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EXHIBIT 10.14
TERMINATION AGREEMENT
This Termination Agreement (the "Agreement") is made and entered into
this 27th day of June, 1996 by and among UroQuest Corporation, a Florida
corporation, including its successors and assigns (the "Company"), Xxxxxxx X.
Xxxxx, Xx., M.D. ("Xxxxx"), Warburg, Xxxxxx Investors, L.P., a Delaware limited
partnership ("Warburg"), and Vertical Fund Associates, L.P., a Delaware limited
partnership ("Vertical" and, together with Warburg, the "Investors"), and shall
be effective only upon the closing of the Initial Public Offering (as defined
herein) of the Company.
Recitals:
WHEREAS, the parties hereto have entered into that certain Securities
Purchase Agreement, dated as of June 15, 1995, a copy of which is attached
hereto as Exhibit A and by this reference incorporated herein (the "Purchase
Agreement"); and
WHEREAS, pursuant to the Purchase Agreement, the Company issued a
Warrant to Warburg, dated June 15, 1995, a copy of which is attached hereto as
Exhibit B and by this reference incorporated herein (the "Original Warrant");
and
WHEREAS, the Company has determined to file with the Securities and
Exchange Commission a Registration Statement on Form S-1 under the Securities
Act of 1933, as amended, with respect to a proposed initial public offering of
up to 3,350,000 shares (but in no event less than 3,000,000 shares) of its
Common Stock, not including shares covered by the over-allotment option to be
granted to Xxxxxx, Read & Co. Inc. and Prudential Securities Incorporated, the
managing underwriters of the offering contemplated therein, with an initial
public offering price of between $11.00 and $13.00 per share (the "Initial
Public Offering"); and
WHEREAS, in connection with, and subject to the closing of, the Initial
Public Offering, the parties hereto desire to terminate their respective
interests under the Purchase Agreement and the Original Warrant, except as
specifically set forth herein.
Agreement:
Now, therefore, upon these premises and in consideration of the
respective obligations and covenants contained herein, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Confirmation of Agreements. The parties hereto hereby acknowledge,
confirm and agree that the Purchase Agreement and the Original Warrant shall
continue in full force and effect, subject to their respective terms and
conditions, until the Effective Time (as defined below).
2. Termination of Agreements. Effective as of the closing of the
Initial Public Offering (the "Effective Time"), the Purchase Agreement and the
Original Warrant (collectively, the "Agreements") are hereby terminated, and no
party thereto shall have any right, interest, duty or obligation with respect
to the Agreements.
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3. Issuance and Exercise of Warrants. As of the Effective Time, the
Company shall issue to Warburg the warrant, to be dated the day of the
Effective Time, in the form attached hereto as Exhibit C and by this reference
incorporated herein (the "Warburg Replacement Warrant"), and Warburg shall
simultaneously exercise the Warburg Replacement Warrant in full, in accordance
with its terms and conditions. As of the Effective Time, the Company shall
issue to Vertical the warrant, to be dated the day of the Effective Time, in
the form attached hereto as Exhibit D and by this reference incorporated herein
(the "Vertical Replacement Warrant"), and Vertical shall simultaneously
exercise the Vertical Replacement Warrant in full, in accordance with its terms
and conditions.
4. Sale of Common Stock by Xxxxx. As of the Effective Time, Xxxxx shall
sell to Warburg, and Warburg shall purchase from Xxxxx, 128,571 (one hundred
twenty eight thousand five hundred seventy one) shares of Common Stock for an
aggregate of $450 (Four Hundred Fifty Dollars) in cash or other immediately
available funds. As of the Effective Time, Xxxxx shall sell to Vertical, and
Vertical shall purchase from Xxxxx, 14,285 (fourteen thousand two hundred
eighty five) shares of Common Stock for an aggregate of $50 (Fifty Dollars) in
cash or other immediately available funds.
5. Amendment to Co-Sale Agreement. The parties hereto have entered into
that certain Right of First Refusal and Co-Sale Agreement dated as of June 15,
1995, a copy of which is attached hereto as Exhibit E and by this reference
incorporated herein (the "Co-Sale Agreement"). The parties hereto acknowledge
and agree that the Co-Sale Agreement shall be amended pursuant to the terms of
the letter agreement attached hereto as Exhibit F and by the reference
incorporated herein (the "Amendment"). The parties hereto affirm that the
Co-Sale Agreement shall continue in full force and effect, subject to its terms
and conditions, as amended and modified by the Amendment.
6. Affirmation of Contracts. The parties hereto hereby affirm that
nothing contained herein shall be deemed to modify or affect the terms and
conditions of the Option Agreement, dated June 15, 1996, among Warburg, the
Company and the holders of 12% Secured Promissory Notes (the "Option
Agreement"), the Second Amended and Restated Stockholders Agreement, dated May
31, 1995 and effective as of June 15, 1995, among the Company and the
Stockholders (as defined therein) (the "Stockholders Agreement"), or the
Registration Rights Agreement, dated June 15, 1995, among the Investors and the
Company (the "Rights Agreement"), and the Option Agreement, Stockholders
Agreement and Rights Agreement shall continue in full force and effect, subject
to their respective terms and conditions.
