EXHIBIT 10.9(a)
AMENDMENT NO. 1 TO
AMENDED CREDIT AND FINANCING SUPPORT AGREEMENT
This Amendment No. 1 to Amended Credit and Financing Support
Agreement (the "Amendment"), dated effective the 15th day of March, 1996, among
Medical Innovations, Inc., a Delaware corporation ("MI"), and Xxxx X. Xxxxxx,
Xxxxxx X. Xxxxx and Xxxx Xxxxxxxx (collectively, "F/H/S"). Unless otherwise
indicated herein, all capitalized terms have the meanings assigned to them in
that certain Amended Credit and Financing Support Agreement (the "Agreement")
dated as of August 12, 1994, executed by MI and F/H/S.
RECITALS:
A. On even date herewith, MI and Physicians Visiting Nurse
Service, Inc., a wholly-owned subsidiary of MI ("PVNS"), have
borrowed from the Bank the aggregate sum of $5,200,000, as
evidenced by that certain promissory note executed by MI and
delivered to the Bank in the principal amount of $3,625,000
(the "Note"), and that certain promissory note executed by
PVNS and delivered to the Bank in the principal amount of
$1,575,000 (the "Other Note"), the proceeds of which were used
to refinance the current outstanding balances of the Bank
Notes.
B. F/H/S, the Bank, MI and PVNS have each executed a Collateral
Maintenance Agreement of even date herewith (the "Collateral
Agreement"), pursuant to which F/H/S has pledged certain
assets to secure repayment of the Note and the Other Note.
C. MI and F/H/S desire to amend certain terms of the Preferred
Warrants and to further amend the Agreement to reflect the
refinancing of the Bank Notes with the Note and the Other
Note.
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AGREEMENT:
1. TERMS OF THE PREFERRED WARRANTS. Upon demand by F/H/S, and
surrender by F/H/S of the Second Amended Preferred Warrant Certificate, MI will
deliver to F/H/S a replacement certificate, duly executed by MI, in the form of
Exhibit "E" attached hereto.
2. RIGHTS AND PRIVILEGES OF CLASS A PREFERRED
STOCK. Section 3 of the Agreement is deleted in its entirety and replaced
with the following:
"3. RIGHTS AND PRIVILEGES OF CLASS A PREFERRED STOCK.
Upon demand by F/H/S, the Board of Directors will adopt, and
MI will file with the Secretary of State of the State of
Delaware, a Statement of Designations relating to the Class A
Preferred Stock in the form of Exhibit `F' attached hereto."
3. AGREEMENT TO RENEGOTIATE THE BANK NOTES. F/H/S
hereby agrees and consents to MI's renegotiation of the terms of the Bank
Notes so as to extend the maturity dates thereof, as reflected in the Note and
the Other Note. MI agrees that so long as the Collateral Agreement remains in
force, MI will not renegotiate the terms of the Note or the Other Note so as to
extend the maturity dates thereof or increase the obligations of MI thereunder.
4. REMAINDER OF AGREEMENT. Except as set forth above,
all of the terms and conditions of the Agreement remain in full force and
effect and will not be deemed to be waived or modified hereby.
5. SEVERABILITY. The invalidity or unenforceability
of any provision of this Amendment shall not invalidate or effect the
enforceability of any other provision of this Amendment or the Agreement.
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6. GOVERNING LAW. This Amendment has been executed
in and shall be construed and enforced in accordance with and governed
by the laws of the State of Texas and the laws of the United States of America
applicable in the State of Texas.
7. COUNTERPARTS. This Amendment may be executed in
multiple counterparts, each of which shall have the force and effect of an
original, and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed or
caused this Amendment to be executed on its behalf by its duly authorized
officer, as appropriate, as of the day and year first above written.
MEDICAL INNOVATIONS, INC.
By: /s/ XXXXXX XXXXX
Xxxxxx Xxxxx, Executive Vice President
/s/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
/s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
/s/ XXXX XXXXXXXX
Xxxx Xxxxxxxx
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EXHIBIT E
THE WARRANTS REPRESENTED HEREBY AND ANY SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE ACT. THE WARRANTS REPRESENTED HEREBY AND ANY SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE HEREOF MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY.
THIRD AMENDED AND RESTATED
WARRANT AGREEMENT AND CERTIFICATE
FOR THE PURCHASE OF SHARES OF CLASS A PREFERRED STOCK,
PAR VALUE $100.00 PER SHARE
OF
MEDICAL INNOVATIONS, INC.
