<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 1995
------------------------------------------------
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________________ to ______________________
Commission file number 0-8547
----------------------
AMSERV HEALTHCARE INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in charter)
DELAWARE 94-1627467
- ------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
3252 Holiday Court, #204, La Jolla, CA 92037
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip code)
(Registrant's telephone number, including area code) (619) 597-1000
-----------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X . No _____.
-----
Common stock, $.01 par value, 3,150,838 shares outstanding as of May 8, 1995.
<PAGE>
AMSERV HEALTHCARE INC.
I N D E X
__________________________
<TABLE>
<CAPTION>
Page
<S> <C>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
A. CONDENSED CONSOLIDATED BALANCE SHEETS,
MARCH 31, 1995 AND JUNE 30, 1994 3
B. CONDENSED CONSOLIDATED STATEMENTS OF
OPERATIONS FOR THE THREE AND NINE MONTH
PERIODS ENDED MARCH 31, 1995 AND 1994 4
C. CONDENSED CONSOLIDATED STATEMENTS OF
CASH FLOWS FOR THE NINE MONTH PERIODS
ENDED MARCH 31, 1995 AND 1994 5
D. NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS 6 - 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS 8
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS 9
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 9
SIGNATURES 10
</TABLE>
2
<PAGE>
PART I - FINANCIAL INFORMATION
AMSERV HEALTHCARE INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
-------------------------------------
<TABLE>
<CAPTION>
March 31, June 30,
1995 1994
----------- -----------
(unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents....................................... $ 963,049 $ 643,987
Marketable securities, net of unrealized losses of
$44,941 and $40,510............................................ 1,844,445 676,615
Customer accounts receivable, net of allowance for
doubtful accounts of $181,697 and $237,687..................... 1,142,796 1,964,903
Federal income tax receivable................................... - 326,628
Other current assets............................................ 68,127 335,389
----------- -----------
Total current assets......................................... 4,018,417 3,947,522
PROPERTY & EQUIPMENT, NET........................................ 393,662 252,234
INTANGIBLE ASSETS, NET........................................... 1,766,810 2,047,540
OTHER ASSETS..................................................... 382,204 311,090
----------- -----------
$ 6,561,093 $ 6,558,386
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable................................................ $ 15,808 $ 70,735
Accrued payroll and related taxes............................... 370,734 580,035
Net liabilities of discontinued operations...................... 370,157 116,718
Other current liabilities....................................... 70,278 277,928
Current maturities of note payable.............................. 333,334 333,334
----------- -----------
Total current liabilities................................... 1,160,311 1,378,750
----------- -----------
LONG-TERM LIABILITIES:
Note payable.................................................... 499,999 666,666
Other........................................................... 159,322 165,000
----------- -----------
Total long-term liabilities................................. 659,321 831,666
SHAREHOLDERS' EQUITY:
Preferred stock, $.01 par value; authorized 3,000,000 shares;
none outstanding
Common stock, $.01 par value, authorized 15,000,000 shares;
3,087,794 shares issued....................................... 30,877 30,877
Treasury stock; 143,268 shares; at cost.......................... (296,053) (296,053)
Additional paid-in capital...................................... 6,373,936 6,373,936
Retained earnings (deficit)...................................... (1,367,299) (1,760,790)
----------- -----------
Total shareholders' equity.................................. 4,741,461 4,347,970
----------- -----------
$ 6,561,093 $ 6,558,386
=========== ===========
</TABLE>
(See Notes to Condensed Consolidated Financial Statements)
3
<PAGE>
AMSERV HEALTHCARE INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE AND NINE MONTHS ENDED MARCH 31, 1995 AND 1994
-----------------------------------------------------------
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
March 31, March 31,
------------------------ ------------------------
1995 1994 1995 1994
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
NET SALES....................................................... $2,899,543 $1,853,074 $8,402,485 $5,270,963
OPERATING EXPENSES:
Selling, general and administrative............................ 2,693,274 1,849,216 7,783,797 5,184,262
Depreciation and amortization.................................. 110,939 92,582 330,806 277,067
---------- ---------- ---------- ----------
Total Expenses............................................. 2,804,213 1,941,798 8,114,603 5,461,329
---------- ---------- ---------- ----------
OPERATING INCOME (LOSS)......................................... 95,330 (88,724) 287,882 (190,366)
Interest Expense................................................ (14,422) - (50,726) -
Interest Income................................................. 35,617 26,580 66,599 67,173
---------- ---------- ---------- ----------
INCOME (LOSS) FROM CONTINUING OPERATIONS
BEFORE INCOME TAXES............................................ 116,525 (62,144) 303,755 (123,193)
Income Tax Provision (Benefit).................................. 32,000 (17,672) 79,000 (35,034)
---------- ---------- ---------- ----------
INCOME (LOSS) FROM CONTINUING OPERATIONS........................ 84,525 (44,472) 224,755 (88,159)
DISCONTINUED OPERATIONS:
Loss from discontinued operations (less applicable
income tax benefit of $34,328 and $266,266).................... - (56,858) - (496,111)
Gain on disposal of discontinued operations (less applicable
income tax provision of $29,777)............................... - - 168,736 -
---------- ---------- ---------- ----------
NET INCOME (LOSS)............................................... $ 84,525 $ (101,330) $ 393,491 $ (584,270)
========== ========== ========== ==========
INCOME (LOSS) PER SHARE:
Income (Loss) from Continuing Operations....................... $.03 $ (.01) $ .07 $ (.03)
Loss from Discontinued Operations.............................. $. - $ (.02) $ . - $ (.16)
Gain on Disposal of Discontinued Operations.................... $. - $ . - $ .05 $ . -
Net Income (Loss).............................................. $.03 $ (.03) $ .12 $ (.19)
WEIGHTED AVERAGE COMMON SHARES
OUTSTANDING................................................... 3,132,660 2,944,526 3,132,660 2,944,526
========== ========== ========== ==========
</TABLE>
(See Notes to Condensed Consolidated Financial Statements)
4
<PAGE>
AMSERV HEALTHCARE INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED MARCH 31, 1995 AND 1994
-------------------------------------------------
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
March 31,
----------------------------
1995 1994
----------- ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Cash received from customers............................. $ 13,213,288 $ 14,224,953
Cash paid to suppliers and employees..................... (12,346,290) (14,841,163)
Interest received........................................ 76,338 50,750
Interest paid............................................ (37,115) -
Income taxes paid........................................ (145,884) (5,294)
Income taxes refunded.................................... 330,826 513,861
----------- ------------
Net Cash Provided By (Used In) Operating Activities....... 1,091,163 (56,893)
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of discontinued operations............ 813,941 -
Proceeds from sale of marketable securities.............. 405,000 -
Cash received on notes receivable........................ 50,411 131,250
Purchase of property and equipment....................... (256,028) (9,044)
Purchase of marketable securities........................ (1,577,260) (497,125)
Proceeds from sale of property & equipment............... 31,851 2,884
----------- ------------
Net Cash Used In Investing Activities..................... (532,085) (372,035)
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of Note Payable................................. - 130,587
Repayment of Notes Payable............................... (240,016) -
----------- ------------
Net Cash Provided By (Used In) Financing Activities....... (240,016) 130,587
----------- ------------
Net Increase (Decrease) in Cash and Cash Equivalents..... 319,062 (298,341)
Cash and Cash Equivalents, Beginning of Period............ 643,987 1,208,170
----------- ------------
Cash and Cash Equivalents, End of Period.................. $ 963,049 $ 909,829
=========== ============
</TABLE>
(See Notes to Condensed Consolidated Financial Statements)
5
<PAGE>
AMSERV HEALTHCARE INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------------
1. ADJUSTMENTS
In the opinion of management of the Company, the accompanying unaudited
condensed consolidated financial statements reflect all adjustments necessary
(which are of a normal recurring nature) to present fairly the Company's
financial position as of March 31, 1995, and the results of its operations for
the three and nine months ended March 31, 1995 and 1994 and its cash flows for
the nine months ended March 31, 1995 and 1994. Information included in the
condensed consolidated balance sheet as of June 30, 1994 has been derived from
the Company's Form 10-K for the year ended June 30, 1994 ("1994 Form 10-K").
