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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3 (Amendment and Restatement))*
American Medical Holdings, Inc.
(Name of Issuer)
Common Stock, $.10 par value per share
(Title of Class of Securities)
027428 10 1
(CUSIP Number)
Melvyn N. Klein
GKH Investments, L.P.
200 West Madison Street
Chicago, Illinois 60606
(312) 750-8477
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 10, 1994
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder on this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
(continued on following pages)
Page 1 of 24 pages
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1. NAME OF REPORTING PERSON
GKH Investments, L.P.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ X ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7. SOLE VOTING POWER
OF 24,719,168
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY -0-
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 24,719,168
WITH
10. SHARED DISPOSITIVE POWER
-0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
24,719,168
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[X]
The aggregate amount set forth in row 11 excludes 934,596 shares
of Common Stock (1.2% of the outstanding shares) owned by GKH
Private Limited and $1,096,000 of 8-1/4% Convertible Subordinated
Debentures convertible into 27,400 shares of Common Stock (.04%
of the outstanding shares) owned by Dan W. Lufkin. See Items 3
and 5 and Appendix A hereof.
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.9%, based on the number of shares outstanding as reported in
the Issuer's Quarterly Report on Form 10-Q for the quarter ended
May 31, 1994.
14. TYPE OF REPORTING PERSON
PN
Page 2 of 24 pages <PAGE>
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IN ACCORDANCE WITH RULE 13D-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED, THIS AMENDMENT NO 3. (AMENDMENT AND RESTATEMENT) ON SCHEDULE 13D
(THIS "AMENDED AND RESTATED STATEMENT") AMENDS AND RESTATES THE SCHEDULE 13D
DATED AUGUST 22, 1991, AS AMENDED BY AMENDMENT NO. 1 DATED SEPTEMBER 30, 1991
AND AMENDMENT NO. 2 DATED DECEMBER 2, 1991 (COLLECTIVELY, THE "INITIAL
STATEMENT"), PREVIOUSLY FILED ON BEHALF OF THE REPORTING PERSON.
Item 1. Security and Issuer
-------------------
This statement on Schedule 13D relates to the Common Stock, $.01 par
value per share (the "Common Stock"), of American Medical Holdings, Inc., a
Delaware corporation (the "Company"). The principal executive offices of the
Company are located at 14001 Dallas Parkway, Suite 300, Dallas, Texas 75380.
Item 2. Identity and Background
-----------------------
This statement is being filed by GKH Investments, L.P., a Delaware
Limited Partnership (the "Fund"), the principal executive offices of which are
located at 200 West Madison Street, Chicago, Illinois 60606. The sole general
partner of the Fund is GKH Partners, L.P., a Delaware limited partnership
("GKH"). Certain additional information regarding GKH and its controlling
persons is included in Appendix A attached hereto and is incorporated herein
by this reference.
Neither the Fund nor, to the best knowledge of the Fund, any of the
persons listed in Appendix A hereto have during the last five years: (1) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (2) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of or prohibiting or mandating activity subject to, federal
or state securities laws, or finding any violation with respect to such laws.
The Fund's principal business is investing.
Item 3. Source and Amount of Funds
--------------------------
On August 22, 1991 the Fund purchased directly from the Company
4,150,760 shares of Common Stock for a purchase price per share of $9.75. The
aggregate purchase price paid by the Fund for such shares was $40,469,910.
In addition, on August 22, 1991, GKH Private Limited, a Singapore corporation
("GKHPL"), the assets of which are managed by GKH, purchased directly from the
Company 156,932 shares of Common Stock for a purchase price per share of
$9.75. The aggregate purchase price paid by GKHPL for the shares purchased
by it was $1,530,087. Such acquisition by GKHPL was made pursuant to an
investment management agreement dated as of October 10, 1988 between GKH and
GKHPL (the "Management Agreement"). For additional information regarding the
Management Agreement see Item 6. The Fund and to the best of the Fund's
knowledge, GKHPL, utilized their own respective funds to acquire such shares.
The Fund disclaims beneficial ownership of the shares of Common Stock owned
of record by GKHPL and GKHPL disclaims beneficial ownership of the shares of
Common Stock owned of record by the Fund.
Page 3 of 24 pages <PAGE>
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On November 29, 1991, in open market transactions effected on the
American Stock Exchange using working capital, the Fund purchased 9,000 shares
and 100 shares of Common Stock at a price of $7 5/8 per share and $7 1/4 per
share, respectively, and on December 2, 1991, in an open market transaction
effected on the American Stock Exchange using working capital, the Fund
purchased an additional 9,000 shares of Common Stock at a price of $7 3/4 per
share.
