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AMENDMENT TO STOCK PURCHASE WARRANT NO. WA-17
This Amendment to Stock Purchase Warrant No. WA-17 (this
"Amendment") is made this 25th day of March, 1998 by and between U.S. HomeCare
Corporation (the "Company") and the Connecticut Development Authority (the
"CDA").
WITNESSETH:
WHEREAS, the Company issued to the CDA Stock Purchase Warrant
No. WA-17 (the "Warrant") dated October 6, 1995, as amended on March 25, 1997;
and
WHEREAS, the Company and the CDA amended the definitions of
"Common Stock Deemed Outstanding" and "Exercise Price" on March 25, 1997, which
amendments are incorporated herein in their entirety; and
WHEREAS, the Company and the CDA desire to further amend the
Warrant as provided herein.
NOW THEREFORE, the Company and the CDA each intending to be
legally bound hereby, covenant and agree as follows:
Section 1. Previous Amendments to the Warrant.
The Warrant was amended, effective March 25, 1997, as follows:
a. The definition of "Common Stock Deemed
Outstanding" in Section 1 was deleted in its entirety and the following
definition was inserted in lieu thereof:
"Common Stock Deemed Outstanding" means, at any given
time, (a) the number of shares of Common Stock actually outstanding at
such time; (b) the number of shares of Common Stock issuable (i) upon
the conversion of outstanding shares of preferred stock and (ii) with
respect to all other options, warrants, rights, or other securities
convertible into shares of Common Stock (provided that such options,
warrants or rights are at an exercise price less than or equal to the
Market Price in effect on the relevant date; provided, further that
such options, warrants and rights shall only be considered "Common
Stock Deemed Outstanding" only to the extent that they have vested and
are exercisable on the relevant date), and (c) securities convertible
into or exchangeable for any of the foregoing.
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b. The definition of "Exercise Price" in Section 1
was amended by deleting the phrase "Section 3" and inserting the phrase
"Sections 3 and 5" in lieu thereof.
Section 2. Amendments to the Warrant.
The Warrant is hereby amended as follows:
Section 2.1 is deleted in its entirety and the following shall
be inserted in lieu thereof, to be read as though Section 2.1 contained the
language set forth below on the original date of the Warrant (it being
understood that the number of shares of the Warrant Stock set forth below does
not take into account any additional Warrant Stock in favor of the Registered
Holder that has become available between the date of the Warrant and the date of
this amendment as a result of the adjustment provisions of the Warrant or
otherwise):
2.1 Exercise Period. (a) The Registered Holder may exercise
this Warrant, in whole or in part (but not as to a fractional share of
Warrant Stock), with respect to 750,000 shares of the Warrant Stock,
subject to subsection (b) below, (subject to adjustment as herein
provided at any time prior to 5:00 p.m. (New York time) on March 25,
2002, unless the right to purchase shares of Warrant Stock under this
Warrant is earlier terminated pursuant to Section 14 (the "Exercise
Period").
(b) If at any time when the Junior Debt (as defined
in that certain Intercreditor Agreement dated the date hereof among
Fleet Bank, National Association ("Fleet"), the Registered Holder, the
Company and its subsidiaries listed therein, The Chase Manhattan Bank,
N.A., Creditanstalt Bankverein and The Chase Manhattan Bank, N.A., as
agent (the "Intercreditor Agreement")) is not in default the Company
elects to permanently reduce the principal balance of the Loan (as
defined in the Credit Agreement dated the date hereof among Fleet, the
Company and the subsidiaries listed therein (the "Credit Agreement"))
and reduce the Commitment (as defined in the Credit Agreement), then
the Warrant shall (to the extent not previously exercised) be reduced
such that the total Warrant Stock obtainable under this Section 2.1
(including any Warrant Stock previously issued pursuant to a partial
exercise of this Warrant) is equal to the product of 750,000 shares
times a fraction, the numerator of which is the Commitment following
such reduction and the denominator of which is $3 million; provided,
however, that upon an event of default that results in total payments
by the Registered Holder to Fleet pursuant to the Guarantee Agreement
dated the date
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hereof among Fleet, the Registered Holder and the Company and its
subsidiaries listed therein (the "Guarantee") of an amount greater than
the Commitment then outstanding, then the Warrant shall be increased
such that the total Warrant Stock obtainable under this Section 2.1
(including any Warrant Stock previously issued pursuant to a partial
exercise of this Warrant) is equal to the product of 750,000 shares
times a fraction (not to exceed 1.0), the numerator of which is the
total payments made as of the date of such calculation by the
Registered Holder to Fleet pursuant to the Guarantee and any additional
amounts owed to the Registered Holder by the Company and its
subsidiaries as of the date of such calculation pursuant to the terms
of the Credit Agreement, and the denominator of which is $3 million.
Section 3. Further Action and Assurances.
The Company and the CDA hereby agree to execute and deliver
such additional documents and shall cause such further and additional action to
be taken as may be required or, in the reasonable judgment of the Company and
the CDA necessary or desirable to effect or evidence the provisions or intent of
this Amendment and the transactions contemplated hereby.
Section 4. Reference to and Effect on the Warrant.
Except as specifically amended above, the Warrant shall remain
in full force and effect and is hereby ratified and confirmed.
Section 5. Execution in Counterparts.
This Amendment may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument.
Section 6. Governing Law.
This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts of laws or choice of law.
Section 7. Headings.
Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
U.S. HOMECARE CORPORATION
By:
Xxxxxxxx X. Xxxxxxx
Vice President, Finance and
Administration & Chief Financial Officer
CONNECTICUT DEVELOPMENT AUTHORITY
By:
Name:
Title:
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