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OMB APPROVAL
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UNITED STATES OMB Number: 3236-0148
SECURITIES AND EXCHANGE COMMISSION Expires: August 31, 1991
WASHINGTON, D.C. 20549 Estimated average burden
hours per response: 14.80
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 8 )*
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AMSERV HEALTHCARE INC.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
032162109
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(CUSIP Number)
Leslie Hodge, AMSERV HEALTHCARE INC., 3252 Holiday Court, #204, La Jolla, CA
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92037 (619) 597-1000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
April 7, 1995
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3), check the following box.
Check the following box if a fee is being paid with the statement. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
- ------------------------------ --------------------------
CUSIP NO. 032162109 PAGE 2 OF 24 PAGES
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- ------------------------------ --------------------------
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Eugene J. Mora SSN ###-##-####
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a)
(b)
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SEC USE ONLY
3
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SOURCE OF FUNDS*
4
PF and OO
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
5 2 (D) OR 2(E)
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
USA
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NUMBER OF SOLE VOTING POWER
7
SHARES 369,027 shares of common stock 175,500 options
-------------------------------------------------------------
BENEFICIALLY SHARED VOTING POWER
8
OWNED BY
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EACH
SOLE DISPOSITIVE POWER
REPORTING 9
369,027 shares of common stock 175,500 options
PERSON -------------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
544,527
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* X
12
Excludes 426,794 shares of preferred stock and 55,125 options (See Item
5(a))
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
13
16.4% of common stock
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TYPE OF REPORTING PERSON*
14
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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Page 3 of 24
ITEM 1. SECURITY AND ISSUER
- ----------------------------
This Schedule 13D relates to the shares of common stock, $.01 par value per
share (the "Shares"), of AMSERV HEALTHCARE INC., a Delaware corporation (the
"Company"), with executive offices located at 3252 Holiday Court, #204, La
Jolla, California, 92037 (formerly located at 6490 McCarran Boulevard, Bldg. D-
1, Suite #34, Reno, NV 89509).
ITEM 2. IDENTITY AND BACKGROUND
- --------------------------------
(a) This Schedule 13D is being filed on behalf of Eugene J. Mora, an
individual ("Mora").
(b) Mora's business address is AMSERV HEALTHCARE INC., 3252 Holiday
Court #204, La Jolla, California 92037.
(c) Mora's principal occupation is that of Chairman of the Board, Chief
Executive Officer and President of the Company.
(d) Mora has not been convicted in a criminal proceeding during the last
five (5) years (excluding minor traffic violations or similar misdemeanors).
(e) Mora has not been a party during the last five (5) years to a civil
proceeding of a judicial or administrative body of competent jurisdiction
pursuant to which he was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
(f) Mora is a citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
- ----------------------------------------------------------
With respect to the Shares which required Mora's filing a Schedule 13D on
February 24, 1993, Mora used personal funds in the amount of $113,112 for the
purchase on the open market of 30,000 Shares, received stock dividends of 3,075
Shares, and owned options to purchase 353,062 Shares pursuant to a stock option
plan.
Mora used personal funds in the amount of $48,063.75 for the purchase of
the 41,390 Shares reported in his Schedule 13D, Amendment #1, filed April 7,
1994 (Item 5(c)( i)).
Mora used personal funds in the amount of $37,500 for the purchase of the
34,000 Shares reported in his Schedule 13D, Amendment #2, filed September 6,
1994 (Item 5(c)(ii)).
Mora used personal funds in the amount of $48,000 for the purchase of the
41,000 Shares reported in his Schedule 13D, Amendment #3, filed December 2, 1994
(Item 5(c)(iii)).
Mora used personal funds in the amount of $40,493 for the purchase of the
32,200 Shares
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Page 4 of 24
reported in his Schedule 13D, Amendment #4, filed December 19, 1994
(Item 5(c)(iv)).
In Mora's Schedule 13D Amendments #5, filed April 20, 1995, and #6, filed
April 26, 1995, the 7,600 Shares listed in Item 5(c)(v) as purchased through a
broker were purchased by Mora with personal funds in the amount of $11,775. The
40,000 Shares and 27,562 Shares listed in Item 5(c)(vi) were purchased through
the exercise of stock options pursuant to a stock option plan, with personal
funds in the amounts of $105,000 and $49,997, respectively. The 110,000 Shares
listed in Item 5(c)(vi) were purchased through the exercise of a stock option
pursuant to a stock option plan, with personal funds in the amount of $1,100 and
a Promissory Note between Mora and the Company in the original principal amount
of $198,440. The Promissory Note is secured by 177,762 Shares owned by Mora,
bears interest at a rate of 10% per annum, and matures in April 2000.
Mora used personal funds in the amount of $6,050 for the purchase of the
2,200 Shares reported in his Schedule 13D, Amendment #7, filed May 15, 1995
(Item 5(c)(vii).