Item 4. Purpose of Transaction
----------------------
The Company was organized by the Fund and First Boston Investments, Inc.
to acquire American Medical International, Inc. ("AMI") in 1989. As a result
of the stockholders' agreement described in Item 6 hereof, by maintaining
their respective ownership of Common Stock at certain specified levels, the
Fund and MB L.P. I, an affiliate of The First Boston Corporation and their
respective permitted transferees effectively have the power to determine the
policies of the Company, the persons constituting its management and the
outcome of corporate actions requiring stockholder approval by majority
action.
The 4,150,760 shares of Common Stock acquired by the Fund on August 22,
1991 were acquired in order to assist the Company in effecting its redemption
of certain outstanding debt. Such Common Stock was acquired for investment
purposes.
On October 10, 1994, the Company entered into an agreement and plan of
merger with National Medical Enterprises, Inc., a Nevada corporation ("NME"),
and its wholly-owned subsidiary AMH Acquisition Co., a Delaware corporation
("Subco"), whereby Subco would be merged (the "Merger") with and into the
Company. In connection with the execution of the Merger Agreement, each of
the Fund, GKHPL and NME executed a Stockholder Voting and Profit Sharing
Agreement dated as of October 10, 1994 (the "Stockholder Voting and Profit
Sharing Agreement"), pursuant to which, among other things, the Fund and GKHPL
agreed to vote, and have executed a written consent, in favor of the Merger.
For additional information regarding the Stockholder Voting and Profit Sharing
Agreement, see Item 6 hereof.
Except pursuant to the Merger and as otherwise described herein, the
Fund has no present intention, plan or proposal to take any action listed in
paragraph (a) through paragraph (j) of Item 4 of Schedule 13D. The Fund
reserves the right in its sole discretion, however, to take any action,
including without limitation the actions set forth in paragraph (a) through
paragraph (j) of Item 4, subject to applicable law.
Page 4 of 24 pages <PAGE>
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Item 5. Interest in Securities of the Issuer
------------------------------------
As of December 2, 1991, the Fund beneficially owned 24,719,168 shares
of Common Stock, constituting approximately 31.9% of the total number of
outstanding shares. The 24,719,168 shares of Common Stock owned by the Fund
exclude 934,596 shares of Common Stock (constituting approximately 1.2% of the
total number of outstanding shares) owned by GKHPL and $1,096,000 of 8-1/4%
Convertible Subordinated Debentures convertible into 27,400 shares of Common
Stock (approximately .04% of the outstanding shares) owned by Dan W. Lufkin.
As of the date hereof, except as set forth in Item 6 hereof, the Fund had sole
power to vote and to dispose of all shares of Common Stock owned by it.
During the past 60 days, neither the Fund nor, to the best of the Fund's
knowledge, any of the persons set forth in Appendix A hereof have effected any
transactions in Common Stock except as otherwise described herein.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
---------------------------------------------------------------
Investment Management Agreement
- -------------------------------
GKH and GKHPL entered into that certain investment management agreement
dated as of October 10, 1988 (the "Management Agreement"). Pursuant to the
Management Agreement, GKH agreed to invest the assets of GKHPL in investments
made by the Fund, under certain circumstances. The Management Agreement
expires on January 25, 2002 and is generally irrevocable by GKHPL. A copy of
such agreement was filed with the Initial Statement as Exhibit 2 and the
description of the Management Agreement contained herein is qualified in its
entirety by reference to such exhibit, which is hereby incorporated herein by
reference in its entirety as Exhibit 99.2.
Amended and Restated Stockholders' Agreement
- --------------------------------------------
The Fund and GKHPL are each a party to an Amended and Restated
Stockholders' Agreement dated as of July 30, 1991 (the "New Stockholders'
Agreement") among the Company, MB L.P. I, a Delaware limited partnership
("MBLP"), 1987 Merchant Investment Partnership, a New York limited partnership
("1987 MIP"), First Plaza Group Trust ("First Plaza"), the individual parties
thereto (the "Management Purchasers"), Chemical Investments Inc. ("Chemical"),
the Fund and GKHPL. The New Stockholders' Agreement superseded that certain
Amended and Restated Stockholders Agreement, dated as of April 4, 1990 (the
"Original Agreement"). A copy of the New Stockholders' Agreement was filed
with the Initial Statement as Exhibit 1 and the description of the New
Stockholders' Agreement contained herein is qualified in its entirety by
reference to such Exhibit, which is hereby incorporated herein by reference
in its entirety as Exhibit 99.1. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the New Stockholders'
Agreement.