(A DELAWARE CORPORATION)
In amendment, restatement and replacement of that certain Second
Amended and Restated Warrant Agreement and Certificate dated to be effective
June 6, 1994, and in consideration of ten dollars ($10.00) and other good and
valuable consideration received from Xxxxxx X. Xxxxx, Xx., Trustee under that
certain Voting Trust and Agency Agreement dated June 28, 1993 by and among
Xxxxxx X. Xxxxx, Xx., Xxxx X. Xxxxxx and Xxxx Xxxxxxxx ("Holder"), by MEDICAL
INNOVATIONS, INC., a Delaware corporation (the "Company"), the Company hereby
grants to Holder one (1) Warrant (the "Warrant"), exercisable to purchase one
hundred (100) shares of Class A Preferred Stock, $100.00 par value per share, of
the Company (the "Preferred Stock"), on the terms set forth in this Third
Amended and Restated Warrant Agreement and Certificate (the "Agreement").
1. NUMBER OF SHARES OF PREFERRED STOCK AND EXERCISE PRICE OF THE
WARRANT. The Warrant evidenced hereby shall be exercisable to purchase one
hundred (100) shares of Preferred Stock at $100.00 per share (the "Exercise
Price").
2. EXERCISE PERIOD OF THE WARRANT. The Warrant shall be exercisable
during the Exercise Period. For purposes of this Agreement, the term "Exercise
Period" shall mean that period commencing on the first to occur of (i) the 5th
business day following the date, if any, that a default occurs under that
certain Collateral Maintenance Agreement dated March 15, 1996 by and among Texas
Commerce Bank National Association (the "Bank"), the Company, Xxxx X. Xxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xx. and Xxxx Xxxxxxxx (the Collateral
Agreement"), or (ii) the date, if any, that the Bank liquidates any of the
collateral described in the Collateral Agreement. The Exercise Period shall
continue until the first date on which both (a) the aggregate outstanding and
unpaid balance of the Note (as such term is defined in the Collateral Agreement)
and that certain $1,000,000 promissory note, dated June 29, 1993, issued by the
Company to the former shareholders of Physicians Visiting Nurse Service, Inc.
(the "PVNS Note"), when added to the principal amount of the Other Note (as such
term is defined in the Collateral Agreement), is less than one million one
hundred seventy-five thousand dollars ($1,175,000), and (b) the Company is not
in default under the Note or the Other Note.
3. METHOD OF EXERCISE, MEDIUM AND TIME OF PAYMENT.
(a) The Warrant represented hereby may be exercised at any
time during the Exercise Period.
(b) Exercise of the Warrant represented hereby shall be by
written notice to the Treasurer of the Company and shall be accompanied by
payment in full of the Exercise Price together with any written statements
reasonably required by the Company in order to fulfill its obligations under any
applicable securities laws.
(c) The Exercise Price shall be paid in cash or by cashier's
check.
4. NO STOCKHOLDER RIGHTS CONFERRED BY THE WARRANT REPRESENTED HEREBY.
The Holder will not have any rights to dividends or any other rights of a
stockholder with respect to any shares of Preferred Stock underlying the Warrant
represented hereby until such shares shall have been issued to the Holder (as
evidenced by the records of the transfer agent of the company) upon purchase of
such shares through exercise of the Warrant represented hereby.
5. RESTRICTED SECURITIES. The Holder understands that the Warrant
represented hereby are not registered under the Securities Act of 1933, as
amended (the "Act") and that the Company has no obligation to register the
shares of Preferred Stock subject hereto and issuable upon the exercise hereof
under the Act. The Holder represents that the Warrant represented hereby is
being acquired by it and that upon exercise hereof, unless a registration
statement covering the shares underlying the Warrant is then in effect, the
underlying shares of Preferred Stock will be acquired by it for investment and
all certificates for the shares issued upon exercise of the Warrant represented
hereby will bear the following legend unless such shares are registered under
the Act prior to their issue.
The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act"), and are "restricted
securities" as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the Act or
pursuant to an exemption from registration under the Act.
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6. BENEFITS OF AGREEMENT. This Agreement will be binding upon each
successor and/or assignee of the Company and each successor of the Holder.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
Company and Holder to be effective as of March 15, 1996.
MEDICAL INNOVATIONS, INC.
By:_________________________________
Xxxxxx X. Xxxxx,
Executive Vice President
The undersigned Holder understands the terms of this Agreement and
hereby agrees to comply therewith.
