EXHIBIT 4.3
AMENDMENT AND EXCHANGE AGREEMENT
AMENDMENT AND EXCHANGE AGREEMENT, dated as of April 12, 1999, among XXXXXX
HEALTHCARE, INC., a Texas corporation (the "Company"); ZANETT LOMBARDIER, LTD.
("Zanett"), XXXXXXX XXXXX PERFORMANCE PARTNERS, L.P. ("Goldman"), XXXXXXX XXXXX
PERFORMANCE PARTNERS (OFFSHORE), L.P. ("Offshore") (Zanett, Goldman and Offshore
are referred to herein individually as a "Purchaser" and collectively as the
"Purchasers") and ZANETT SECURITIES CORPORATION (the "Placement Agent").
RECITALS
The Company and Zanett are parties to a Securities Purchase Agreement
dated July 1, 1998 (the "First Purchase Agreement") pursuant to which Zanett
acquired 2,500 shares of the Company's Series B Convertible Preferred Stock, par
value $.10 per share ("Series B Shares") and warrants ("Warrants") to purchase
125,000 shares of the Company's common stock, par value $.01 per share ("Common
Stock"). In addition, the Company and the Purchasers are parties to a Securities
Purchase Agreement dated August 10, 1998 (the "Second Purchase Agreement"),
pursuant to which the Purchasers acquired an aggregate of 2,200 Series B Shares
and Warrants to purchase 110,000 shares of Common Stock. The Company and the
Purchasers are also parties to Registration Rights Agreements dated July 1, 1998
and August 10, 1998 (the "Registration Rights Agreements"), pursuant to which
the Purchasers were granted certain rights with respect to the Series B Shares
and the Warrants. In connection with the foregoing transactions, the Company
entered into Placement Agency Agreements dated July 1, 1998 and August 10, 1998
(the "Placement Agreements") with the Placement Agent pursuant to which, among
other things, the Placement Agent received warrants to purchase an aggregate of
126,524 shares of Common Stock (the "Placement Warrants").
In connection with the execution and delivery by the Company and Zanett of
a Securities Purchase Agreement of even date herewith with respect to shares of
the Company's Series C Convertible Preferred Stock, par value $.10 per share,
the Company and the Purchasers have agreed to amend the Company's Articles of
Incorporation to reflect a change in the Statement of Designation of Rights and
Preferences with respect to the Series B Shares (the "Statement") and to amend
the terms of the Warrants and the Placement Warrants.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the Company, the Purchasers and the
Placement Agent agree as follows:
1. AMENDMENT OF STATEMENT. Subject to the terms and conditions set forth
herein, prior to or on the Closing Date (as defined below), the Company will
execute and file with the Secretary of State of the State of Texas Articles of
Amendment to the
Company's Articles of Incorporation, amending the Statement, in the form set
forth on Exhibit "A" hereto (the "Articles of Amendment").
2. AMENDMENT OF WARRANTS. Effective as of the Closing, each Warrant and
each Placement Warrant shall be amended to reflect a reduction in the Exercise
Price stated therein to $2.64 per share. Upon surrender of each Warrant or
Placement Warrant to the Company, the Company shall issue amended and restated
Warrants and Placement Warrants reflecting such amendment.
3. CLOSING. The issuance of the Shares in exchange for the Debenture shall
occur at a closing (the "Closing") to be held on April 12, 1999 (the "Closing
Date"), at the offices of Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Pennsylvania, or such other date and place as the
parties hereto may agree. At the Closing,
(a) the Company shall:
(i) deliver to the Purchasers copies of the executed Articles of
Amendment, together with evidence of filing;
(ii) issue and deliver to the Purchasers and the Placement Agent the
amended and restated Warrants and Placement Warrants; and
(iii) execute and deliver to the Purchasers and the Placement Agent a
cross-receipt for the Warrants and Placement Warrants.
(b) Each Purchaser shall:
(i) execute and deliver to the Company a cross-receipt for the amended
and restated Warrants; and
(ii) deliver to the Company the Warrants for cancellation.
(c) The Placement Agent shall:
(i) deliver to the Company the Placement Warrants for cancellation; and
(ii) executed and deliver to the Company a cross-receipt for the
amended and restated Placement Warrants.
4. REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company represents and
warrants to Xxxxxxxx as follows:
4.1 ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas.
4.2 AUTHORIZATION. The Company has all requisite power and
authority to execute, deliver and consummate the transactions contemplated by
this Agreement and the Amendment. The Company has taken all action necessary to
authorize the execution and delivery of this Agreement and the Amendment and the
consummation of the transactions contemplated hereby and thereby. Each of this
Agreement and the Amendment is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
4.3 NO VIOLATION. Neither the execution or delivery of this
Agreement or the Amendment by the Company, nor the performance by the Company of
the transactions contemplated hereby or thereby (i) conflicts with, or
constitutes a breach or default under, (a) the Articles of Incorporation of the
Company or (b) any applicable law or any applicable rule, judgment, order, writ,
injunction or decree of any court or administrative or governmental authority or
(ii) violates, conflicts with, or constitutes a default (or an event or
condition that, with notice or lapse of time or both, would constitute a
default) under, or results in the termination of, or accelerates the performance
required by, any note, bond, mortgage, indenture, deed of trust, license, lease,
contract or commitment to which the Company is a party or by which any of its
properties may be bound, except, in any such case, for conflicts, breaches,
defaults and violations that would not have a material adverse effect on the
Company's ability to perform its obligations hereunder and thereunder.
4.4 VALIDITY OF STOCK. The Articles of Amendment have been duly
authorized and, when filed with the Texas Secretary of State in accordance with
this Agreement, the Series B Shares will remain validly issued, fully paid and
non-assessable.
4.5 NO CONSENTS. The Company is not required to obtain the consent
of, or to make any filing, declaration or registration with, any governmental or
regulatory authority in connections with the execution and delivery of this
Agreement or the Amendment or the consummation by the Company of the
transactions contemplated hereby or thereby.
5. OTHER AGREEMENTS. For purposes of the First Purchase Agreement, the
Second Purchase Agreement, the Registration Rights Agreements and the Placement
Agreements, all references therein to Series B Shares shall be deemed to be
references to the Series B Shares, as amended, and the Series B Shares, as
amended, and the holders thereof shall have all of the rights, privileges,
benefits and powers accorded to the Series B Shares and/or the holders thereof
under the First Purchase Agreement, the Second Purchase Agreement, the
Registration Rights Agreement and/or the Placement Agreements.
6. MISCELLANEOUS.
6.1 PARTIES IN INTEREST. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the respective successors and permitted
assigns of the parties hereto. The rights and obligations of the parties
hereunder may not be assigned without the consent of the other parties.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
6.3 AMENDMENTS AND WAIVERS. This Agreement may be amended only by a
written instrument duly executed by the parties. Any condition to a party's
obligations hereunder may be waived in writing by such party to the extent
permitted by law.
6.4 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.5 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
without regard to its or any other jurisdiction's conflicts of law rules. Each
party hereto agrees to submit to personal jurisdiction and to waive any
objection to venue in the State of New York, and further agrees that service of
process in any action arising out of or relating to this Agreement shall be
effective if mailed to such party at the address specified herein.
6.6 THIRD PARTIES. Nothing herein expressed or implied is intended
or shall be construed to confer upon or give to any person, other than the
parties hereto and their successors or permitted assigns, any rights or remedies
under or by reason of this Agreement.
6.7 COUNTERPARTS. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto as of the date first written above.
XXXXXX HEALTHCARE, INC.
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
ZANETT SECURITIES CORPORATION ZANETT LOMBARDIER, LTD.
By: /s/ XXXXXXX XXXXXXXX By: /s/ G. A. CICOGNA
Name: Xxxxxxx Xxxxxxxx Name:
Title: President Title:
XXXXXXX SACHS PERFORMANCE XXXXXXX XXXXX PERFORMANCE
PARTNERS, PARTNERS, L.P.
By: COMMODITIES CORPORATION LLC By: COMMODITIES CORPORATION LLC
General Partner General Partner
By: /s/ XXXXXXX XXXXXXXXXXX By: /s/ XXXXXXX XXXXXXXXXXX
EXHIBIT A