Page 5 of 24 pages <PAGE>
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Pursuant to the New Stockholders' Agreement, the Fund or its Permitted
Transferees have the power to designate up to five and generally a majority
of the Company's directors; MBLP and 1987 MIP or their collective Permitted
Transferees (collectively, the "FBI Party") are entitled to designate up to
two of the Company's directors and the Management Purchasers or their
respective Permitted Transferees are entitled to designate at least one (but
not more than two) of the Company's directors. The rights and obligations of
the parties to designate and vote for directors terminate as to a party if it
fails to maintain its ownership of the Shares at a specified level (the
"Termination Event").
Prior to the Termination Event, the New Stockholders' Agreement contains
restrictions on the ability of the Company to take certain corporate actions
without the affirmative vote or consent of a director nominated by the Fund
(which for purposes of the New Stockholders' Agreement means the Fund and
GKHPL) and a director nominated by the FBI Party. In addition, prior to the
Termination Event, the New Stockholders' Agreement provides that any merger,
consolidation, sale of 20% or more of the assets of the Company, acquisition
of any entity with a purchase price in excess of 20% of the Company's then net
worth, or a recapitalization of the Company involving a distribution to
stockholders of 30% or more of then net worth of the Company, will be subject
to a vote of 66.6% of the shares of voting stock held by the Fund, the FBI
Party, First Plaza and Chemical (including each such party's respective
Permitted Transferees).
The New Stockholders' Agreement contains certain restrictions on the
ability of the Fund and the FBI Party to sell Common Stock while certain debt
securities of AMI owned by First Plaza remain outstanding. In addition, the
New Stockholders' Agreement provides the FBI Party, First Plaza, Chemical and
the Management Purchasers with certain "tag-along" rights (subject to certain
exceptions) in the event the Fund proposes to sell any of its Common Stock to
a third party which would result in the Fund owning less than 21,500,000
shares of Common Stock, such that the FBI Party, First Plaza, Chemical and the
Management Purchasers would be entitled to participate as selling parties on
a pro rata basis. The New Stockholders' Agreement also provides the Fund with
certain "drag-along" rights if the Fund proposes to dispose of all of its
shares of Common Stock to a non-affiliated third party. As a result of such
rights, the Fund may require the FBI Party, First Plaza, Chemical and the
Management Purchasers to either sell their Common Stock to such non-affiliated
third party or vote in favor of a transaction which would effect the
disposition of the same. In addition, the New Stockholders' Agreement
provides that, subject to certain exceptions, if any party to the New
Stockholders' Agreement (other than the Fund) wishes to sell or otherwise
dispose of any of its shares of Common Stock (the "Transfer Shares") to a
person other than a party to the New Stockholders' Agreement or a Permitted
Transferee of such party, in one transaction or from time to time in different
transactions, the Fund and the Company or any of its subsidiaries shall have
a right of first refusal with respect to the Transfer Shares at a price
specified by the selling party or parties (the "Seller"), exercisable for a
period of fifteen days following written notice from the Seller of the terms
of such proposed sale of Transfer Shares. The rights referred to in this
paragraph terminate on the earlier to occur of October 26, 1999, and the sale
of 65% of the Shares pursuant to "Public Sales" as defined in the New
Stockholders' Agreement.
Page 6 of 24 pages <PAGE>
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Stockholder Voting and Profit Sharing Agreement
- -----------------------------------------------
On October 10, 1994, the Company entered into the Merger Agreement with
NME and Subco providing for the Merger of Subco with and into the Company.
Pursuant to the Merger, each share of the Common Stock of the Company will be
converted into the right to receive (i) 0.42 shares of common stock, par value
$.075 per share of NME, and (ii) $19.00 cash if the closing occurs before
April 1, 1995 and $19.25 thereafter.