ITEM 4. PURPOSE OF TRANSACTION
- -------------------------------
The purchases reported herein were made as an investment. Mora may, in the
future, purchase additional Shares or dispose of the Shares. Mora does not have
any present plan or proposal which would relate to or result in a transaction of
the kind described in paragraphs (a) through (j) of Item 4 of Schedule 13D of
the Securities Exchange Act of 1934, as amended, except the exercise of the
options discussed below in Item 5. In the future, however, Mora reserves the
right to adopt such plans or proposals.
No material change has occurred in the facts set forth in Amendment #7 to
Mora's Schedule 13D. This Amendment #8 is being filed in electronic format to
comply with the EDGAR requirements set forth in Rule 901 of Regulation S-T.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
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(a) Mora directly owns 369,027 Shares. Mora is also the record owner of
nonqualified stock options to purchase 175,500 Shares (the "Option Shares"),
which Option Shares are immediately exercisable by Mora. Beneficial ownership
of the 426,794 shares of Preferred Stock issued to North Central Personnel, Inc.
as of April 7, 1995, to the extent deemed to be acquired by Mora, resulted from
a Voting Agreement and Proxy entered into between North Central Personnel and
the Company pursuant to which Mora was named as agent to vote a Proxy on behalf
of and at the direction of the Board of Directors of the Company. The Voting
Agreement and Proxy were rescinded as of May 12, 1995. Mora disclaims beneficial
ownership of the 426,794 shares of Preferred Stock. Mora also disclaims
beneficial ownership of stock options to purchase 55,125 Shares, for which
Rosemarie Mora, Mora's former wife, has sole voting and dispositive power.
The aggregate number of Shares of which Mora may be deemed to be the
beneficial owner is 544,527, which is 16.4% of the 3,150,838 outstanding Shares
of the Company. This total includes the Option Shares owned by Mora, which are
immediately exercisable. This total does not include the 426,794 shares of
Preferred Stock for which Mora was named as agent to vote on
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Pages 5 of 24
behalf of and at the direction of the Board of Directors of the Company, or the
stock options to purchase 55,125 Shares for which Rosemarie Mora has sole
voting and dispositive power.
(b) Mora has the sole power to vote and dispose of 544,527 Shares.
(c)(i) Mora purchased 41,390 Shares through a broker:
<TABLE>
<CAPTION>
Date Purchased Number of Shares Purchased Price Per Share
- -------------------------------------------------------------------------------
<S> <C> <C>
February 11, 1994 2,000 $1.125
February 11, 1994 1,390 1.125
February 11, 1994 2,000 1.125
February 15, 1994 2,000 1.125
February 25, 1994 5,000 1.125
February 25, 1994 2,000 1.250
March 8, 1994 2,000 1.250
March 11, 1994 2,000 1.250
March 11, 1994 1,000 1.250
March 11, 1994 1,000 1.250
March 11, 1994 2,000 1.250
March 11, 1994 2,000 1.250
March 16, 1994 2,000 1.125
March 16, 1994 3,000 1.125
March 24, 1994 4,000 1.125
March 25, 1994 2,000 1.125
March 25, 1994 2,000 1.125
March 25, 1994 2,000 1.125
March 25, 1994 2,000 1.125
</TABLE>
(c)(ii) Mora purchased 34,000 Shares through a broker:
<TABLE>
<CAPTION>
Date Purchased Number of Shares Purchased Price Per Share
- --------------------------------------------------------------------------------
<S> <C> <C>
June 16, 1994 7,000 1.375
June 17, 1994 2,000 1.375
June 17, 1994 2,000 1.375
August 30, 1994 1,000 .875
August 30, 1994 2,000 .875
August 30, 1994 5,000 1.000
August 30, 1994 3,000 1.000
August 30, 1994 2,000 .875
August 31, 1994 10,000 1.000
</TABLE>
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Page 6 of 24
(c)(iii) Mora purchased 41,000 Shares through a broker:
<TABLE>
<CAPTION>
Date Purchased Number of Shares Purchased Price Per Share
- --------------------------------------------------------------------------------
<S> <C> <C>
November 11, 1994 5,000 1.1250
November 11, 1994 5,000 1.1250
November 11, 1994 3,000 1.1250
November 11, 1994 2,000 1.1250
November 12, 1994 1,000 1.1250
November 15, 1994 10,000 1.1875
November 18, 1994 5,000 1.1250
November 29, 1994 10,000 1.2500
</TABLE>
(c)(iv) Mora purchased 32,200 Shares through a broker:
<TABLE>
<CAPTION>
Date Purchased Number of Shares Purchased Price Per Share
- --------------------------------------------------------------------------------
<S> <C> <C>
December 1, 1994 6,000 1.2500
December 2, 1994 1,000 1.2500
December 2, 1994 4,000 1.2500
December 2, 1994 5,000 1.2500
December 5, 1994 1,200 1.2500
December 6, 1994 100 1.2500
