliates of Hyperion Partners II, L.P., Hyperion TW Fund, L.P., Hyperion
TWH Fund LLC, Hyperion TWH Fund II LLC or Triumph will be eligible to be
nominated as Independent Directors pursuant to this Section 6(c);"
(f) Effective hereby, the following shall be added as clause (v) of
paragraph (c) of Section 6 of the Agreement:
"(v) the chief operating officer of TW UK (the "TW UK Director" and,
also a "Management Director"), provided that the initial TW UK Director
shall be Xxxxx Xxxxx;
(g) Effective hereby, the following shall be substituted in its
entirety for the second subparagraph of paragraph (c) of Section 6 of the
Agreement:
"If at any time, (i) any of Triumph or the registered holders of the
Voting Trust Certificates shall notify the Trustee and the other parties
hereto of its desire to remove, with or without cause (as defined below),
any director of TW UK or UK Parent previously designated by it pursuant to
this Section 6(c), (ii) either Management Director ceases to be employed as
the chief executive officer or the chief operating officer, as the case may
be, of TW UK, or (iii) the directors (other than the director who is
proposed to be removed) then in office unanimously agree to request the
removal of an Independent Director, then the Trustee agrees
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to vote all of the Shares so as to remove such director. If at any time,
any of the Investor Director, the Parent Director or the TW UK Director
ceases to serve on the Board of Directors of TW UK or UK Parent (whether by
reason of death, resignation, removal or otherwise), the party who
designated such director shall be entitled to designate a successor
director to fill the vacancy created thereby on the terms and subject to
the conditions of this Section 6(c) and the Trustee shall vote all of the
Shares so as to elect any such director. If at any time an Independent
Director ceases to serve on the Board of Directors of TW UK or UK Parent
(whether by reason of death, resignation, removal or otherwise), a
successor director shall be designated and elected on the terms and subject
to the conditions provided in this Section 6(c)."
[The remainder of this page is intentionally left blank. Signature
pages follow.]
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AMENDMENT NO. 1 TO VOTING TRUST AGREEMENT
COMPANY SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Voting Trust Agreement as a deed as of the date first above written.
COMPANIES:
Signed as a deed for and on behalf of
TRANSWORLD HEALTHCARE (UK) LIMITED
By:/s/ Xxx Xxxxxx
------------------------------
Name:
Title:
By:/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Secretary
S-1
AMENDMENT NO. 1 TO VOTING TRUST AGREEMENT
UK PARENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Voting Trust Agreement as a deed as of the date first above written.
Signed as a deed for and on
behalf of ALLIED HEALTHCARE
GROUP LIMITED (formerly:
TRANSWORLD HOLDINGS (UK)
LIMITED) acting by its duly
authorized attorney:
By:/s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Member of the Board of Directors
By:/s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Company Secretary
S-2
AMENDMENT NO. 1 TO VOTING TRUST AGREEMENT
TRUSTEE SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Voting Trust Agreement as a deed as of the date first above written.
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
----------------------------------------
Name:
Address: Xxxxxxxx Xxxx, Xxxxxxxx
Xx. Xxxxxxxxxx
Xxxxxx XX00 0XX
XX
Telephone:
------------------------------
In the presence of:
Name:/s/ J.S. Xxxxxx
-----------------------------------
Address: 00 Xxxx Xxxxx, Xxxxxxx
X. Xxxxxx, XX0X 0XX
XX
Occupation: Secretary
S-3
AMENDMENT NO. 1 TO VOTING TRUST AGREEMENT
TRIUMPH SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Voting Trust Agreement as a deed as of the date first above written.
Signed as a deed for and on behalf of
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, L.P.,
its general partner
By: Triumph III Advisors, Inc.,
its general partner
By:/s/ Xxxxxxxxx X. Xxxxxxx XX
---------------------------
Name:
Title:
By:/s/ Xxxxxxxxx X. Xxxxxxx XX
---------------------------
Name:
Title:
Address: Triumph Capital Group, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxxxx, XX
Telephone: (000) 000-0000
S-4
AMENDMENT NO. 1 TO VOTING TRUST AGREEMENT
US PARENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Voting Trust Agreement as of the date first above written.
Signed as a DEED by
ALLIED HEALTHCARE INTERNATIONAL INC.
(formerly: TRANSWORLD HEALTHCARE, INC.)
acting by its duly authorized attorney:
By:/s/ Xxxx X. Xxxxx
-----------------
Name:
Title:
S-5