In connection with the execution of the Merger Agreement, the Fund,
GKHPL and NME entered into the Stockholder Voting and Profit Sharing
Agreement. The Stockholder Voting and Profit Sharing Agreement provides that,
absence termination thereof, if any person (other than NME and its affiliates)
(i) acquires beneficial ownership of any or all of the Common Stock owned by
the Fund or GKHPL or (ii) consummates a merger, consolidation or other
business combination with, or purchases all or substantially all of the assets
of, the Company (each of the transactions described in clauses (i) and (ii)
being referred to as an "Alternate Transaction"), the Fund and GKHPL,
respectively, shall pay to NME an amount (the "Alternate Transaction Payment")
equal to the product of (x) the excess of the consideration for such Alternate
Transaction over (A) $25.88 or (B) if the Alternate Transaction is consummated
after March 31, 1995, $26.13, times (y) the number of shares of Common Stock,
if any, sold or transferred by the Fund or GKHPL to an acquiring person or
received by the Fund or GKHPL by virtue of an Alternate Transaction which is
consummated, or with respect to which an agreement is entered into, on or
prior to June 30, 1995 (the "Outside Date"). In any such event, the Company
has agreed to reimburse the Fund, GKHPL, GKH and certain other stockholders
up to $75,000,000 of any Alternate Transaction Payment made by them to NME.
As part of the Stockholder Voting and Profit Sharing Agreement, the Fund
and GKHPL agreed (the "Voting Arrangement") to vote all of their respective
shares of Common Stock on matters as to which each of the Fund and GKHPL is
entitled to vote (i) in favor of approval and adoption of the Merger Agreement
and all related matters, (ii) against any action or agreement that would
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement, and (iii) against any action or agreement (other than the Merger
Agreement) that would impede, interfere with, delay, postpone or attempt to
discourage the Merger. Moreover, the Fund and GKHPL each appointed NME as its
attorney and proxy to vote all of their respective shares of Common Stock, or
dissent to corporate action in writing without a meeting, on the matters set
forth in clauses (i), (ii) and (iii) of the immediately preceding sentence.
The Stockholder Voting and Profit Sharing Agreement provides that if a
record date for any dividend or distribution to be paid on the Common Stock
occurs during the term of the Stockholder Voting and Profit Sharing Agreement
(other than a cash dividend of $.10 per share permitted by the Merger
Agreement), NME and each of the Fund and GKHPL will enter into an escrow
arrangement pursuant to which any payment of any such dividend distribution
shall be held in escrow. Upon consummation of an Alternate Transaction, such
dividend or distribution shall be delivered to NME together with the amounts
described above.
Page 7 of 24 pages <PAGE>
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As part of the Stockholder Voting and Profit Sharing Agreement, each of
the Fund and GKHPL agreed that, without the prior written consent of NME,
except pursuant to the terms of the Stockholder Voting and Profit Sharing
Agreement not to (i) sell, transfer, assign, pledge or otherwise dispose of
or hypothecate any of its shares of Common Stock, (ii) grant any proxies,
deposit any shares of Common Stock into a voting trust or enter into a voting
agreement with respect to any shares of Common Stock as to any matter
specified as part of the Voting Arrangement or (iii) take any action that
would make any representation or warranty contained in the Stockholder Voting
and Profit Sharing Agreement untrue or incorrect in any material respect or
have the effect of preventing or disabling the Fund or GKHPL, respectively,
from performing its obligations under the Stockholder Voting and Profit
Sharing Agreement. In addition, each of the Fund and GKHPL agreed that until
the earlier of the Outside Date or the termination of the Merger Agreement,
the Fund or GKHPL, respectively, will not, and will cause its officers,
directors, employees and agents not to, directly or indirectly, (i) take any
action to solicit, initiate or encourage any proposal or discussions relating
to any offer or proposal for, or any indication of interest in, a merger or
other business combination involving the Company or any of its subsidiaries
or the acquisition of any equity interest in, or a substantial portion of the
assets of, any such party, other than the transactions contemplated by the
Merger Agreement ("Acquisition Proposal") or (ii) engage in negotiations with,
or disclose any nonpublic information relating to the Company or its
subsidiaries, or afford access to their respective properties, books or
records to, any person that may be considering making, or has made, an
Acquisition Proposal (but the foregoing agreement shall not prohibit any such
person, solely in his capacity as a director of the Company, from
participating in deliberations at a meeting of the Company's Board of
Directors or voting with respect to an Acquisition Proposal).
The Stockholder Voting and Profit Sharing Agreement will terminate upon
the earlier to occur of (i) the Outside Date (provided, that if the Merger
Agreement is terminated as a result of the breach by NME of a representation
or warranty thereof, the failure by NME to comply with a covenant contained
therein or the failure of NME to obtain financing for the Merger, then the
Stockholder Voting and Profit Sharing Agreement will terminate on the
effective date of the termination of the Merger Agreement), (ii) the effective
time of the Merger and (iii) immediately following the making of an Alternate
Transaction Payment. In addition, the Fund's and GKHPL's obligations in
respect of the Voting Arrangement cease (subject to their obligation to make
any Alternate Transaction Payment as described in the second paragraph of this
subheading) if the Merger Agreement is terminated as the result of the
Company's determination, in the exercise of the Company's Board of Directors'
good faith judgment as to its fiduciary duties to its stockholders imposed by
law, that such termination is required as the result of a proposal regarding
an Alternate Transaction.