December 7, 1994 3,900 1.3125
December 13, 1994 11,000 1.2500
</TABLE>
(c)(v) Mora purchased 7,600 Shares through a broker:
<TABLE>
<CAPTION>
Date Purchased Number of Shares Purchased Price Per Share
- --------------------------------------------------------------------------------
<S> <C> <C>
December 2, 1994 5,000 1.375
December 15, 1994 1,000 1.250
December 19, 1994 200 1.250
December 19, 1994 200 1.250
April 18, 1995 200 2.625
April 19, 1995 1,000 2.625
</TABLE>
(c)(vi) Mora purchased 177,562 Shares through the exercise of stock
options:
<TABLE>
<CAPTION>
Date Purchased Number of Shares Purchased Price Per Share
- --------------------------------------------------------------------------------
<S> <C> <C>
April 18, 1995 40,000 2.625
April 18, 1995 27,562 1.814
</TABLE>
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Page 7 of 24
<TABLE>
<S> <C> <C>
April 20, 1995 110,000 1.814
</TABLE>
(c)(vii) Mora purchased 2,200 Shares through a broker:
<TABLE>
<CAPTION>
Date Purchased Number of Shares Purchased Price Per Share
- --------------------------------------------------------------------------------
<S> <C> <C>
April 21, 1995 2,200 2.750
</TABLE>
(d) No other person is known to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, the
Shares.
With respect to the 426,794 shares of Preferred Stock described
above, the direct owner of such shares, North Central Personnel, has the sole
right to receive and the power to direct the receipt of dividends from, or the
proceeds from the sale of, the Preferred Stock.
(e) Not Applicable
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
- -------------------------------------------------------------------------
RESPECT TO SECURITIES OF THE ISSUER
- -----------------------------------
Mora is a party to a Promissory Note between himself and the Company
(Exhibit (a)) in the original principal amount of $198,440 which is secured by
177,562 Shares owned by Mora, bears interest at a rate of 10% per annum and
matures in April 2000.
Mora is a party to a Stock Pledge Agreement (Exhibit (b)) between himself
and the Company with respect to the 67,562 Shares acquired on April 18, 1995,
and the 110,000 Shares acquired on April 20, 1995, which together secure the
Promissory Note described above. In the event of any default by Mora under the
Promissory Note or the Stock Pledge Agreement, the Company has the right to take
such Shares in repayment of the Promissory Note, and the right to sell such
Shares at public or private sale. So long as no fault occurs under the
Promissory Note or Stock Pledge Agreement, Mora is entitled to receive all
dividends paid on such Shares, to vote such Shares in all matters and to
otherwise be entitled to all rights of ownership of such Shares.
The Company and North Central Personnel entered into a Voting Agreement and
Proxy dated April 7, 1995 (Exhibit (c)), pursuant to which Mora was named agent
to vote a Proxy with respect to 426,794 shares of Preferred Stock owned by North
Central Personnel on behalf of and at the direction of the Board of Directors of
the Company. The Voting Agreement and Proxy were rescinded as of May 12, 1995
(a copy of the Rescission Agreement is attached as Exhibit (d)).
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
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(a) Promissory Note
(b) Stock Pledge Agreement
(c) Voting Agreement and Proxy
(d) Rescission Agreement
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Page 8 of 24
ADDITIONAL STATEMENTS
- ---------------------
MORA DISCLAIMS BENEFICIAL OWNERSHIP OF 426,794 SHARES OF PREFERRED STOCK
AND 55,125 SHARES OF COMMON STOCK SUBJECT TO NONQUALIFIED STOCK OPTIONS.
*****
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Signature
Date: June 21, 1995 /s/ Eugene J. Mora
Eugene J. Mora
President, AMSERV HEALTHCARE INC.
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Page 9 of 24
EXHIBIT INDEX
Exhibit (a) Promissory Note
Exhibit (b) Stock Pledge Agreement
Exhibit (c) Voting Agreement and Proxy
Exhibit (d) Rescission Agreement
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Pages 10 of 24
EXHIBIT (a)
PROMISSORY NOTE
$198,440 April 20, 1995
San Diego, California
1. FOR VALUE RECEIVED, Eugene J. Mora ("Payor") promises to pay to
the order of AMSERV HEALTHCARE INC. (the "Company") the principal sum of One
Hundred Ninety-Eight Thousand Four Hundred Forty Dollars ($198,440), with
interest on the unpaid principal amount owing from time to time at ten percent
(10%) per annum, compounded annually, commencing with the date hereof and
continuing on the unpaid principal until paid. Principal and all accrued
interest remaining unpaid shall be due on April 20, 2000.
