UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): July 6, 1995
AMSERV HEALTHCARE INC.
(Exact name of Registrant as Specified in its Charter)
Delaware
(State or other Jurisdiction of Incorporation)
0-08547 94-1627467
(Commission File Number) (I.R.S. Employer Identification No.)
3252 Holiday Court, Suite #204, La Jolla, California 92037
(Address of Principal Executive Offices) (Zip Code)
(619) 597-1000
Registrant's Telephone Number, Including Area Code
Not Applicable
(Former name, former address and former fiscal year, if
changed from last report)
Item 5. Other Events.
On July 6, 1995, AMSERV HEALTHCARE INC. (the "Company") entered
into an Exchange Agreement with North Central Personnel, Inc.
("NCP") pursuant to which the 341,435 shares of Class A Preferred
Stock held by NCP were exchanged for 260,141 shares of Class B
Preferred Stock. A copy of the Exchange Agreement and the
Certificate of Designation setting forth the designations,
preferences and rights of the Class B Preferred Stock are attached
hereto as exhibits.
Item 7. Exhibits.
Exhibit 4.1 - Certificate of Designation for Class B Preferred
Stock.
Exhibit 10.1 - Exchange Agreement.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
AMSERV HEALTHCARE INC.
Dated: July 7, 1995 By: /s/ LESLIE HODGE
--------------------------
Leslie Hodge
Corporate Secretary
EXHIBIT 4.1
CERTIFICATE OF
DESIGNATIONS, PREFERENCES AND RIGHTS OF
CLASS B REDEEMABLE PREFERRED STOCK
OF
AMSERV HEALTHCARE INC.
AMSERV HEALTHCARE INC. (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY: that, pursuant to authority
conferred upon the Board of Directors by the Certificate of
Incorporation (as amended) of said corporation, and pursuant to the
provisions of Section 151 of the General Corporation Law of
Delaware, said Board of Directors adopted a resolution providing
for designations, preferences and relative, participating, optional
or other rights and the related qualifications, limitations or
restrictions thereof, of the Class B Redeemable Preferred Stock,
$.01 par value per share (the "Class B Preferred") which resolution
is as follows:
RESOLVED, that the rights, designations and preferences of the
Class B Preferred Stock of the Corporation is as follows:
PART A. Terms Applicable to Class B Preferred.
Section 1. Liquidation.
1.1 Preference. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of
Class B Preferred will be entitled to be paid, before any
distribution or payment is made upon any Common Stock, an amount in
cash equal to the aggregate Liquidation Value (as defined below) of
all shares of Class B Preferred outstanding. The Corporation will
mail written notice of such liquidation, dissolution or winding up,
not less than sixty (60) days prior to the payment date stated
therein, to each record holder of Class B Preferred. At the option
of a holder of Class B Preferred with respect to its Class B
Preferred Shares, a "Change in Control" (as defined below) or an
"Organic Change" (as defined below) will be deemed to be a
liquidation, dissolution or winding up of the Corporation for
purposes of this Section 1.
1.2 Insufficient Funds. If upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary,
the assets available for distribution to the stockholders of the
Corporation (the "Distributable Funds") shall be insufficient to
permit the payment to the holders of Class B Preferred of the full
preferential amount set forth above, then the Distributable Funds
shall be distributed to the holders of Class B Preferred, ratably
in proportion to the number of Class B Preferred Shares held by
each such holder on the date of liquidation, dissolution or winding
up of the Corporation.
1.3 Remaining Funds. If any of the Distributable Funds shall
remain after the payment to the holders of Class B Preferred of the
full preferential amount set forth in Section 1.1 above, then such
remainder shall be distributed to the holders of Common Stock and
to the holders of the Class B Preferred, ratably in proportion to
the number of shares of stock that each such holder holds.
Section 2. Ranking. The Class B Preferred shall, with respect to
rights on liquidation, dissolution or winding up, rank senior to
all other equity securities of the Corporation, and any other
series or class of the Corporation's preferred or common stock, now
or hereafter authorized.
Section 3. Voting Rights. The Class B Preferred shall have those
voting rights set forth for the Class B Preferred in Part B below.
Section 4. Redemption.