Item 7. Material to be Filed as Exhibits
--------------------------------
Exhibit 99.1: Amended and Restated Stockholders' Agreement
Exhibit 99.2: Investment Management Agreement
Exhibit 99.3: Stockholder Voting and Profit Sharing Agreement
Page 8 of 24 pages <PAGE>
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October 19, 1994.
GKH INVESTMENTS, L.P., a Delaware limited
partnership
By: GKH Partners, L.P., its
general partner
By: HGM Associates Limited
Partnership, a general partner
By: HGM Corporation, its general
partner
By: /s/ Harold S. Handelsman
--------------------------
Harold S. Handelsman,
Vice President
Page 9 of 24 pages <PAGE>
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APPENDIX A
----------
The sole general partner of the Fund is GKH Partners L.P., a Delaware
limited partnership ("GKH"). By virtue of such position and by virtue of the
Management Agreement, GKH may be deemed the beneficial owner of 24,719,168
shares of Common Stock owned by the Fund and 934,596 shares of Common Stock
owned of record by GKHPL. The general partners of GKH are JAKK Holding Corp.,
a Nevada corporation ("JAKK"); DWL Lumber Corporation, a Delaware corporation
("DWL"); and HGM Associates Limited Partnership, an Illinois limited
partnership ("HGMLP"). The sole general partner of HGMLP is HGM Corporation,
a Nevada corporation ("HGM"). Each of JAKK, DWL, HGMLP and HGM, by virtue of
its relationship to GKH and the Fund may also be deemed to share beneficial
ownership of an aggregate of 24,719,168 shares of Common Stock owned by the
Fund and 934,596 shares of Common Stock owned of record by GKHPL. Each of
such entities disclaims such beneficial ownership.
1. Information Regarding GKH
-------------------------
The principal business of GKH is investing and directing of the
investments of the Fund and GKHPL. The principal executive offices of GKH are
located at Mercantile Tower, MT 209, 615 N. Upper Broadway, Suite 1940, Corpus
Christi, Texas 78477.
2. Information Regarding JAKK
--------------------------
The principal business of JAKK is investing and asset management. The
address of its principal executive offices is Mercantile Tower, MT 209, 615
N. Upper Broadway, Suite 1940, Corpus Christi, Texas 78477. Melvyn Klein is
the sole director and stockholder of JAKK and serves as its president,
treasurer and secretary. By virtue of his relationship to JAKK, Mr. Klein may
be deemed to share beneficial ownership of the shares of Common Stock
beneficially owned by the Fund and GKHPL. Mr. Klein disclaims such beneficial
ownership.
Mr. Klein serves as a director of the Company, is an attorney and
counselor at law and is a private investor. Mr. Klein's business address is
Mercantile Tower, MT 209, 615 N. Upper Broadway, Suite 1940, Corpus Christi,
Texas 78477. Mr. Klein is a United States citizen.
3. Information Regarding DWL
-------------------------
The principal business of DWL is investing and asset management. The
address of its principal executive offices is c/o Richards & O'Neil, 885 Third
Avenue, New York, New York 10022. Dan W. Lufkin is the sole stockholder and
a director of DWL and serves as its president. Mr. Lufkin acquired an
aggregate of $1,096,000 of 8-1/4% Subordinated Convertible Debentures of the
Company (the "Debentures") as a result of three separate purchases occurring
on March 7, 1991, March 13, 1991 and June 5, 1991, for a purchase price of
$164,500, $64,500 and $335,250, respectively. The Debentures are convertible
within sixty days into 27,400 shares (.04% of the outstanding shares) of
Common Stock of the Company at a conversion price of $40.00 per share.
Mr. Lufkin utilized his own personal funds to acquire such Debentures. The
Fund and GKHPL disclaim beneficial ownership of the Debentures and Mr. Lufkin
disclaims beneficial ownership of the shares of Common Stock owned by the Fund
and GKHPL.
Page 10 of 24 pages <PAGE>
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Mr. Lufkin serves as a director of the Company and is also a special
limited partner of the Fund. Mr. Lufkin is a director of Culbro, Inc., a
distributor of consumer products, and OHM, Inc., an emergency response and
hazardous waste management company, and is a private investor. Mr. Lufkin's
business address is 711 Fifth Avenue, Suite 401, New York, New York 10022.