2. All payments of interest and principal shall be in lawful money
of the United States of America or, at the election of Payor, in shares of
Common Stock of the Company valued as set forth below, or in salary reduction
and/or any monies currently due at the time of such payments to Payor under any
Employment Agreement or Consulting Agreement with the Company, valued on a
dollar-for-dollar basis. The value of any shares of Common Stock of the Company
as of a given repayment date shall be: (i) the closing price of a share of the
Company's Common Stock on the principal exchange on which shares of the
Company's Common Stock are then trading, if any, on the trading day previous to
such date, or, if shares were not traded on the day previous to such date, then
on the next preceding trading day during which a sale occurred; or (ii) if such
Common Stock is not traded on an exchange but is quoted on Nasdaq or a successor
quotation system, (1) the closing price (if the Company's Common Stock is then
listed as a National Market Issue under the Nasdaq National Market) or (2) the
mean between the closing representative bid and asked prices (in all other
cases) for the Company's Common Stock on the trading day previous to such date
as reported by Nasdaq or such successor quotation system; or (iii) if such
Common Stock is not publicly traded on an exchange and not quoted on Nasdaq or a
successor quotation system, the mean between the closing bid and asked prices
for the Company's Common Stock, on the trading day previous to such date, as
determined in good faith by the Board of Directors of the Company; or (iv) if
the Company's Common Stock is not publicly traded, the fair market value
determined in good faith by the Board of Directors of the Company.
3. Payor may prepay this Note in whole or in part at any time or
from time to time, without penalty or additional fees, provided that Payor pays
all accrued interest due with respect to such principal prepayment at the time
of such prepayment.
4. At the option of the holder hereof, this Note shall be
immediately due and payable, without notice or demand, upon the occurrence at
any time of any of the following events of default:
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Pages 11 of 24
4.1 One Hundred Twenty (120) days following the termination of
Payor's Employment Agreement as a result of Payor's death;
4.2 The making of an assignment for the benefit of creditors of
Payor, or the appointment of a receiver for all or substantially all
of Payor's property or the filing by Payor of a petition in bankruptcy
or other similar proceeding under law for the relief of creditors; or
4.3 The filing against Payor of a petition in bankruptcy or
other similar proceeding under law for relief of debtors, and such
petition is not vacated or discharged within sixty (60) days after the
filing thereof.
5. This Note is secured by a Stock Pledge Agreement of even date
herewith. This Note is a non-recourse obligation of Payor. The Holder's remedies
in the event of a default by Payor are limited to those contained in the Stock
Pledge Agreement.
6. Presentment, demand, protest, notices of protest, dishonor and
nonpayment of this Note and all notices of every kind (other than those
specifically provided for in this Note) are hereby waived. No single or partial
exercise of, or forbearance from exercising, any power hereunder shall preclude
other or further exercises thereof or the exercise of any other power. No delay
or omission on the part of the holder hereof in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this Note.
7. This Note shall be governed by and construed in accordance with
the laws of the State of California.
-------------------------------------
EUGENE J. MORA
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Page 12 of 24
EXHIBIT (b)
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement is entered into as of the 20th day of
April, 1995, by and between Eugene J. Mora ("Debtor"), and AMSERV HEALTHCARE
INC., a Delaware corporation ("Creditor").
A. In connection with the entering into of this Stock Pledge
Agreement, upon exercise of certain stock options, on April 18, 1995 Debtor
purchased from Creditor 67,562 shares ("67,562 Shares") of the Common Stock of
Creditor for a total purchase price of $154,999, all of which has been paid in
cash, and on April 20, 1995 Debtor purchased 110,000 shares ("110,000 Shares")
of Common Stock of Creditor, of which $1,100 has been paid in cash and the
balance of $198,440 is evidenced by a Promissory Note ("Note") executed by
Debtor to Creditor of even date herewith.
B. The parties hereto desire to secure the repayment of said Note
with a pledge of both the 67,562 Shares and the 110,000 Shares (collectively,
"Pledged Shares").
WHEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Grant of Security Interest. Debtor hereby grants to Creditor a
--------------------------
security interest pursuant to the California Uniform Commercial Code in all of
the Pledged Shares to secure the repayment of said Note and any and all
obligations under this Stock Pledge Agreement. Debtor is hereby delivering
stock certificates representing the Pledged Shares to Creditor for purposes of
perfecting the security interest. Such stock certificates will be legended to
reflect that the Pledged Shares are subject to this Stock Pledge Agreement.