7. Warburg Right to Designate Directors. So long as Warburg owns
beneficially (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) at least fifty percent (50%) of
the stock of the Company (including shares of Common Stock issuable upon
conversion of the Series D Preferred Stock and upon exercise of the Warburg
Replacement Warrant) owned by it on the date hereof, Warburg shall, at any
time, be entitled to designate three (3) directors to the Company's Board of
Directors.
8. Vertical Right to Designate Directors. So long as Vertical owns
beneficially (within the meaning of Rule 13d-3 under the Exchange Act) at least
fifty percent (50%) of the stock of the Company (including shares of Common
Stock issuable upon conversion of the Series D Preferred Stock and upon
exercise of the Vertical Replacement Warrant) owned by it on the date hereof,
Vertical shall, at any time, be entitled to designate three (3) directors to
the Company's Board of Directors.
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9. Change in Number of Directors. Notwithstanding anything contained
in the Articles of Incorporation or the Bylaws of the Company, each as amended
to date, the parties to this Agreement hereby agree that upon the request of
Warburg or Vertical to designate directors pursuant to the provisions set forth
in Sections 7 and 8 above, the parties hereto shall take all actions necessary,
including without limitation amending the Bylaws of the Company, to increase
the size of the Board of Directors so as to consist of not more than eleven
(11) members. Until such time as neither Warburg nor Vertical shall be entitled
to designate directors pursuant to this Agreement, the size of the Board of
Directors shall not be increased to a number greater than eleven (11) members
without the prior written consent of each of Warburg and Vertical.
10. Stock Split and Share Amounts. All share amounts contained herein
are expressed on a post-split basis assuming and giving effect to the Company's
proposed 1-for-3.5 reverse stock split (the "Reverse Split") of the outstanding
Common Stock and Preferred Stock of the Company to be effected in connection
with the Company's reincorporation in the State of Delaware. In the event the
Reverse Split is not effected prior to the Effective Time or is effected on a
basis other than as set forth above, the share amounts contained herein shall be
adjusted appropriately on an equitable basis.
11. No Cancellation. Nothing contained in this Agreement shall be
deemed to cancel or void, ab initio, any prior performance under the Purchase
Agreement that has been fully executed.
12. General Provisions
a. Notices. All communications under this Agreement shall be in
writing and shall be delivered by hand or mailed by overnight
courier or by registered mail or certified mail, postage
prepaid:
(1) if to Warburg, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, marked for attention of Xxxxxxxxx X. Xxxxxxxxxx, or
at such other address as Warburg may have furnished the
Company in writing,
(2) if to Vertical, at 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
00000, marked for attention of Xxxx Xxxxxxxxx, or at such
other address at Vertical may have furnished the Company
in writing,
(3) if to Xxxxx, at 00000 Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxx
00000, marked for attention of Xxxxxxx X. Xxxxx, Xx.,
M.D., or at such other address as Xxxxx may have furnished
the Company in writing, or
(4) if to the Company, at 000 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx,
Xxxx 00000, marked for the attention of the President, or
at such other address as the Company may have furnished in
writing to the Investors.
b. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely
within such State.
c. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of
each of the parties.
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d. Entire Agreement; Amendment and Waiver. This Agreement and the
agreements or other instruments attached as Exhibits hereto constitute the
entire understanding of the parties hereto and supersede all prior agreements
or understandings with respect to the subject matter hereof among such parties.
This Agreement may be amended, and the observance of any term of this Agreement
may be waived, with (and only with) the written consent of the Company, Xxxxx
and each of the Investors.
e. Severability. If any provision of this Agreement be determined by any
court having jurisdiction to be unlawful or unenforceable, such provision shall
be deemed separate and apart from all other provisions of this Agreement, and
all remaining provisions of this Agreement shall be fully enforceable.
f. Limitation on Enforcement of Remedies. The Company hereby agrees that
it will not assert against the limited partners of each of the Investors any
claim it may have under this Agreement by reason of any failure or alleged
failure by such Investor to meet its obligations hereunder.
g. Counterparts. This Agreement may be executed in more than one
counterpart and by facsimile, each of which shall be deemed an original and all
of which together shall constitute one and the same agreement.
UROQUEST CORPORATION
By:
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Name:
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Title:
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XXXXXXX X. XXXXX, XX., M.D.
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WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co., General Partner
By:
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Name:
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Title:
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VERTICAL FUND ASSOCIATES, L.P.
By: The Vertical Group, General Partner
By:
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Name:
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Title:
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