Mr. Lufkin is a United States citizen.
4. Information Regarding HGMLP
---------------------------
The principal business of HGMLP is investing and asset management. Its
principal executive offices are located at 200 West Madison, Chicago, Illinois
60606.
5. Information Regarding HGM
-------------------------
The principal business of HGM is investing and asset management. Its
principal executive offices are located at 200 West Madison Street, Chicago,
Illinois 60606. The names, business addresses and present principal
occupations or employment of each director and executive officer of HGM and
the names and principal businesses of any corporation or other organization
in which such employment is conducted is set forth below. Each director and
executive officer listed below is a United States citizen. By virtue of such
officers' and directors' relationship to HGM, each of such officers and
directors may be deemed to share beneficial ownership of the shares of Common
Stock beneficially owned by the Fund and GKHPL. Each of such directors and
executive officers disclaims such beneficial ownership.
<TABLE>
<CAPTION>
Present Principal
Name and Business Address Occupation or Employment
- ------------------------- ------------------------
<S> <C>
Jay A. Pritzker Director and Chairman of the
200 West Madison Street Board of HGM; Director and
Chicago, Illinois 60606 Chairman of the Board of
Marmon Holdings, Inc., a
Delaware corporation; Chairman
of the Board of Hyatt
Corporation, a domestic hotel
management company.
Thomas J. Pritzker President of HGM; President of
200 West Madison Street Hyatt Corporation, a domestic
Chicago, Illinois 60606 hotel management company.
Glen Miller Vice President and Treasurer
200 West Madison Street of HGM; Chief Executive
Chicago, Illinois 60606 Officer of Diversified
Financial Management Corp.
Harold S. Handelsman Vice President and Secretary
of HGM; Senior Vice President
and general counsel of Hyatt
Corporation, a domestic hotel
management company; director
of the Company.
</TABLE>
Page 11 of 24 pages <PAGE>
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One hundred percent of the issued and outstanding common stock of HGM
is owned by Charles Evans Gerber, not individually but solely as trustee of
F.L.P. Trust No. 10 which trust was organized primarily for the benefit of
members of the Pritzker Family. The term "Pritzker Family" refers to the
lineal descendants of Nicholas J. Pritzker, deceased. Mr. Gerber disclaims
beneficial ownership of the shares of Common Stock owned by the Fund and
GKHPL.
Charles Evans Gerber is a partner in the law firm of Neal Gerber &
Eisenberg and his business address is Two North LaSalle Street, Suite 2200,
Chicago, Illinois 60602. Mr. Gerber is a citizen of the United States.
Page 12 of 24 pages <PAGE>
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<PAGE>
EXHIBIT 99.3
STOCKHOLDER VOTING AND PROFIT SHARING AGREEMENT
THIS STOCKHOLDER VOTING AND PROFIT SHARING
AGREEMENT (this "Agreement") is made and entered into as
of this 10th day of October, 1994, by and among National
Medical Enterprises, Inc. a Nevada corporation
("Acquiror"), and the stockholder named on the signature
page hereto ("Stockholder"). On the date hereof the
Stockholder Beneficially Owns (as defined in Section
13(a) hereof) the shares of common stock, par value $.01
per share (the "Company Shares"), of American Medical
Holdings, Inc., a Delaware corporation ("Company"), set
forth next to the Stockholder's name on the signature
page hereto.
WHEREAS, Acquiror and the Company concurrently
herewith are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agree-
ment"), providing for, among other things, the merger
(the "Merger") of a wholly owned subsidiary of Acquiror
with and into the Company with the Company as the surviv-
ing corporation; and
WHEREAS, as an inducement to Acquiror's execu-
tion of the Merger Agreement, Acquiror has requested that
the Stockholder agree, and the Stockholder has agreed, to
grant to Acquiror certain rights (i) to receive payment
from the Stockholder in the event that an Alternate
Transaction (as defined in Section 1(a) hereof) is con-
summated; and (ii) to vote (or consent with regard to)
all Company Shares as to which the Stockholder has voting
power as provided herein.