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XXXXXX X. XXXXX, TRUSTEE under
that certain Voting Trust and
Agency Agreement dated June 28,
1993 by and between Xxxxxx X.
Xxxxx, Xx., Xxxx X. Xxxxxx and
Xxxx Xxxxxxxx
Address: X.X. Xxx 00000
Xxxxxxx, Xxxxx 00000
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EXHIBIT F
STATEMENT OF DESIGNATIONS
FOR THE
CLASS A PREFERRED STOCK
OF
MEDICAL INNOVATIONS, INC.
* * * * *
PURSUANT to the provisions of Section 151 of the Delaware
General Corporation Law, the undersigned corporation (the "Corporation") makes
the following statement:
FIRST: The name of the Corporation is MEDICAL INNOVATIONS,
INC.
SECOND: Set forth below is a copy of the resolution of the
Board of Directors of the Corporation (the "Resolution") establishing and
designating the Corporation's Preferred Stock, $100.00 par value, Class A (the
"Class A Stock"), and determining the preferences, limitations and relative
rights of the Class A Stock:
"RESOLVED, that pursuant to the authority expressly
granted and vested in the Board of Directors of the
Corporation in accordance with Article Fourth of its
Certificate of Incorporation, the issuance of one hundred
(100) shares of the Class A Stock upon the exercise of that
certain Third Amended and Restated Warrant Agreement and
Certificate for the Purchase of Shares of Class A Stock, dated
__________, 199_, is hereby in all respects authorized,
adopted, ratified, confirmed and approved, with such Class A
Stock having the designations, preferences, limitations and
relative rights, set forth below:
A. VOTING RIGHTS:
1. So long as the aggregate outstanding and unpaid
balance of the Note, as such term is defined in Amendment No. 1 to Amended
Credit and Financing Support Agreement, dated March 15, 1996, by and among the
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Corporation, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xx., and Xxxx Xxxxxxxx (the
"Amendment"), and that certain $1,000,000 note, dated June 29, 1993, issued by
the Corporation to the former shareholders of Physicians Visiting Nurse Service,
Inc. (the "PVNS Note"), when added to the principal amount of the Other Note, as
such term is defined in the Amendment, is equal to or exceeds an aggregate
amount of three million six hundred twenty-five thousand dollars
($3,625,000.00), the holders of the Class A Stock of the Corporation, voting
separately as a class, shall be entitled to elect seven (7) directors of the
Corporation and the holders of the Common Stock, voting separately as a class,
shall be entitled to elect six (6) directors of the Corporation. So long as the
aggregate outstanding and unpaid balance of the Note and the PVNS Note, when
added to the principal amount of the Other Note, is less than an aggregate
amount of three million six hundred twenty-five thousand dollars
($3,625,000.00), the holders of the Class A Stock of the Corporation, voting
separately as a class, shall be entitled to elect three (3) directors of the
Corporation and the holders of the Common Stock, voting separately as a class,
shall be entitled to elect six (6) directors of the Corporation. The right of
the holders of the Class A Stock of the Corporation shall continue so long as
there are any shares of Class A Stock issued and outstanding.
2. The right of the holders of the Preferred Stock with
respect to the election of directors of the Corporation may be exercised at any
annual meeting of shareholders, or, within the limitations hereinafter provided,
at a special meeting of shareholders held for such purpose. If the date on which
such right of the holders of the Preferred Stock shall become vested shall be
more than thirty (30) days preceding the date of the next annual meeting of
shareholders as fixed by the bylaws of the Corporation, the President of the
Corporation shall, within five (5) days after delivery to the Corporation at its
principal office of a request to such effect signed by the holders of at least
fifty percent (50%) of the Preferred Stock then outstanding, call a special
meeting of the holders of the Preferred Stock and of the Common Stock to be held
within twenty (20) days after the delivery of such request for the purpose of
electing a new Board of Directors to serve until the next annual meeting and
until their successors shall be elected and shall qualify. Notice of such
meeting shall be mailed to each shareholder not less than ten (10) nor more than
fifty (50) days prior to the date of such meeting. The term of office of all
directors of the Corporation shall terminate at the time of any such meeting
held for the purpose of electing a new Board of Directors, notwithstanding that
the term for which such directors had been elected shall not then have expired.