The unaudited condensed consolidated financial statements contained herein
should be read in conjunction with the consolidated financial statements and
notes contained in the Company's 1994 Form 10-K.
2. EARNINGS PER SHARE
Earnings per share for the three and nine month periods ended March 31, 1995 and
1994 are based on the weighted average number of common and common stock
equivalent shares outstanding. Certain stock options were not included in the
computation of earnings per share because their effect would be antidilutive.
Earnings per share assuming full dilution are the same as primary earnings per
share.
3. SUPPLEMENTAL SCHEDULE TO CONSOLIDATED STATEMENTS OF CASH FLOWS
The reconciliation of net income (loss) to net cash provided by (used in)
operating activities is summarized below:
<TABLE>
<CAPTION>
Nine Months Ended
March 31,
-------------------------------
1995 1994
----------- ---------
<S> <C> <C>
Net Income (Loss)............................................... $ 393,491 $(584,270)
Adjustments to Reconcile Net Income (Loss) to Net Cash Provided
By (Used In) Operating Activities:
Depreciation and amortization.................................... 330,806 413,025
Write-off of intangibles......................................... - 137,616
Unrealized loss on marketable securities......................... 4,431 22,125
Other non-cash expenses.......................................... 32,680 5,130
Changes in Assets and Liabilities:
Accounts receivable............................................... 822,107 (419,201)
Other assets...................................................... 143,174 (15,459)
Accounts payable.................................................. (54,927) (25,195)
Income taxes..................................................... 105,942 207,267
Accruals on disposal of discontinued operations................... (560,502) -
Other liabilities................................................. (126,039) 202,069
----------- ---------
Net Cash Provided By (Used In) Operating Activities............. $1,091,163 $ (56,893)
=========== =========
</TABLE>
There were no material non-cash financing or investing activities for the nine
months ended March 31, 1995 and 1994.
6
<PAGE>
AMSERV HEALTHCARE INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------------
4. INTANGIBLE ASSETS
Intangible assets acquired in acquisitions consist of the following:
<TABLE>
<CAPTION>
March 31, June 30,
1995 1994
---------- ----------
<S> <C> <C>
Excess of cost over acquired net assets... $1,588,063 $1,588,063
Assembled work force...................... 497,154 497,154
Accreditation and training programs....... 502,846 502,846
Covenant not to compete................... 525,000 525,000
---------- ----------
3,113,063 3,113,063
Less: Accumulated Amortization 1,346,253 1,065,523
---------- ----------
$1,766,810 $2,047,540
========== ==========
</TABLE>
5. DISCONTINUED OPERATIONS
On November 9, 1994, the Company sold substantially all of the fixed and
intangible assets of its temporary nursing services business for $814,000 in an
all cash transaction, resulting in a gain of $169,000, net of income taxes. The
consolidated statement of operations for the three and nine month periods ended
March 31, 1995 and 1994 excludes sales and expenses for its temporary nursing
services business from captions applicable to continuing operations. Revenues
from the discontinued operation were $3,988,696 and $9,373,191 for the nine
months ended March 31, 1995 and 1994, respectively.
6. SUBSEQUENT EVENTS
On April 6, 1995, the Company signed an amendment to the Asset Purchase
Agreement dated June 10, 1994 with North Central Personnel, Inc. The amendment
exchanged the Company's promissory note to North Central Personnel, Inc. with a
principal balance of $833,333, as of March 31, 1995, and the related accrued
interest for 426,794 shares of the Company's voting Class A Redeemable Preferred
Stock, $.01 par value. The preferred shares pay no dividends, and may be
redeemed at the option of the holder, in specified installments, for cash at a
redemption price equal to $2.00 per share on May 29, 1995, November 29, 1995,
May 29, 1996, November 29, 1996 and May 29, 1997. All of the remaining shares
become redeemable in the event of default or change of control. The amendment
also provides for a maximum earnout of $2,000,000 in consideration for a minimum
earnout of $1,600,000 and an earnout advance in the amount of $500,000, which
was paid in cash on April 6, 1995. The earnout advance and all future earnout
payments will be accounted for as additional purchase price of North Central
Personnel, Inc.
On April 18, 1995, the Company's Chief Executive Officer exercised options for
67,562 shares of common stock for $154,997 in cash, according to the Company's
Employee Stock Option Plan. On April 20, 1995, the Company accepted a non-
recourse promissory note in the amount of $198,440, bearing interest at a rate
of 10% per annum, and $1,100 in cash for the exercise of options for 110,000
shares of common stock by the Chief Executive Officer in accordance with a stock
option agreement dated February 27, 1987 and amended on January 15, 1988. The
promissory note is secured by all 177,562 shares purchased by the Company's
Chief Executive Officer, including those purchased for cash.