NOW, THEREFORE, in consideration of the premis-
es and the representations, warranties, covenants and
agreements contained herein and in the Merger Agreement,
and for other good and valuable consideration, the re-
ceipt and sufficiency of which is hereby acknowledged,
the parties hereto, intending to be legally bound hereby,
agree as follows:
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<PAGE>
1. Payments to Acquiror Upon Certain Events.
(a) Alternate Transaction Payment. (i) If a
person other than Acquiror or its Affiliates (as defined
in Section 13(c) hereof)(an "Acquiring Person"):
(A) acquires Beneficial Ownership of any or all
of the Stockholder Shares (as hereinafter defined);
or
(B) consummates a merger, consolidation or
other business combination with, or purchases all or
substantially all of the assets of, the Company
(each transaction specified in the foregoing clause
(A) or in this clause (B), an "Alternate Transac-
tion"),
the Stockholder shall pay to Acquiror an amount (the
"Alternate Transaction Payment") equal to the product of
(x) the excess of the Alternate Transaction Price (as
hereinafter defined), over $25.88, or, if the Alternate
Transaction is consummated after March 31, 1995, $26.13
(the "Base Price") times (y) the number of Stockholder
Shares, if any, sold or transferred by the Stockholder to
an Acquiring Person or received by a Stockholder by
virtue of an Alternate Transaction which is consummated,
or with respect to which an agreement is entered into, on
or prior to June 30, 1995 (the "Outside Date"). Such
payment shall be made promptly following the transfer of
Stockholder Shares to an Acquiring Person. In the event
that the consideration for the Stockholder Shares con-
sists in whole or in part of property other than cash,
the Alternate Transaction Payment shall be made by deliv-
ering to the Acquiror a percentage of each type of prop-
erty received determined by dividing the amount of the
Alternate Transaction Payment (expressed on a per share
basis) by the Alternate Transaction Price.
(ii) "Alternate Transaction Price" shall mean,
with respect to any Stockholder Shares, the price per
share paid by any Acquiring Person after the date hereof
for such Stockholder Shares which shall include, if
applicable, the fair market value of securities or other
property other than cash exchanged for Stockholder Shares
or received for the Company's assets, calculated as a per
share price, as determined by the investment banking firm
retained by the Company to evaluate such proposal.
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<PAGE>
(iii) "Stockholder Shares" shall mean the
Shares of Company capital stock (including without limi-
tation the Company Shares) Beneficially Owned by such
Stockholder as of the date hereof.
(iv) For purposes of determining whether an
Alternate Transaction exists, an Acquiring Person shall
be deemed to have acquired "Beneficial Ownership" of any
Stockholder Shares (x) which such person or any of its
Affiliates or Associates (as defined in Section 13(c)
hereof) Beneficially Owns, directly or indirectly; (y)
which such person or any of its Affiliates or Associates
has, directly or indirectly (A) the right to acquire
(whether such right is exercisable immediately or subject
only to the passage of time), pursuant to any agreement,
arrangement, or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options,
or otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or understanding; or (z) which are
Beneficially Owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understand-
ing for the purpose of acquiring, holding, voting or
disposing of any Company Shares (other than the Company
Shares owned by other persons that are parties to the
Amended and Restated Stockholder Agreement, dated as of
July 30, 1991, among the Stockholder, the Company and
certain other stockholders (the "Stockholder Agreement").
(b) Adjustment Upon Certain Changes in Capi-
talization. In the event of any change in the Company
Shares by reason of a stock dividend, stock split, split-
up, recapitalization, combination, exchange of shares or
similar transaction, the type and number of shares or
securities that constitute Stockholder Shares hereunder,
and the Base Price therefor, shall be adjusted appropri-
ately.
2. Voting Rights.
(a) Voting Agreement. The Stockholder agrees
to vote all Stockholder Shares on matters as to which the
Stockholder is entitled to vote at a meeting of the
Stockholders of the Company, or by written consent with-
out a meeting with respect to all Stockholder Shares as
follows: (i) in favor of approval and adoption of the
Merger Agreement and all related matters; (ii) against
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<PAGE>
any action or agreement that would result in a breach in
any material respect of any covenant, representation or
warranty or any other obligation or agreement of the
Company under the Merger Agreement; and (iii) against any
action or agreement (other than the Merger Agreement or
the transactions contemplated thereby) that would impede,
interfere with, delay, postpone or attempt to discourage
the Merger.
(b) Grant of Proxy. The Stockholder hereby
appoints Acquiror, with full power of substitution (Acqu-
iror and its substitutes being referred to herein as the
"Proxy"), as attorneys and proxies to vote all Stock-
holder Shares on matters as to which Stockholder is
entitled to vote at a meeting of the stockholders of the
Company or to which they are entitled to express consent
or dissent to corporate action in writing without a
meeting, in the Proxy's absolute, sole and binding dis-
cretion on the matters specified in Section 2(a) above.