4.1 Holders' Right to Require Redemption.
(a) At the written request delivered to the Corporation by any
holder of Class B Preferred then outstanding (a "Requesting Class
B
Holder") made upon any Event of Default (as defined below) or
Redemption Date (as defined below), the Corporation shall redeem
(unless otherwise prevented by law) at a redemption price per share
equal to 100% of the Liquidation Preference for such Class B
Preferred Shares in cash (i) with respect to an Event of Default,
all, but not less than all of the Class B Preferred Shares held by
such Requesting Class B Holder or (ii) with respect to each
Redemption Date, a number of Class B Preferred Shares equal to (A)
65,035 (65,036 for the last Redemption Date) multiplied by the
quotient of (i) the number of Class B Preferred Shares then held by
such holder divided by (ii) the total number of Class B Preferred
Shares outstanding at the time of the demand for redemption, plus
(B) the number of Class B Preferred Shares, if any, of which such
holder (or a predecessor-in-interest) was entitled to demand
redemption on any prior Redemption Date but for which such holder
(or a predecessor-in-interest) did not make such demand.
Notwithstanding the foregoing, if the holders do not demand for
redemption the maximum number of Class B Preferred Shares the
holder can have redeemed, such holders may demand redemption of
such amount not redeemed, but subject to redemption, at any time
thereafter.
The total sum payable per share of Class B Preferred to be redeemed
pursuant to this Section 4.1(a) or Section 4.4 (the "Redeemed
Class B Shares") on the Redemption Date, an Event of Default or
optional redemption, as the case may be, is hereinafter referred to
as the "Redemption Price", and the payment to be made on the
Redemption Date, an Event of Default or optional redemption, as the
case may be, for the Redeemed Class B Shares is hereinafter
referred to as the "Redemption Payment."
(b) If at any time after any holders of Class B Preferred Shares
shall have demanded redemption pursuant to this Section for an
Event of Default, if all Events of Default shall be remedied or
waived by such holders, then, and in every such case, such holders
may in their sole discretion, by written notice to the Corporation,
rescind and annul such demand for immediate redemption and its
consequences.
4.2 Redemption Date. The holders shall be entitled to demand
redemption on each of November 29, 1995, May 29, 1996, November 29,
1996 and May 29, 1997 (each such date a "Redemption Date").
4.3 Events of Default. An Event of Default shall be deemed to have
occurred:
(a) If the Corporation shall fail to make any redemption payment it
is obligated to make and such failure continues for a period of
five days thereafter; or
(b) Any representation or warranty made by the Corporation in the
Stock Purchase Agreement herewith, or that is contained in any
certificate furnished at any time under or in connection therewith,
shall prove to have been incorrect in any material respect on or as
of the date made or deemed made; or
(c) The Corporation shall default in the material observance or
performance of any covenant or agreement contained in this
Certificate or the Stock Purchase Agreement, and such default shall
continue unremedied for a period of thirty (30) days after the
Corporation has received notice of the occurrence thereof; or
(d) (i) The Corporation shall commence any case, proceeding or
other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its
properties or assets, or the Corporation shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Corporation any case, proceeding or other
action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed,
undischarged, unstayed or unbonded for a period of sixty (60) days;
or (iii) there shall be commenced against the Corporation any case,
proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or
any substantial part of its assets, that results in the entry of an
order for any such relief that shall not have been vacated,
discharged, stayed or bonded pending appeal within sixty (60) days
from the entry thereof; or (iv) the Corporation shall take any
action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i),
(ii) or (iii) above; or (v) the Corporation shall generally not pay
its debts as they become due; or
(e) The lapse of thirty (30) days following the day on which Eugene
Mora is no longer employed on a full-time basis by the Corporation.
(f) If there shall occur a Change of Control of the Corporation or
an Organic Change.
4.4 Optional Redemption. The Corporation may at any time redeem
all, but not less than all, of the Class B Preferred Shares owned
by each holder or holders at a price per share equal to 100% of the
Liquidation Value thereof in cash or in the form of a mutually
agreeable promissory note. The Corporation shall give written
notice of any such redemption to all holders of Class B Preferred.
Each such holder shall then have seven (7) days after receipt of
the Corporation's notice to acknowledge such redemption and to
surrender their certificates evidencing such Class B Preferred.