7
<PAGE>
AMSERV HEALTHCARE INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
LIQUIDITY AND CAPITAL RESOURCES
Cash, cash equivalents and marketable securities increased $1,486,892 during the
first nine months of fiscal year 1995. This increase is the result of the sale
of the temporary nursing services business, the collection of related accounts
receivable and a federal income tax refund. The Company's balance sheet remains
strong with a current ratio of 3.5 to 1. In April 1995, the Company amended its
original Asset Purchase Agreement with North Central Personnel, Inc., by
exchanging an interest bearing (7%) promissory note for voting Class A
Redeemable Preferred Stock, and making an earnout advance in the amount of
$500,000 in cash. The Company believes that its present working capital
position will be sufficient to meet its anticipated cash requirements for
operations, and to move forward with its expansion program.
OPERATING RESULTS
Net sales from continuing operations for the three and nine month periods ended
March 31, 1995 increased $1,046,469, or 56%, and $3,131,522, or 59%,
respectively, over the same periods of the prior fiscal year. Higher sales are
due to the June 10, 1994, acquisition of North Central Personnel and the opening
of the Union City office in New Jersey, which has continued to grow steadily
since its start-up in October 1994.
Selling, general and administrative expenses for the three and nine months ended
March 31, 1995 increased $844,058 and $2,599,535, respectively, compared to the
same periods of the prior year. These increases were primarily the result of
the direct variable costs associated with an increase in net sales and the
acquisition of North Central Personnel.
Depreciation and amortization for the three and nine months ended March 31,
1995, increased $18,357, or 20%, and $53,739, or 19%, respectively, over the
same period of fiscal 1994. This increase is the result of depreciation on
property and amortization of goodwill and intangible assets acquired in the
acquisition of North Central Personnel.
Interest expense of $14,422 and $50,726, respectively, for the three and nine
month periods during fiscal 1995 are due to interest on the note issued in the
acquisition of North Central Personnel. There was no interest expense during
the three and nine month periods of fiscal 1994.
The net income for the nine months ended March 31, 1995 includes an after-tax
gain of $168,736 as a result of the sale of the Company's temporary nursing
services business. An after-tax loss from discontinued operations of $56,858
and $496,111 for the three and nine months ended March 31, 1994 is included in
the net loss for fiscal 1994.
8
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On April 27, 1995, Stockbridge Investment Partners, Inc., filed a complaint
against AMSERV HEALTHCARE INC. and its Board of Directors, Melvin L. Katten,
Eugene J. Mora, Michael A. Robinton, George A. Rogers and Ben L. Spinelli in the
Delaware Court of Chancery. The complaint alleges a breach of fiduciary duty
was committed by the directors of AMSERV HEALTHCARE INC. by (a) delaying
initiation of the consent solicitation by holding out the possibility of a
negotiated transaction with plaintiff; (b) adopting a bylaw that purports to
give the directors the power to postpone the setting of a record date for a
stockholder consent solicitation; (c) exchanging 426,794 shares of voting
preferred stock for a promissory note issued in connection with a June 1994
acquisition; (d) signing a letter of intent to acquire a healthcare services
company; and (e) accepting a non-recourse note of $198,440 from Eugene J. Mora,
AMSERV's CEO, to exercise his stock option for 110,000 shares of the Company's
common stock. The complaint seeks relief by (a) rescinding the transaction
which exchanges 426,794 shares of Class A Preferred Stock for a promissory note;
(b) rescinding the transaction which exercises 110,000 stock options by Mr.
Mora; and (c) receiving an award for plaintiff's costs and disbursements of this
action, including reasonable attorneys' and experts' fees in connection with
this complaint. The Company is engaged in settlement discussions with respect
to this action.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
1. Amendment No. 2 to Asset Purchase Agreement, dated April 7, 1995, by and
between North Central Personnel, Inc., Diane Gurik and AMSERV HEALTHCARE
OF OHIO INC.
2. Stock Purchase Agreement dated April 7, 1995 by and between AMSERV
HEALTHCARE INC. and North Central Personnel, Inc.
3. Certificate of Designations, Preferences and Rights of Class A
Redeemable Preferred Stock of AMSERV HEALTHCARE INC. dated April 7,
1995.
4. Voting Agreement and Irrevocable Proxy to Vote dated April 7, 1995 by
and between North Central Personnel, Inc. and AMSERV HEALTHCARE INC.
(b) Reports on Form 8-K:
1. A Form 8-K dated March 6, 1995, was filed with the Securities and
Exchange Commission adopting an amendment to the Company's By-laws. The
amendment ensures (i) orderly procedures for determining which
stockholders will be able to take part in a written consent action; (ii)
compliance with Rule 14a-13 of the Securities and Exchange Act of 1934;
and (iii) that any written consent action be efficiently and effectively
undertaken without disenfranchising any of the stockholders of the
Company. The amendment was filed as an exhibit to Form 8-K.
2. A Form 8-K dated March 21, 1995, was filed with the Securities and
Exchange Commission reporting a change in the Registrant's independent
auditors. The Company's decision to dismiss Deloitte & Touche LLP and
retain Ernst & Young LLP was approved by its Board of Directors at a
meeting held on March 21, 1995. A letter dated March 27, 1995, from
Deloitte & Touche LLP concerning dismissal as Registrant's principal
accountant was filed as an exhibit to Form 8-K. A Form 8-K/A was
subsequently filed on April 27, 1995 which amended the letter dated
March 27, 1995 from Deloitte & Touche LLP. The amended letter dated
April 25, 1995 from Deloitte & Touche LLP was filed as an exhibit to
Form 8-K/A.
9
<PAGE>
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 thereunto duly authorized.
AMSERV HEALTHCARE INC.
- ----------------------
Registrant
/s/ EUGENE MORA
- ------------------------------------
Eugene J. Mora May 10, 1995
Chairman and President
/s/ LORI ANDERSON
- ------------------------------------
Lori Anderson May 10, 1995
Treasurer
10
<PAGE>
AMENDMENT NO. 2 TO
ASSET PURCHASE AGREEMENT
------------------------
This Amendment No. 2 to Asset Purchase Agreement (the "Agreement") is made
and entered into this 7th day of April, 1995, by and among North Central
Personnel, Inc., an Ohio corporation (the "Seller"), Diane Gurik, its sole
stockholder and AMSERV HEALTHCARE OF OHIO INC., a Delaware corporation (the
"Purchaser"), a wholly-owned subsidiary of AMSERV HEALTHCARE INC. ("AMSERV").