In the event that at any such meeting at which the holders of the Preferred
Stock shall be entitled to elect directors, a quorum, as defined in
Sub-paragraph 3 hereof, of the holders of such Preferred Stock shall not be
present in person or by proxy, the holders of the Common Stock, if a quorum
thereof be present, may temporarily elect the directors whom the holders of the
Preferred Stock were entitled but failed to elect, such directors to be
designated as having been so elected and their term of office to expire at such
time thereafter as their successors shall be elected by the holders of the
Preferred Stock as herein provided. Whenever the holders of Preferred Stock have
been entitled to elect directors, any such holder shall have the right, during
regular business hours, in person or by a duly
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authorized representative, to examine and to make transcripts of the stock
records of the Corporation for the Preferred Stock for the purpose of
communicating with other holders of such Preferred Stock with respect to the
exercise of such right of election.
3. At any annual or special meeting of stockholders held
for the purpose of electing directors of the Corporation when the holders of the
Preferred Stock shall be entitled to elect directors, the presence in person or
by proxy of the holders of a majority of the outstanding Preferred Stock shall
be required to constitute a quorum for the election by such class of such
directors, and the presence in person or by proxy of the holders of a majority
of the outstanding Common Stock shall be required to constitute a quorum for the
election by such class of the remaining directors or for the election
temporarily by such class as herein provided for the members of the Board of
Directors whom the holders of the Preferred Stock cannot at the time, for the
want of a quorum, elect; provided, however, that the majority of the holders of
any such class of shares who are present in person or by proxy shall have power
to adjourn such meeting for the election of directors by such class from time to
time, for a period of less than five (5) days, without notice other than
announcement at the meeting. No delay or failure by the holders of either such
class of capital stock to elect the members of the Board of Directors whom such
holders are entitled to elect shall invalidate the election of the remaining
members of the Board of Directors by the holders of the other such class of
capital stock.
4. If, during any interval between annual meetings of
shareholders for the election of directors and while the holders of the
Preferred Stock shall be entitled to elect directors, the number of directors in
office who have been elected by the holders of the Preferred Stock or the Common
Stock, as the case may be, shall, by reason of resignation, death, or removal,
be less than the total number of directors subject to election by the holders of
shares of such class:
(a) The vacancy or vacancies in the directors elected by
the holders of such class shall be filled by a
majority vote of the remaining directors then in
office, although less than a quorum, on nomination by
a majority of the remaining directors elected by the
holders of such class or their successors, or by the
sole remaining director elected by the holders of
such class or succeeding a director so elected; and
(b) If not so filled within five (5) days after the
creation thereof, the President of the Corporation
shall call a special meeting of the holders of the
shares of such class and such vacancy or vacancies
shall be filled at such special meeting.
5. Any director may be removed from office by vote of
the holders of a majority of the shares of the class of capital stock by which
his
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successor would be elected. A special meeting of the holders of shares of
such class may be called by a majority vote of the Board of Directors for the
purpose of removing a director in accordance with the provisions of this
subparagraph. The President of the Corporation shall, in any event, within five
(5) days after delivery to the Corporation at its principal office of a request
to such effect signed by the holders of at least fifty percent (50%) of the
outstanding shares of such class, call a special meeting for such purpose to be
held within twenty (20) days after the delivery of such request.
6. While any Preferred Stock of any series are
outstanding, the Corporation, without first obtaining the consent, either
expressed in writing or by affirmative vote at a meeting called for that
purpose, of the holders of at least two-thirds of the total number of shares of
all series of Preferred Stock then outstanding, as a class, shall not:
(a) Change, amend, or repeal any of the provisions
applicable to the Preferred Stock which would
adversely affect the preferences, voting power, or
other rights of the Preferred Stock; and
(b) Increase the presently authorized number of shares of
Preferred Stock, or authorize any stock (or any
security convertible into such stock) ranking on a
parity with the Preferred Stock; provided, however,
that the foregoing shall not be deemed or construed
to limit the right of the Corporation to authorize a
new series of Preferred Stock for the purpose of
redeeming or retiring all of the outstanding shares
of another series of Preferred Stock.
B. REDEMPTION. At any time after the aggregate
outstanding and unpaid balance of the Note and the PVNS Note, when added to the
principal amount of the Other Note, is less than one million one hundred
seventy-five thousand dollars ($1,175,000), the Corporation shall have the right
to redeem all or any of the issued shares of Class A Stock of the Corporation by
paying the holder or holders thereof the par value of such shares."
THIRD: The Resolution was adopted by the Board of Directors of
the Corporation on __________, 199_.
FOURTH: The Resolution was duly adopted by all necessary
action on the part of the Corporation.
DATED: __________, 199_.
MEDICAL INNOVATIONS, INC.
By:
Xxxx X. Xxxxxx, President
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