4.5 Redemption Payment. For each Class B Preferred Share that is
to be redeemed, the Corporation shall be obligated to pay to the
holder thereof (upon surrender by such holder at the Corporation's
principal office of the certificate representing such Class B
Preferred Shares) an amount in immediately available funds equal to
100% of the Liquidation Value of such Class B Preferred Shares
within five (5) business days of the receipt of the demand for
redemption. If the funds of the Corporation legally available for
redemption of Class B Preferred on any Redemption Date are
insufficient to redeem the total number of Class B Preferred Shares
to be redeemed on such date, those funds which are legally
available shall be paid to the holders of the Class B Preferred
ratably in proportion to the number of Class B Preferred Shares
requested to be redeemed by each Requesting Class B Holder. At any
time thereafter when additional funds of the Corporation are
legally available for the redemption of Class B Preferred Shares,
such funds shall immediately be used to redeem the balance of the
Class B Preferred Shares which the Corporation had become obligated
to redeem but had not redeemed, paid to the Requesting Class B
Holders ratably in proportion to the number of Class B Preferred
Shares requested to be redeemed by each such holder on the date
such funds become legally available. In case fewer than the total
number of Class B Preferred Shares represented by any certificate
are redeemed, a new certificate representing the number of
unredeemed Class B Preferred Shares shall be issued to the holder
thereof without cost to such holder within five (5) business days
after surrender of the certificate representing the redeemed Class
B Preferred Shares.
4.6 No Rights After Redemption. Subject to Section 4.1(b), upon
delivery of notice of redemption, all rights of any Class B
Preferred Holder with respect to the Redeemed Class B Shares,
except the right to receive the Redemption Price for each Redeemed
Class B Share as herein provided, shall cease and terminate except
for those shares for which the Company has insufficient funds to
redeem pursuant to Section 4.5; and such Redeemed Class B Shares
shall no longer be deemed to be outstanding, whether or not the
certificates representing such shares have been received by the
Corporation; provided, however, that, if the Corporation defaults
in the payment of the Redemption Payment, the rights of the
Requesting Class B Holder shall continue until the Corporation
cures such default. At any time on or after the Redemption Date,
the Requesting Class B Holder shall be entitled to receive the
Redemption Price for each of the Redeemed Class B Shares upon
actual delivery to the Corporation of the certificate(s)
representing the Redeemed Class B Shares.
4.7 Redeemed or Otherwise Acquired Shares. Any Class B Preferred
Shares that are redeemed or otherwise acquired by the Corporation
shall be cancelled and no longer exist.
4.8 Other Redemptions. The Corporation shall not redeem or
otherwise acquire any Class B Preferred Shares, except as expressly
authorized in this Section or pursuant to an offer made pro rata to
all holders of the Class B Preferred on the basis of the number of
Class B Preferred Shares held by each such holder.
Section 5. Miscellaneous.
5.1 Registration of Transfer. The Corporation will keep at its
principal office a register for the registration of Class B
Preferred Shares. Upon the surrender of any certificate
representing Class B Preferred Shares at such place, the
Corporation will, at the request of the record holder of such
certificate, execute and deliver (at the Corporation's expense) a
new certificate or certificates in exchange therefor representing
in the aggregate the number of Class B Preferred Shares represented
by the surrendered certificate. Each such new certificate will be
registered in such name and will represent such number of Class B
Preferred Shares as is requested by the holder of the surrendered
certificate and will be substantially identical in form to the
surrendered certificate.
5.2 Replacement. Upon receipt of evidence reasonably satisfactory
to the Corporation (an affidavit of the registered holder will be
satisfactory) of the ownership and the loss, theft, destruction or
mutilation of any certificate evidencing Class B Preferred Shares,
and in the case of any such loss, theft or destruction, upon
receipt of indemnity reasonably satisfactory to the Corporation,
or, in the case of any such mutilation upon surrender of such
certificate, the Corporation will (at its expense) execute and
deliver in lieu of such certificate a new certificate of like kind
representing the number of Class B Preferred Shares of such class
represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate.