W I T N E S S E T H:
-------------------
WHEREAS, as of June 10, 1994, the Seller and the Purchaser entered into the
original Asset Purchase Agreement, which was amended as of November 30, 1994
(collectively, the "Original Agreement");
WHEREAS, the Seller and Purchaser desire to amend the Original Agreement
with this Agreement;
WHEREAS, in connection herewith, the Seller is purchasing certain shares of
Preferred Stock of AMSERV, Purchaser is surrendering the Subordinated Note
issued to Seller in connection with the Original Agreement, AMSERV is providing
the Seller with a $500,000 advance against the "Earnout" (as hereinafter
defined) (the "Earnout Advance"), and AMSERV is immediately vesting all of the
stock options held by Diane Gurik; and
WHEREAS, in connection herewith, the Seller is agreeing to limit the amount
of the Earnout due to it from the Purchaser; and
WHEREAS, AMSERV is the guarantor of the Purchaser's obligations under the
Original Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual and
dependent covenants hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Section 2(b)(i) of the Agreement is hereby deleted in its
---------
entirety and replaced with the following:
(b) Earnout.
-------
(i) In addition to the amounts paid for the Purchased Assets in accordance
with subsection (a) above, Seller shall receive an earn out payment (the
"Earnout") in an amount equal to the Operating Income (as hereinafter defined)
of the Business for the three year earn out period ("Earnout Period")
immediately following the Closing Date (as hereinafter defined)
<PAGE>
less $1,500,000; provided, however, in no event shall the Earnout exceed
$500,000 and provided further, however, in no event shall the Earnout be less
than $100,000. As used herein, Operating Income shall mean (i) net sales from
the operation of the Business less cost of sales (which shall include but not be
limited to salaries and wages of field employees, the related payroll taxes,
vacation and benefits, workers' compensation, professional liability insurance,
and recruiting and advertising costs) less (ii) the operating expenses of the
Business. The operating expenses of the Business shall include all direct and
indirect expenses as reflected in financial statements currently prepared by the
Seller in accordance with generally accepted accounting principles ("GAAP") as
evidenced by Exhibit E, and shall exclude all management fees, AMSERV state and
federal franchise and income taxes, interest paid on the Note, and charges from
AMSERV, unless such charges are approved by Diane Gurik.
Section 2. Earnout Advance. In consideration for the Seller's agreement
--------- ---------------
to amend Section 2(b)(i) as set forth above, AMSERV shall pay to the Seller,
upon the execution and delivery of this Agreement, the amount of $500,000 in
immediately available funds (the "Earnout Advance").
Section 3. Full Force and Effect. All of the other terms of the Original
--------- ---------------------
Agreement not hereby amended shall remain in full force and effect.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
PURCHASER: SELLER:
AMSERV HEALTHCARE OF OHIO INC. NORTH CENTRAL PERSONNEL, INC.
- ------------------------------ ------------------------------------
By: Eugene Mora By: Diane Gurik
Its: Chairman Its: President
------------------------------------
Diane Gurik
------------------------------------
John Gurik
3
<PAGE>
STOCK PURCHASE AGREEMENT
------------------------
This Stock Purchase Agreement (the "Agreement") is made and entered into
this 7th day of April, 1995, by and among AMSERV HEALTHCARE INC., a Delaware
corporation (the "Company") and NORTH CENTRAL PERSONNEL, INC., an Ohio
corporation (the "Purchaser").
W I T N E S S E T H:
-------------------
WHEREAS, the Company desires to sell to the Purchaser, and the Purchaser
desires to buy from the Company 426,794 shares of the Company's Class A
Redeemable Preferred Stock, $.01 par value per share (the "Preferred Stock");
WHEREAS, the Purchaser and the Company are entering into this Agreement to
provide for such purchase and sale and to establish various rights and
obligations in connection therewith;
WHEREAS, in connection herewith, the Company is also amending that certain
Asset Purchase Agreement dated as of June 10, 1994 (the "Asset Agreement") among
the Company, the Purchaser and AMSERV HEALTHCARE OF OHIO INC. (the "AMSERV
OHIO"), making an advance of $500,000 against an earnout in the Asset Agreement
(the "Earnout Advance") and immediately vesting all stock options held by a
shareholder of the Purchaser; and
WHEREAS, the Company is the guarantor of the AMSERV OHIO's obligations
under the Asset Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual and
dependent covenants hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. PURCHASE AND SALE OF SHARES.
--------- ---------------------------
(a) Sale and Purchase:
-----------------
On the Closing Date (as hereinafter defined), in reliance upon the
representations, warranties and agreements of the parties, the Company shall
sell and deliver to the Purchaser, and the Purchaser shall purchase from Seller,
free and clear of all liens and encumbrances, an aggregate of 426,794 shares of
Preferred Stock (the "Shares").
<PAGE>
Section 2. PURCHASE PRICE AND PAYMENT.
--------- --------------------------
(a) Payment. In consideration for the sale and delivery of the Shares by
-------
the Company to the Purchaser, and as the full purchase price hereunder, the
Purchaser agrees to surrender to the Company the $1,000,000 promissory note from
AMSERV HEALTHCARE OF OHIO INC. to the Purchaser, dated June 10, 1994, with the
remaining principal balance of $833,333 and all accrued but unpaid interest due
as of the date hereof (the "Note") . No payments shall be due and owing to the
Purchaser with respect to interest accrued and unpaid on the Note after the date
hereof.
Section 3. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE
--------- ---------------------------------------------------------
COMPANY.
-------
As an inducement to the Purchaser to execute, deliver and perform its
obligations arising under or pursuant to this Agreement, the Company represents
and warrants to the Purchaser as follows:
(a) Organization; Standing; Power. The Company is a corporation duly
-----------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware and is qualified to conduct business under the laws of the State of
Delaware. The Company has all requisite corporate power and authority to own,
lease and operate its properties, to carry on its business as now being
conducted and to execute, deliver and perform this Agreement. The Company is
qualified to do business in each state which the nature of its business
conducted make qualification necessary and where the failure to so qualify would
have a material adverse effect on the business of the Company as a whole.
(b) 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.