2. Partial Release. The 67,562 Shares shall be released from the
---------------
terms of this Stock Pledge Agreement and certificates representing the 67,562
Shares shall be returned to Debtor upon a material breach by Creditor of any
financial obligations to Debtor under any Employment Agreement, Consulting
Agreement or other agreements between Debtor and Creditor, which breach remains
uncured for a period of thirty (30) days after receipt of written notice of such
default by Creditor. All or a portion of the 110,000 Shares shall be released
from the terms of the Stock Pledge Agreement and certificates representing such
released Pledged Shares shall be returned to Debtor in connection with the
prepayment of all or a portion of the Note. The amount of the 110,000 Shares to
be released shall be equal to the principal amount being repaid divided by
$1.804 per shares (the option exercise price on the 110,000 Shares less $.01 per
share which was paid in cash), provided that all accrued interest due with
respect to the principal amount being prepaid shall be paid on the date of the
prepayment. All remaining Pledged Shares shall be released to Debtor upon full
payment of the Note together with interest due thereon.
3. Default by Debtor. In the event of any default by Debtor under
-----------------
said Note
<PAGE>
Page 13 of 24
or this Stock Pledge Agreement, the full amount of unpaid principal and interest
owed by Debtor under the Note shall become immediately due and payable, and
Creditor shall have the right to take the Pledged Shares in repayment of said
Note, and the right to sell the Pledged Shares at public or private sale.
Creditor shall have no right to recover from Debtor any deficiency if the net
proceeds from such sales are less than the unpaid balance owed under said Note.
Any excess, after payment of expenses incident to such sales, in such net
proceeds shall be forwarded to Debtor.
4. Recapitalization of the Corporation. In the event of any
-----------------------------------
recapitalization of Creditor, whether by stock split, merger, consolidation,
sale of assets, exchange of stock, or any other manner whatsoever, Creditor's
security interest as set forth herein shall automatically without need of any
further action attach to the stock or property into which the Pledged Shares
have been converted.
5. Rights of Shareholder. So long as no default occurs under said
---------------------
Note or this Stock Pledge Agreement, Debtor shall be entitled to receive all
dividends paid on the Pledged Shares, to vote the Pledged Shares in all matters,
and to otherwise be entitled to all rights of ownership of the Pledged Shares;
provided, however, notwithstanding the foregoing, Creditor shall retain
possession of the Pledged Shares and any transfer or grant of a security
interest in the Pledged Shares by Debtor shall at all times remain subject and
subordinate to Creditor's prior security interest; provided, further, that
Debtor shall not vote the Pledged Shares for any plan to terminate, liquidate,
dissolve, merge, consolidate, reorganize, or otherwise alter the form of
Creditor, or to authorize any stock dividends or to alter or amend the
Certificate of Incorporation, without first receiving prior written consent from
Creditor.
6. Securities Laws. Debtor acknowledges that various federal and
---------------
state securities laws may prohibit or prevent the advertising for sale of the
Pledged Shares as required by a public sale as described in Paragraph 3 hereof.
Therefore, Debtor consents to a private sale by Creditor upon the occurrence of
an event of default and expressly acknowledges that such a private sale is
commercially reasonable, given the nature and circumstances of the transaction
contemplated by this Stock Pledge Agreement.
7. Waiver. Presentment, demand, protest, notices of protest,
------
dishonor and nonpayment of the Note or under this Stock Pledge Agreement and all
notices of every kind (other than those specifically provided for herein or in
the Note) are hereby waived. No single or partial exercise of, or forbearance
from exercising, any power hereunder shall preclude other or further exercises
thereof or the exercise of any other power. No delay or omission on the part of
the holder of the Note in exercising any right thereunder or hereunder shall
operate as a waiver of such right or of any other right under the Note or
hereunder.
8. Governing Law. This Stock Pledge Agreement shall be governed by
-------------
and construed in accordance with the laws of the State of California.
<PAGE>
Page 14 of 24
9. Miscellaneous. The rights of Creditor hereunder shall inure to
-------------
the benefit of its successors and assigns, and the obligations of Debtor
hereunder shall bind its successors and assigns.
IN WITNESS WHEREOF, the parties hereto have signed this Stock Pledge
Agreement as of the date set forth above.
_______________________________________________
Debtor
_______________________________________________
Creditor
<PAGE>
Page 15 of 24
EXHIBIT (c)
VOTING AGREEMENT
----------------
This Voting Agreement (this "Agreement") is made as of April 7, 1995 by and
among NORTH CENTRAL PERSONNEL, INC., an Ohio corporation ("NCP") and AMSERV
HEALTHCARE INC., a Delaware corporation (the "Company").
WHEREAS, NCP will acquire 426,794 shares (the "Shares") of the Class A
Redeemable Preferred Stock, par value $.01 per share, of the Company (the
"Preferred Stock") pursuant to a Stock Purchase Agreement, dated as of April 7,
1995 ("Stock Agreement");
WHEREAS, NCP and the Company desire to provide greater certainty with
respect to their future relationships including certain restrictions on the
shares of Preferred Stock;
WHEREAS, the Stock Agreement contemplates that this Agreement be executed
and delivered by the parties hereto contemporaneously with the execution and
delivery of the Stock Agreement and as a condition to effectuating the Stock
Agreement; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
SECTION 1.01 Representations and Warranties of NCP. NCP hereby
represents and warrants to the Company as follows:
(a) Authorization of NCP. The execution, delivery and
--------------------
performance of this Agreement and all other actions relating hereto by NCP
have been duly and validly authorized by the Board of Directors of NCP.