5.3 Amendment and Waiver. No amendment, modification or waiver
will be binding or effective with respect to any provision of
Article IV, Part A without the prior written consent of the holders
of at least fifty one (51%) of the Class B Preferred Shares
outstanding at the time such action is taken; provided that no
action will discriminate against any holder of Class B Preferred
other than as a result of a difference in the number of Class B
Preferred Shares held by such holders.
5.4 Notices. Except as otherwise expressly provided, all notices
referred to herein will be in writing and will be delivered by
registered or certified mail, return receipt requested, postage
prepaid and will be deemed to have been given when so mailed (a) to
the Corporation, at its principal executive offices and (b) to any
stockholder, at such holder's address as it appears in the stock
records of the Corporation (unless otherwise indicated in writing
by such holder).
PART B. Voting Rights.
Section 1. In General. Except as otherwise provided by the by the
Delaware General Corporation Law or by this Certificate of
Incorporation or any amendments thereto, each Class B Preferred
Share shall entitle the holder thereof to vote, in proxy or in
person, on all matters voted on by the holders of Common Stock
voting together as a single class with the holders of Common Stock
and with the holders of all other shares entitled to vote thereon;
provided, the Class B Preferred Shares shall not entitle the
holders thereof to vote, in proxy or in person, in the "Renewed
Consent Solicitation" (as defined in the Standstill Agreement
between AMSERV and Stockbridge Investment Partners, Inc. (the
"Standstill"), dated May 12, 1995, as amended). Each holder of
Class B Preferred shall have one vote per share of Class B
Preferred held by such holder on the date as of which the holders
of Class B Preferred of record entitled to vote were determined and
each holder of Common Stock shall have one vote per share of Common
Stock held by such holder on the date as of which the holders of
Common Stock of record entitled to vote were determined.
PART C. Definitions.
"Affiliate" shall have the same meaning as the term is defined in
the Securities Exchange Act of 1934, as amended and the rules and
regulations thereunder or any successor statute or rules and
regulations (the "Exchange Act").
"Change of Control" means the happening of any of the following
events:
(a) (i) any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person")
acquires beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of greater than 50% of the then
outstanding shares of Common Stock or (ii) the stockholders of the
Corporation approve a reorganization, merger, consolidation,
complete liquidation or dissolution of the Corporation, the sale or
disposition of all or substantially all of the assets of the
Corporation or similar corporate transaction, unless such
acquisition (as described in clause (i) above) or such transaction
(as described in clause (ii) above) is approved prior thereto by
the Corporation's Board in accordance with the Corporation's
Bylaws.
(b) A change in the composition of the Board such that the
individuals who, as of the date of this Certificate, constitute the
Board (such Board shall be hereinafter referred to as the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual who
becomes a member of the Board subsequent to the date of this
Certificate whose election, or nomination for election by the
Corporation's stockholders, was approved by a vote of at least a
majority of those individuals who are members of the Board and who
were also members of the Incumbent Board (or deemed to be such
pursuant to this provision) shall be considered as though such
individual were a member of the Incumbent Board; but, provided,
further, that any such individual whose initial assumption of
office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board shall not be so considered as a
member of the Incumbent Board.
"Liquidation Value" of any share of Class B Preferred as of any
particular date will be equal to $2.625 per share.
"Organic Change" means any capital reorganization,
reclassification, consolidation, merger, lease, or sale of all or
substantially all of the Corporation's assets to another Person
which is effected in such a way that holders of Common Stock are
entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in
exchange for shares of Common Stock.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Stock Purchase Agreement" means the Stock Purchase Agreement,
dated as of April 7, 1995, by and among the Corporation and North
Central Personnel, Inc., as such agreement may be amended from time
to time in accordance with its terms.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations, Preferences and Rights of Class B Preferred Stock to
be signed by Eugene J. Mora, its Chairman on this 26th day of June,
1995.
AMSERV HEALTHCARE INC.
/s/ EUGENE J. MORA
- ---------------------------
By: Eugene J. Mora
Its: Chairman
EXHIBIT 10.1
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (this "Agreement") is made as of July
6, 1995, by and between NORTH CENTRAL PERSONNEL, INC., an Ohio
corporation ("NCP"), and AMSERV HEALTHCARE INC., a Delaware
corporation ("AMSERV").