(c) 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
2
<PAGE>
connection with the execution or delivery of this Agreement or the consummation
of the transactions contemplated hereby. Prior to the Closing, the Certificate
of Amendment to the Certificate of Incorporation in the Form of EXHIBIT A will
have been filed with the Secretary of State of the State of Delaware.
(d) The Shares. The Shares being issued on the date hereof have been duly
----------
authorized by all necessary corporate action on the part of the Company (no
consent or approval of stockholders being required by law), and such Shares,
upon Closing, will be validly issued, fully paid and nonassessable, and the
issuance of such Shares is not and will not be subject to preemptive rights of
any other stockholder of the Company.
(e) Litigation. There are no actions, suits, claims, investigations or
----------
legal or administrative or arbitration proceedings pending or, to the knowledge
of the Company, threatened against the Company or the transactions contemplated
hereby.
(f) Capitalization. The authorized capital of stock of the Corporation
--------------
consists of (i) 15,000,000 shares of Common Stock, $.01 par value and 2,944,526
are issued and outstanding as of March 31, 1995, (ii) 426,794 shares of
Preferred Stock, all of which will be issued in connection with this Agreement
and (iii) 2,573,206 shares of undesignated preferred stock, none of which are
issued and outstanding. No class of capital stock is entitled to preemptive
rights.
(g) Brokers or Finders. No agent, broker, investment banker, or other firm
------------------
or person, including any of the foregoing that is an Affiliate of the Company,
is or will be entitled to any broker's or finder's fee for any other
compensation or similar fee from the Company in connection with any of the
transactions contemplated by this Agreement that the Purchaser will be
responsible for.
(h) Registration Under Exchange Act. The Company has not registered the
-------------------------------
Preferred Stock as a class pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended. The Shares will not be registered as such class and such
registration is not required.
(i) Disclosure. No representation or warranty by the Company contained in
----------
this Agreement, and no statement contained in any certificate, schedule,
exhibit, list or other writing furnished to the Purchaser in connection with the
transactions contemplated by this Agreement, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. All copies of all
writings furnished to the Purchaser hereunder or in connection with the
transactions contemplated hereby are true and complete.
3
<PAGE>
Section 4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE
--------- ---------------------------------------------------------
PURCHASER.
---------
As an inducement to the Company to execute, deliver and perform its
obligations arising under or pursuant to this Agreement, the Purchaser
represents and warrants to and agrees with the Company as follows:
(a) Organization; Standing; Power. The Purchaser is a corporation duly
-----------------------------
organized, validly existing and in good standing under the laws of the State of
Ohio and is qualified to conduct business under the laws of the State of Ohio.
The Purchaser has all requisite corporate power and authority to own, lease and
operate its properties, to carry on its business as now being conducted and to
execute, deliver and perform this Agreement.
(b) Authorization of the Purchaser. The execution, delivery and
------------------------------
performance of this Agreement and all other actions relating hereto by the
Purchaser have been duly and validly authorized by the Board of Directors of the
Purchaser. This Agreement to be signed by the Purchaser constitutes validly
executed and delivered and binding obligations of the Purchaser enforceable in
accordance with its terms.
(c) 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 the Purchaser, or (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 Purchaser is bound. Except as otherwise described herein,
no consent, approval or authorization of, or designation, declaration or filing
with any governmental authority or other persons or entities on the part of the
Purchaser is required in connection with the execution or delivery of this
Agreement or the consummation of the transactions contemplated hereby. The
Purchaser owns the Note free and clear of all security interests, liens,
pledges, claims, charges, escrows, encumbrances, options, rights of first
refusal, mortgages, indentures, security agreements or other agreements,
arrangements, contracts or commitments.
(d) Litigation. There are no actions, suits, claims, investigations or
----------
legal or administrative or arbitration proceedings pending or, to the knowledge
of the Purchaser, threatened against the Purchaser or the transactions
contemplated hereby.
(e) Acquisition for Investment. The Purchaser is acquiring the Shares for
--------------------------
its own account for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof, and the Purchaser has no present
intention or plan to effect any distribution of the Shares.
4
<PAGE>
(f) Ownership of Securities. At the date hereof, except for the 20,000
-----------------------
stock options and any open market purchases Diane Gurik may have made, the
Purchaser does not beneficially own, directly or indirectly (or have any option
or other right to acquire), any securities of the Company other than the Shares
being purchased by it hereunder.
(g) Brokers or Finders. No agent, broker, investment banker or other firm
------------------
or Person, including any of the foregoing that is an Affiliate of the Purchaser,
is or will be entitled to any broker's or finder's fee or any other commission
or similar fee from the Purchaser in connection with any of the transactions
contemplated by this Agreement that the Company will be responsible for.
(h) Accredited Investor. The Purchaser is an "accredited investor" within
-------------------
the meaning of Rule 501 promulgated under the Securities Act of 1933, as
amended. The Purchaser has access to the information regarding the Company, has
access to management of the Company, has asked management of the Company the
questions the Purchaser has deemed advisable and has received responses in
satisfaction to those inquiries, all in order for the Purchaser to make the
decision to acquire the Shares.
(i) Disclosure. No representation or warranty by the Purchaser contained
----------
in this Agreement, and no statement contained in any certificate, schedule,
exhibit, list or other writing furnished to the Company in connection with the
transactions contemplated by this Agreement, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. All copies of all
writings furnished to the Company hereunder or in connection with the
transactions contemplated hereby are true and complete.
Section 5. COVENANTS.
---------- ---------
(a) Status of Stock. The Company will not in any report to stockholders,
---------------
or to any governmental body having jurisdiction over the Company or otherwise
treat the Preferred Stock other than as equity capital unless required to do so
by a governmental body having jurisdiction over the accounts of the Company or
by a change in application or interpretation of or a change in generally
accepted accounting principles required as a result of action by an
authoritative accounting standards-setting body. The Company will not issue any
additional Preferred Stock, except for the Shares.
(b) Transfer of Shares. The Purchaser understands and agrees that no
------------------
shares of Preferred Stock have been or will be registered under the Securities
Act of 1933, as amended (the "Securities Act") or the securities laws of any
state and that they may be sold or otherwise disposed of only in one or more
transactions registered under the Securities Act and, where applicable, such
laws or as to which an exemption from the registration requirements of the
Securities Act and, where applicable, such laws is available. The Purchaser
acknowledges that the Purchaser has no right to require the Company to register
the Shares or any shares of
5
<PAGE>
Preferred Stock. The Purchaser understands and agrees that each certificate
representing the Shares shall bear the following legends:
"ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
TAKES SUCH SECURITIES SUBJECT TO THE TERMS AND CONDITIONS OF THE
CERTIFICATE OF DESIGNATIONS OF THE COMPANY AND THE VOTING AGREEMENT
BETWEEN NORTH CENTRAL PERSONNEL, INC. AND THE COMPANY, DATED AS OF
APRIL 7, 1995, A COPY OF EACH IS ON FILE AT THE OFFICES OF THE
COMPANY."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS."