This Agreement to be signed by NCP constitutes validly executed and
delivered and binding obligations of NCP enforceable in accordance with its
terms.
(b) Consents; Conflicts. Neither the execution nor the delivery
-------------------
of this Agreement nor the consummation of the transactions contemplated
hereby, nor compliance with any of the provisions hereof will (i) conflict
with or result in a breach of the Certificate of Incorporation or Bylaws of
NCP, or (ii) to NCP's knowledge, violate any statute, law, rule or
regulation or any order, writ, injunction or decree of any court or
governmental authority or (iii) violate or conflict with or constitute a
default under (or give rise to any right of termination, cancellation or
acceleration under) any material agreement or writing of any nature to
which NCP is bound. Except as otherwise described herein,
<PAGE>
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no consent, approval or authorization of, or designation, declaration or
filing with any governmental authority or other persons or entities on the
part of NCP is required in connection with the execution or delivery of
this Agreement or the consummation of the transactions contemplated hereby.
SECTION 1.02 Representations and Warranties of the Company. The Company
hereby represents and warrants to NCP as follows:
(a) Authorization of the Company. The execution, delivery and
----------------------------
performance of this Agreement and all other actions relating hereto by the
Company have been duly and validly authorized by the Board of Directors of
the Company. This Agreement to be signed by the Company constitutes
validly executed and delivered and binding obligations of the Company
enforceable in accordance with its terms.
(b) Consents; Conflicts. Neither the execution and delivery of
-------------------
this Agreement nor the consummation by the Company of the transactions
contemplated hereby, nor compliance with any of the provisions hereof will:
(i) conflict with or result in a breach of the Certificate of Incorporation
or Bylaws of the Company; (ii) violate any statute, law, rule or regulation
or any order, writ, injunction or decree of any court or governmental
authority; or (iii) violate or conflict with or constitute a default under
(or give rise to any right of termination, cancellation or acceleration
under) any material agreement or writing of any nature to which the Company
is a party or by which it or its assets or properties may be bound. Except
as otherwise described herein, no consent, approval, authorization of, or
designation, declaration or filing with any governmental authority or other
persons or entities on the part of the Company is required in connection
with the execution or delivery of this Agreement or the consummation of the
transactions contemplated hereby.
ARTICLE II
LIMITATIONS AND RESTRICTIONS
SECTION 2.01 Voting; Impairment. NCP agrees that during the term of
this Agreement, at every meeting of stockholders of the Company and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company, NCP will vote all of the Shares in accordance with
the recommendations of the Board on all matters with respect to possible change
in contests transactions, change in Board composition contests and Board
elections, including but not limited to, consent, proxy and stockholder
solicitations. Concurrent with the execution of this Agreement, NCP agrees to
deliver to the Company a proxy (which is coupled with an interest) in the form
of EXHIBIT A (the "Proxy"), which shall be irrevocable to the extent provided in
Section 212 of the Delaware General Corporation Law, covering all of the Shares.
Notwithstanding this Section, nothing herein shall require NCP to take any
action which would directly and adversely impair the priority or redemption
rights of the Preferred Stock. In the event of any such action, the Board will
promptly notify NCP.
SECTION 2.02 Transfer of Shares. Any transferee of any shares of
the Preferred
<PAGE>
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Stock takes such shares of Preferred Stock subject to this Agreement and the
Proxy. In the event NCP transfers any shares of Preferred Stock, such transferee
shall be subject to and bound by this Agreement and the Proxy as if such
transferee actually executed a copy of this Agreement.
SECTION 2.03 Effect of Non-Compliance. No action or inaction, sale,
purchase or other acquisition or assignment, transfer, grant of an option with
respect to or other disposition of any interest in (or agreement, arrangement or
understanding with respect to the foregoing) any of the Preferred Stock in
violation of the provisions of this Agreement shall be valid; and the Company
shall not transfer such Preferred Stock on the books of the Company, nor shall
such Preferred Stock be entitled to vote during the period of any violation of
this Agreement. Nothing in the preceding sentence shall waive or deprive the
Company of any other rights or remedies it may have in this Agreement or at law
for any sale of Preferred Stock in violation of this Agreement. The above
disqualifications shall be in addition to and not in lieu of any other remedies,
legal or equitable, to enforce these provisions.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 Board Action. For purposes of this Agreement all
references in this Agreement to any recommendation, action, consent, invitation,
approval, determination, request or waiver by the Board shall mean
recommendation, action, consent, invitation, approval, determination, request or
waiver which is authorized by a majority of the directors or any committee so
delegated by the Board. Unless otherwise determined by the Board, it shall also
mean action, consent, invitation, approval, determination, request or waiver
which is authorized by a majority of the directors who serve on the Executive
Committee of the Board.