WHEREAS, NCP acquired 426,794 shares of AMSERV Class A
Redeemable Preferred Stock, par value, $.01 per share (the "Class
A Preferred Stock") pursuant to that certain Stock Purchase
Agreement by and between AMSERV and NCP, dated as of April 7, 1995
(the "Stock Agreement"), 85,359 of such shares have been redeemed
in accordance with the terms of the Class A Preferred Stock, and
341,435 shares of Class A Preferred Stock remain outstanding.
WHEREAS, NCP and AMSERV entered into that certain Voting
Agreement as of April 7, 1995 (the "Voting Agreement"), whereby NCP
agreed to vote the shares of Class A Preferred Stock in accordance
with the recommendations of the AMSERV Board of Directors (the
"Board"), which was evidenced by an Irrevocable Proxy To Vote to
the Board as of April 7, 1995 (the "Proxy").
WHEREAS, NCP and AMSERV rescinded, revoked and annulled the
Voting Agreement and the Proxy, and released the other party from
their obligations thereunder, pursuant to a Rescission Agreement,
dated May 12, 1995 (the "Rescission Agreement").
WHEREAS, NCP and AMSERV each desire that the preferred stock
held by NCP not have the right to vote in the "Renewed Consent
Solicitation" (as defined in the Rescission Agreement) and that the
number of shares of preferred stock held by NCP be reduced so that
the percentage of voting rights as to other matters represented by
the preferred stock is commensurate with the percentage of the
total dollar market capitalization of the Company represented by
such shares of preferred stock based upon the closing bid price of
the Company's Common Stock on April 7, 1995 of $2.625 per share.
WHEREAS, the terms and conditions of AMSERV's Class B
Redeemable Preferred Stock, par value $.01 per share (the "Class B
Preferred Stock"), do not permit the holders thereof to vote in the
Renewed Consent Solicitation.
NOW, THEREFORE, in consideration for the mutual covenants
contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, NCP and
AMSERV agree as follows:
1. Exchange of Preferred Stock. AMSERV hereby offers to
exchange 260,141 shares of Class B Preferred Stock for the 341,435
shares of Class A Preferred Stock outstanding as of the date of
this Agreement, and NCP, as the holder of record of all of the
issued and outstanding shares of Class A Preferred Stock, hereby
tenders for exchange all of the shares of Class A Preferred Stock
of which it is the holder of record. By executing and delivering
this Agreement AMSERV acknowledges receipt for cancellation of the
stock certificates representing all of the shares of Class A
Preferred Stock held of record by NCP, and NCP acknowledges receipt
of the stock certificates representing all of the shares of Class
B Preferred Stock to be issued in exchange therefor.
2. Amendment to Stock Purchase Agreement.The parties
hereby amend the Stock Purchase Agreement so that all references
therein to the "Preferred Stock" shall refer to the Class B
Preferred Stock and not to the Class A Preferred Stock, and all
references therein to the "Shares" shall refer to the 260,141
shares of Class B Preferred Stock and not to the 341,435 shares of
Class A Preferred Stock, except that for purposes of Section 10
therein also shall refer to the 341,435 shares of Class A Preferred
Stock.
3. Fees and Expenses. AMSERV agrees to pay NCP's reasonable
legal fees and expenses incurred by NCP in connection with this
Agreement.
4. Entire Understanding. NCP and AMSERV agree that this
Agreement contains the entire understanding of the parties with
respect to its specific subject matter and supersedes all prior and
contemporaneous agreements, understandings, inducements or
conditions, expressed or implied, oral or written, except as herein
contained. This Agreement may be amended only a written instrument
duly executed by the parties hereto.
5. Ratification and Affirmation of Prior Agreements. Except as
modified herein, all terms and conditions set forth in the
Agreements dated April 7, 1995 related to the conversion of debt to
the Preferred Stock and the Rescission Agreement dated May 12, 1995
are hereby ratified and affirmed, including but not limited to,
NCP's redemption rights on the Redemption Date, as defined therein,
and NCP's right of redemption in total if the Renewed Consent
Solicitation is successful.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first listed above.
AMSERV HEALTHCARE INC. NORTH CENTRAL PERSONNEL, INC.
__________________________ _____________________________
By: Eugene Mora By: Diane Gurik
Its: Chairman Its: President