Section 6. CLOSING.
--------- -------
(a) Closing Date. The consummation of the transaction contemplated by this
------------
Agreement (the "Closing") shall take place on April 7, 1995, at 10:00 a.m. at 70
Park Avenue West, Mansfield, Ohio 44902 or at such place and time as hereafter
may be agreed upon by the Purchaser and the Company (the "Closing Date").
(b) The Company's Deliveries. At Closing, the Company shall deliver, or
------------------------
cause to be delivered to the Purchaser, in exchange for the Purchaser's
deliveries delineated in Section 6(c) below, the following, all of which shall
be in form and substance satisfactory to the Purchaser and the Purchaser's
counsel:
(i) a stock certificate or stock certificates in definitive form
registered in the name of the Purchaser, representing the Shares being purchased
hereunder;
(ii) appropriate evidence of all necessary corporate action by the
Company in connection with the transactions contemplated hereby, including
without limitation certified copies of resolutions duly adopted by the Company's
Board of Directors approving the transactions contemplated by, and authorizing
the execution, delivery and performance by the Company of, this Agreement;
6
<PAGE>
(iii) a certificate from the Secretary of State of Delaware stating
the Company is currently in good standing under the laws of the State of
Delaware;
(iv) a copy of the Certificate of Designations in the form of
EXHIBIT A, certified by the Secretary of State of Delaware;
(v) a legal opinion from the Company's legal counsel in a form
acceptable to the Purchaser's legal counsel;
(vi) the Earnout Advance in immediately available funds;
(vii) evidence that the Stock Option Committee of the Company has
immediately vested Diane Gurik's stock options in the Company as of the Closing
Date;
(viii) an executed counterpart of the Amendment No. 2 to the Asset
Agreement in the form of EXHIBIT B; and
(ix) an executed counterpart of the Voting Agreement in the form of
EXHIBIT C.
(c) The Purchaser's Deliveries. At Closing, the Purchaser shall deliver,
--------------------------
or cause to be delivered, in exchange for the deliveries delineated in Section
6(b) above, the following, all of which shall be in form and substance
satisfactory to the Company or the Company's counsel:
(i) the Note, surrendered for cancellation;
(ii) appropriate evidence of all necessary corporate action by the
Purchaser in connection with the transactions contemplated hereby, including
without limitation certified copies of resolutions duly adopted by the
Purchaser's Board of Directors approving the transactions contemplated by, and
authorizing the execution, delivery and performance by the Purchaser of this
Agreement;
(iii) an executed counterpart of the Amendment No. 2 to the Asset
Agreement in the form of EXHIBIT B;
(iv) an executed counterpart of the Voting Agreement in the form of
EXHIBIT C; and
(v) an executed copy of the Proxy (as defined in the Voting
Agreement).
7
<PAGE>
Section 7. ADDITIONAL CONDITIONS PRECEDENT OR SUBSEQUENT TO THE
--------- ----------------------------------------------------
OBLIGATIONS OF THE PURCHASER.
----------------------------
The obligations of the Purchaser to perform this Agreement are subject to
the satisfaction of the following conditions on or prior to the Closing Date,
unless waived in writing by the Purchaser, and the Company, shall use its best
efforts to cause such conditions to be fulfilled:
(a) Representations and Warranties. The representations and warranties of
------------------------------
the Company in this Agreement or in any schedule, certificate or document
delivered in connection herewith shall be true and correct in all material
respects on and as of the date hereof and on and as of the Closing Date.
(b) Performance of Obligations of the Company. The Company shall have
-----------------------------------------
performed in all material respects all agreements and obligations required to be
performed by it under this Agreement prior to the Closing Date.
(c) No Litigation. No action, suit or other proceeding shall be pending
-------------
before any court, tribunal or governmental authority seeking or threatening to
restrain or prohibit the consummation of the transactions contemplated by this
Agreement, or seeking to obtain substantial damages in respect thereof, or
involving a claim that consummation thereof would result in the violation of any
law, decree or regulation of any governmental authority having appropriate
jurisdiction.
Section 8. ADDITIONAL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE
--------- ---------------------------------------------------------
COMPANY.
-------
The obligations of the Company to perform this Agreement are subject to the
satisfaction, on or prior to the Closing Date, of the following conditions,
unless waived in writing by the Company, and the Purchaser shall use its best
efforts to cause such conditions to be fulfilled.
(a) Representations and Warranties. The representations and warranties of
------------------------------
the Purchaser in this Agreement or in any schedule, certificate or document
delivered pursuant hereto shall be true and correct in all material respects and
as of the date hereof and on and as of the Closing Date.
(b) Performance of Obligations of the Purchaser. The Purchaser shall have
-------------------------------------------
performed in all material respects all their respective obligations required to
be performed under this Agreement on or prior to the Closing Date, including,
without limitation, surrender of the Note.
(c) No Litigation. No action, suit or other proceeding shall be pending
-------------
before any court, tribunal or governmental authority seeking or threatening to
restrain or prohibit the consummation of the transactions contemplated by this
Agreement, or seeking to obtain
8
<PAGE>
substantial damages in respect thereof, or involving a claim that consummation
thereof would result in the violation of any law, decree or regulation of any
governmental authority having appropriate jurisdiction.
Section 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
--------- ------------------------------------------
All of representations and warranties made by any party to this Agreement
or pursuant hereto shall survive for a period of one year after the Closing.
The representations and warranties hereunder shall not be affected or diminished
by any investigation at any time by or on behalf of the party for whose benefit
such representations and warranties were made. All statements contained herein
or in any certificate, schedule list or other document delivered pursuant hereto
or in connection with the transactions contemplated hereby shall be deemed to be
representations and warranties.
Section 10. INDEMNIFICATION.