SECTION 3.02 Interpretation. For all purposes of this Agreement, the
term Shares of Preferred Stock shall include any securities of an issuer
entitled to vote for the election of directors of an issuer which securities the
holders of the Preferred Stock shall have received or as a matter of right be
entitled to receive as a result of (i) any capital reorganization or
reclassification of the capital stock of the Company, (ii) any consolidation,
merger or share exchange of the Company with or into another corporation or
(iii) any sale of all or substantially all the assets of the Company.
SECTION 3.03 Enforcement.
(a) The Company and NCP each acknowledge and agree that irreparable
damage would occur if any of the provisions of this Agreement were not
complied with in accordance with their specific terms. Accordingly, each of
the parties will be entitled to any injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically its provisions in
any court of the United States or any state having jurisdiction, this being
in addition to any other remedy to which they may be entitled at law or in
equity.
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(b) No failure or delay on the part of any party in the exercise of
any power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
SECTION 3.04 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to its subject matter and supersedes
all prior and contemporaneous agreements and understandings, inducements or
conditions, expressed or implied, oral or written, except as herein contained.
This Agreement may be amended only by a written instrument duly executed by the
parties.
SECTION 3.05 Severability. If any provision of this Agreement is held by
a court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of the
parties that they would have executed the remaining provisions without including
any that may be declared unenforceable.
SECTION 3.06 Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provision of this
Agreement.
SECTION 3.07 Counterparts. This Agreement may be executed in two or more
counterparts, and each such executed counterpart will be an original instrument.
SECTION 3.08 Notices. All notices, claims, certificates, requests,
demands and other communications ("Communication") hereunder shall be in writing
and shall be deemed to have been duly given when (i) mailed by registered or
certified mail, postage prepaid, (ii) sent by reliable overnight courier, or
(iii) telecopied and followed immediately by copy mailed, addressed as follows:
If to the Company, to:
AMSERV HEALTHCARE INC.
3252 Holiday Court, Suite 204
La Jolla, California 92037
Attn: Eugene J. Mora, Chairman
Telecopy No.: (619) 597-1001
with a copy to:
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60601-3693
Attn: Jeffrey R. Patt, Esq.
Telecopy No.: (312) 902-1061
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Page 19 of 24
If to NCP to:
North Central Personnel, Inc.
713 South Main Street
Mansfield, Ohio 44907
Attn: Diane Gurik, President
with a copy to:
70 Park Avenue West
Mansfield, Ohio 44902
Telecopy No.: (419) 525-3810
Attn: Bud Vetter, Esq.
or to such other addresses as the person to whom notice is to be given may have
furnished to the other in writing in accordance herewith. A Communication given
by any other means shall be deemed duly given when actually received by the
addressees.
SECTION 3.09 Assignment No Third-Party Beneficiaries. Except as
expressly provided in this Agreement, this Agreement and the rights, duties and
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the Company. Any other assignment or delegation of
rights, duties or obligations hereunder made without the prior written consent
of the Company shall be void and of no effect. If any party assigns any rights
or duties hereunder pursuant to the provisions of this Agreement, such party
shall not be relieved of its obligations hereunder and such party
unconditionally guarantees the performance by the assignee of such party's
obligation hereunder. This Agreement is intended for the benefit of and is
enforceable by the Company. This Agreement is not intended, and shall not,
confer any rights or benefits on any persons other than the parties hereto.
Notwithstanding the foregoing, a transferee who acquires any shares of the
Preferred Stock will succeed and be subject to the rights and obligations of the
transferor under this Agreement.
SECTION 3.10 Term. This Agreement shall continue in full force and
effect until the earlier to occur of: (a) there are no shares of Preferred Stock
outstanding or (b) the tenth anniversary of the date of this Agreement.
SECTION 3.11 Governing Law. This Agreement shall be construed under and
in accordance with the laws of the State of Delaware. If a party hereunder shall
default on any term under this Agreement, the other party may enforce this
Agreement by specific performance; or such party shall have any and all other
remedies available to it at law or in equity.
<PAGE>
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first referred to above.
AMSERV HEALTHCARE INC. NORTH CENTRAL PERSONNEL, INC.
__________________________ ________________________________
By: Eugene Mora By: Diane Gurik
Its: Chairman Its: President
<PAGE>
Page 21 of 24
EXHIBIT A
IRREVOCABLE PROXY TO VOTE
AMSERV HEALTHCARE INC.