---------- ---------------
(a) Indemnification of the Purchaser. Subject to the limitations
--------------------------------
hereinafter set forth, the Company and its successors and assigns shall
indemnify, hold harmless and save the Purchaser and its affiliates, officers and
directors (in their respective capacities as such) from, against, for and in
respect of:
(i) any and all damages, losses, settlement payments, obligations,
liabilities, claims, actions or causes of action, encumbrances and reasonable
costs and expenses suffered, sustained, incurred or required to be paid by any
indemnified party because of (A) the claims of any broker or finder engaged by
the Company; (B) the untruth, inaccuracy or breach of any representation,
warranty, agreement or covenant of the Company contained in or made in
connection with this Agreement; or (C) claims with respect to the issuance of
the Shares; and
(ii) all reasonable costs and expenses (including, without limitation,
attorney's fees, interest and penalties) incurred by any indemnified party in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to any of the matters indemnified against in this Section 10(a).
(b) Indemnification of the Company. Subject to the limitations hereinafter
------------------------------
set forth, the Purchaser and its successors and assigns shall indemnify, hold
harmless and save the Company, and its affiliates, officers and directors (in
their respective capacities as such) from and against, for and in respect of:
(i) any and all damages, losses, settlement payments, obligations,
liabilities, claims, actions or causes of action, encumbrances and reasonable
costs and expenses suffered, sustained, incurred or required to be paid by any
indemnified party because of (A) the claims of any broker or finder engaged by
the Purchaser; or (B) the untruth, inaccuracy or breach of
9
<PAGE>
any representation, warranty, agreement or covenant of the Purchaser contained
in or made pursuant to this Agreement; and
(ii) all reasonable costs and expenses (including, without limitation,
attorney's fees, interest and penalties) incurred by any indemnified party in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to any of the matters indemnified against in this Section 10(b).
(c) Indemnification Procedures.
--------------------------
(i) The indemnified party shall give prompt written notice to the
indemnifying party of any claim which might give rise to a claim by the
indemnified party against the indemnifying party based on the indemnity
agreements contained in Sections 10(a) and 10(b) hereof, stating the nature and
basis of said claims and the amounts thereof, to the extent known.
(ii) In the event any action, suit or proceeding is brought against
the indemnified party, with respect to which the indemnifying party may have
liability under the indemnity agreements contained in Sections 10(a) or 10(b)
hereof, the action, suit or proceeding shall, upon the written acknowledgment by
the indemnifying party that it is obligated to indemnify under such indemnity
agreement, be defended (including all proceedings on appeal or for review which
counsel for the indemnifying party shall deem appropriate) by the indemnifying
party. The indemnified party shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the
indemnified party's own expense unless (A) the employment of such counsel and
the payment of such fees and expenses both shall have been specifically
authorized by the indemnifying party in connection with the defense of such
action, suit or proceeding, or (B) such indemnified party shall have reasonably
concluded and specifically notified the indemnifying party that there may be
specific defenses available to it which are different from or additional to
those available to the indemnifying party or that such action, suit or
proceeding involves or could have an effect upon matters beyond the scope of the
indemnity agreements contained in Sections 10(a) and 10(b) hereof, in any of
which events the indemnifying party, to the extent made necessary by such
defenses, shall not have the right to direct the defense of such action, suit or
proceeding on behalf of the indemnified party. In such case only that portion
of such fees and expenses reasonably related to matters covered by the indemnity
agreements contained in Sections 10(a) or 10(b) hereof shall be borne by the
indemnifying party. The indemnified party shall be kept fully informed of such
action, suit or proceeding at all stages thereof whether or not it is so
represented. The indemnifying party shall make available to the indemnified
party and its attorneys and accountants, all books and records of the
indemnifying party relating to such proceeding or litigation and the parties
hereto agree to render to each other such assistance as they may reasonably
require of each other in order to ensure the proper and adequate defense of any
such action, suit or proceeding.
10
<PAGE>
(iii) The indemnified party shall not make any settlement of any
claims without the written consent of the indemnifying party, which consent
shall not be unreasonably withheld or delayed.
(d) Cumulative Remedies. Except as herein expressly provided, the remedies
-------------------
provided in this Section 10 hereof shall be cumulative and shall not preclude
assertion by any party of any other rights or the seeking of any other rights or
remedies against any other party hereto.
(e) Tax Benefits. Tax benefits, if any, received by the indemnified party
------------
shall be taken into account when calculating the amount of any liability of the
indemnifying party.
Section 13. MISCELLANEOUS.
---------- -------------
(a) Expenses; Transfer Taxes, Etc. No costs, fees or expenses (or any
------------------------------
liability relating thereto) (including, for example, commission and brokerage
fees, attorney's fees or similar costs) incurred by the Company in connection
with this Agreement shall be borne by or charged to the Purchaser. No costs,
fees or expenses (or any liability relating thereto) (including, for example,
commission and brokerage fees, attorneys' fees or similar costs) incurred by the
Purchaser in connection with this Agreement shall be borne by or charged to the
Company.
(b) Parties in Interest. This Agreement shall be binding upon, inure to
-------------------
the benefit of, and be enforceable by the Company and its successors and assigns
and the Purchaser and its successors and assigns.
(c) Entire Agreement; Amendments. 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.
(d) Headings. The section and subsection headings contained in this
--------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(e) Notices. All notices, claims, certificates, requests, demands and
-------
other communications (a "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:
11
<PAGE>
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 60661-3693
Attn: Jeffrey R. Patt, Esq.
Telecopy No.: (312) 902-1061
If to the Purchaser, 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
Attn: Bud Vetter, Esq.
Telecopy No.: (419) 525-3810
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.
(f) Public Announcements. The Purchaser acknowledges and agrees that the
--------------------
Company will disseminate information and announcements relating to this
Agreement. The Purchaser agrees not to make any public announcement regarding
this Agreement without the prior written consent of the Company.
(g) Further Assurances. After the Closing Date, without further
------------------
consideration, the Company and the Purchaser shall execute and deliver such
further instruments and documents
12
<PAGE>
as either party shall reasonably request to consummate the transaction
contemplated by the Agreement.
(h) Waivers. Any party to this Agreement may, by written notice to the
-------
other party hereto, waive any provision of this Agreement. The waiver by any
party hereto of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent, same or different breach.
(i) Choice of Law and Performance. The 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.
(j) Definitions. Where appropriate in the context used, the descriptive
-----------
word "material" shall mean an aggregate of or amounting to an aggregate of
$5,000. As used herein the term "Affiliate" shall mean as to the Company or the
Purchaser, any person or entity who or which directly or indirectly, through one
or more intermediaries, controls or is controlled by or is under common control
with the Company or the Purchaser, as the case may be.
13
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
THE COMPANY: THE PURCHASER:
AMSERV HEALTHCARE INC. NORTH CENTRAL PERSONNEL, INC.
- --------------------------------- ----------------------------------
By: Eugene Mora By: Diane Gurik
Its: Chairman Its: President
14
<PAGE>
CERTIFICATE OF
DESIGNATIONS, PREFERENCES AND RIGHTS OF
CLASS A 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 A
Redeemable Preferred Stock, $.01 par value per share (the "Class A Preferred")
which resolution is as follows:
RESOLVED, that the rights, designations and preferences of the Class A
Preferred Stock of the Corporation is as follows:
PART A. TERMS APPLICABLE TO CLASS A PREFERRED.
-------------------------------------
Section 1. Liquidation.
--------- -----------
1.1 Preference. Upon any voluntary or involuntary liquidation,
----------
dissolution or winding up of the Corporation, the holders of Class A 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 A 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 A Preferred. At the option of a holder of Class A
Preferred with respect to its Class A 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 A
Preferred of the full preferential amount set forth above, then the
Distributable Funds shall be distributed to the holders of Class A Preferred,
ratably in proportion to the number of Class A Preferred Shares held by each
such holder on the date of liquidation, dissolution or winding up of the
Corporation.
<PAGE>
1.3 Remaining Funds. If any of the Distributable Funds shall remain after
---------------
the payment to the holders of Class A 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 A Preferred, ratably in
proportion to the number of shares of stock that each such holder holds.
Section 2. Ranking. The Class A 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 A Preferred shall have those voting
--------- -------------
rights set forth for the Class A 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 A Preferred then outstanding (a "Requesting Class A 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 A
Preferred Shares in cash (i) with respect to an Event of Default, all, but not
less than all of the Class A Preferred Shares held by such Requesting Class A
Holder or (ii) with respect to each Redemption Date, a number of Class A
Preferred Shares equal to (A) 85,359 multiplied by the quotient of (i) the
number of Class A Preferred Shares then held by such holder divided by (ii) the
total number of Class A Preferred Shares outstanding at the time of the demand
for redemption, plus (B) the number of Class A 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 A 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 A Preferred to be redeemed
pursuant to this Section 4.1(a) or Section 4.4 (the "Redeemed Class A 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 A Shares is hereinafter referred to as
the "Redemption Payment".
(b) If at any time after any holders of Class A Preferred Shares shall
have demanded redemption pursuant to this Section for an Event of Default, if
all Events of Default
2
<PAGE>
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 May 29, 1995, 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
3
<PAGE>
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 A 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 A
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 A Preferred.
4.5 Redemption Payment. For each Class A 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 A Preferred Shares) an amount in immediately
available funds equal to 100% of the Liquidation Value of such Class A 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 A Preferred on any Redemption Date are insufficient to redeem the total
number of Class A Preferred Shares to be redeemed on such date, those funds
which are legally available shall be paid to the holders of the Class A
Preferred ratably in proportion to the number of Class A Preferred Shares
requested to be redeemed by each Requesting Class A Holder. At any time
thereafter when additional funds of the Corporation are legally available for
the redemption of Class A Preferred Shares, such funds shall immediately be used
to redeem the balance of the Class A Preferred Shares which the Corporation had
become obligated to redeem but had not redeemed, paid to the Requesting Class A
Holders ratably in proportion to the number of Class A 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 A Preferred
Shares represented by any certificate are redeemed, a new certificate
representing the number of unredeemed Class A 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 A Preferred
Shares.
4
<PAGE>
4.6 No Rights After Redemption. Subject to Section 4.1(b), upon delivery
--------------------------
of notice of redemption, all rights of any Class A Preferred Holder with respect
to the Redeemed Class A Shares, except the right to receive the Redemption Price
for each Redeemed Class A 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 A 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 A Holder shall continue until the Corporation cures such
default. At any time on or after the Redemption Date, the Requesting Class A
Holder shall be entitled to receive the Redemption Price for each of the
Redeemed Class A Shares upon actual delivery to the Corporation of the
certificate(s) representing the Redeemed Class A Shares.
4.7 Redeemed or Otherwise Acquired Shares. Any Class A 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 A Preferred Shares, except as expressly authorized in this
Section or pursuant to an offer made pro rata to all holders of the Class A
Preferred on the basis of the number of Class A 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 A Preferred Shares. Upon the
surrender of any certificate representing Class A 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 A Preferred Shares represented by the surrendered
certificate. Each such new certificate will be registered in such name and will
represent such number of Class A 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 A 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 A 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
<PAGE>
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 A Preferred Shares outstanding at the time such action is taken; provided
that no action will discriminate against any holder of Class A Preferred other
than as a result of a difference in the number of Class A 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 A 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. Each
holder of Class A Preferred shall have one vote per share of Class A Preferred
held by such holder on the date as of which the holders of Class A 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.
6
<PAGE>
(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 A Preferred as of any particular
-----------------
date will be equal to $2.00 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.
7
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations, Preferences and Rights of Class A Preferred Stock to be signed by
Eugene J. Mora, its Chairman on this 7th day of April, 1995.
AMSERV HEALTHCARE INC.
----------------------------------------
By: Eugene J. Mora
Its: Chairman
8
<PAGE>
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, no consent,
approval or authorization of, or designation,
<PAGE>
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.
2
<PAGE>
SECTION 2.02 Transfer of Shares. Any transferee of any shares of the
Preferred 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
3
<PAGE>
jurisdiction, this being in addition to any other remedy to which they may
be entitled at law or in equity.
(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
4
<PAGE>
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
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.
5
<PAGE>
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.
6
<PAGE>
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
7
<PAGE>
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.
A-1
<PAGE>
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
A-2
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONDENSED
CONSOLIDATED BALANCE SHEETS AS OF MARCH 31, 1995 AND JUNE 30, 1994; AND
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE THREE AND NINE MONTH
PERIODS ENDED MARCH 31, 1995 AND 1994 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1995
<PERIOD-START> JUL-01-1994
<PERIOD-END> MAR-31-1995
<CASH> 963,049
<SECURITIES> 1,844,445
<RECEIVABLES> 1,324,493
<ALLOWANCES> 181,697
<INVENTORY> 0
<CURRENT-ASSETS> 4,018,417
<PP&E> 572,968
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0
0
<OTHER-SE> 4,710,584
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<EPS-DILUTED> .12
</TABLE>