The undersigned stockholder (the "Stockholder") of AMSERV HEALTHCARE INC.,
a Delaware corporation (the "Company"), hereby irrevocably (to the full extent
permitted by Section 212 of the Delaware General Corporation Law) appoints
Eugene Mora, as agent for the Board of Directors of the Company, as the sole and
exclusive attorney and proxy of the Stockholder, with full power of substitution
and resubstitution, to vote and exercise all voting and related rights (to the
full extent that the undersigned is entitled to do so) with respect to the
426,794 shares of Class A Redeemable Preferred Stock, $.01 par value (the
"Preferred Stock") of the Company and any and all other shares or securities of
the Company issued or issuable in respect thereof on or after the date hereof
(collectively, the "Shares") in accordance with the terms of this Proxy. The
Shares beneficially owned by the Stockholder as of the date of this Proxy are
listed on the final page of this Proxy. Upon the Stockholder's execution of this
Proxy, any and all prior proxies given by the Stockholder with respect to any
Shares are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Shares until after the Expiration Date (as defined
below).
This proxy is irrevocable (to the extent provided in Section 212 of the
Delaware Corporation law), coupled with an interest and is granted pursuant to
that certain Voting Agreement of even date herewith by and between the Company
and the Stockholder, and is granted in consideration of Company entering into
that certain Amendment No. 2 to the Asset Purchase Agreement of even date
herewith, among the Company, the Stockholder and AMSERV HEALTHCARE OF OHIO, INC.
and the Stock Purchase Agreement of even date herewith between the Company and
the Stockholder. As used herein the term "Expiration Date" shall mean the
earlier to occur of (i) there are no shares of Preferred Stock outstanding or
(ii) the tenth anniversary of this Irrevocable Proxy.
The attorney and proxy named above is hereby authorized and empowered by
the Stockholder, at any time prior to the Expiration Date, to act as the
Stockholder's attorney and proxy to vote the Shares, and to exercise all voting
rights of the Stockholder with respect to the Shares (including, without
limitation, the power to execute and deliver written consents pursuant to
Section 228 of the Delaware General Corporation Law), at every annual, special
or adjourned meeting of the stockholders of the Company and in every written
consent in lieu of such meeting in accordance with the recommendations of the
Board of Directors of the Company on all matters with respect to possible change
in control contests, change in Board composition contests and Board elections,
including but not limited to, consent, proxy and stockholder solicitations.
Any obligation of the Stockholder hereunder shall be binding upon the
successors and assigns of the Stockholder.
<PAGE>
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This proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law).
Dated: April 7, 1995 NORTH CENTRAL PERSONNEL, INC.
______________________________
By: Diane Gurik
Its: President
Shares beneficially owned:
426,794 shares of Class A Redeemable
Preferred Stock
<PAGE>
Page 23 of 24
EXHIBIT (d)
RESCISSION AGREEMENT
--------------------
This RESCISSION AGREEMENT (this "Agreement") is made as of May 12, 1995, by
and between NORTH CENTRAL PERSONNEL, INC. an Ohio corporation ("NCP") and AMSERV
HEALTHCARE INC., a Delaware corporation ("AMSERV").
WHEREAS, NCP acquired 426,974 shares of AMSERV Class A Redeemable Preferred
Stock, par value, $.01 per share (the "Preferred Stock") pursuant to that
certain Stock Purchase Agreement by and between AMSERV and NCP, dated as of
April 7, 1995 (the "Stock Agreement").
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
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 each desire to rescind, revoke and annul the Voting
Agreement and the Proxy and release the other party from their obligations
thereunder.
WHEREAS, NCP and AMSERV each desire to treat the Preferred Stock held by
NCP as not outstanding voting securities only for purposes of the "Renewed
Consent Solicitation" (defined below).
WHEREAS, AMSERV desires to pay the reasonable legal fees and expenses
incurred by NCP in connection with this Agreement, the Stock Agreement and the
litigation which gave rise to the Standstill (defined below).
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. NCP and AMSERV hereby rescind, revoke and annul the Voting Agreement
and the Proxy, and each of NCP and AMSERV releases the other party from its
obligations thereunder.
2. NCP and AMSERV agree that the Certificate of Designation pursuant to
which the Preferred Stock was designated will be amended as soon as practicable
after the date hereof (but in no event later than May 22, 1995) to provide that
the Preferred Stock shall not have any voting rights with respect to the
"Renewed Consent Solicitation" (as defined in the Standstill Agreement between
AMSERV and Stockbridge Investment Partners, Inc. (the "Standstill")).
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3. AMSERV agrees to pay NCP's reasonable legal fees and expenses incurred
by NCP in connection with this Agreement and the Stock Agreement and the
litigation which gave rise to the Standstill.
4. 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 by a written instrument duly
executed by the parties hereto.
5. 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 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