The Stockholder agrees that the Proxy may, in such Stock-
holder's name and stead, (i) attend any annual or special
meeting of the stockholders of the Company and vote all
Stockholder Shares at any such annual or special meeting
as to the matters specified in Section 2(a) above, and
(ii) execute with respect to all Stockholder Shares any
written consent to, or dissent from, corporate action re-
specting any matter specified in Section 2(a) above. The
Stockholder agrees to refrain from (A) voting at any
annual or special meeting of the stockholders of the
Company, (B) executing any written consent in lieu of a
meeting of the stockholders of the Company, (C) exer-
cising any rights of dissent with respect to the Stock-
holder Shares, and (D) granting any proxy or authoriza-
tion to any person with respect to the voting of the
Stockholder Shares, except pursuant to this Agreement, or
taking any action contrary to or in any manner incon-
sistent with the terms of this Agreement. The Stockhold-
er agrees that this grant of proxy is irrevocable and
coupled with an interest and agrees that the person
designated as Proxy pursuant hereto may at any time name
any other person as its substituted Proxy to act pursuant
hereto, either as to a specific matter or as to all
matters. The Stockholder hereby revokes any proxy previ-
ously granted by it with respect to its Stockholder
Shares as to the matters specified in Section 2(a) above.
In discharging its powers under this Agreement, the Proxy
may rely upon advice of counsel to Acquiror, and any vote
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<PAGE>
made or action taken by the Proxy in reliance upon such
advice of counsel shall be deemed to have been made in
good faith by the Proxy.
3. Dividends. The Stockholder agrees that if
a record date for any dividend or distribution to be paid
(whether in cash or property, including without limita-
tion securities) on the Stockholder Shares occurs during
the term hereof (other than the cash dividend of $.10 per
share permitted by Section 7.12 of the Merger Agreement),
Acquiror and the Stockholder shall enter into an escrow
arrangement pursuant to which any payment of any such
dividend or distribution shall be held in escrow. Upon
consummation of any Alternate Transaction, such dividend
or distribution made on such Stockholder Shares shall be
delivered to Acquiror together with the Alternate Trans-
action Payment.
4. Termination.
(a) This Agreement shall terminate upon the
earlier to occur of (i) the Outside Date, provided, that,
if the Merger Agreement is terminated by the Company in
accordance with Section 9.3(b), (c) or (d) thereof, this
Agreement shall terminate on the effective date of such
termination of the Merger Agreement; (ii) the Effective
Time of the Merger; and (iii) immediately following the
making of an Alternate Transaction Payment for all of the
Stockholder Shares; provided, that, in the case of any
termination pursuant to clause (i), this Agreement shall
continue with respect to all Stockholder Shares with
respect to which an agreement is entered into prior to
such termination until payment of the Alternate Trans-
action Payment for such shares is made or such agreement
is terminated.
(b) Upon termination, this Agreement shall
have no further force or effect, except for Section 9
which shall continue to apply to any case, action or
proceeding relating to the enforcement of this Agreement.
5. Representations and Warranties of Stock-
holder. The Stockholder hereby represents and warrants
to Acquiror as follows:
(a) Due Authorization. The Stockholder has
the legal capacity and all necessary corporate, partner-
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<PAGE>
ship and trust power and authority to execute and deliver
this Agreement and to consummate the transactions contem-
plated hereby. The Stockholder Beneficially Owns all of
the Stockholder Shares listed on the signature page
hereof and specified as so owned with no restrictions on
the voting rights or rights of disposition pertaining
thereto, except as set forth in the Stockholder Agree-
ment, which constitute all Company Shares Beneficially
Owned by such Stockholder. Assuming this Agreement has
been duly and validly authorized, executed and delivered
by Acquiror, this Agreement constitutes a valid and
binding agreement of the Stockholder, enforceable in
accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally or by
the principles governing the availability of equitable
remedies.
(b) No Conflicts. Neither the execution and
delivery of this Agreement nor the consummation by the
Stockholder of the transactions contemplated hereby will
conflict with or constitute a violation of or default
under any contract, commitment, agreement, arrangement or
restriction of any kind to which the Stockholder is a
party or by which the Stockholder is bound.
6. Representations and Warranties of Acquiror.
Acquiror hereby represents and warrants to the Stockhold-
er as follows:
(a) Due Authorization. Acquiror has the
requisite corporate power and authority to enter into and
perform this Agreement. This Agreement has been duly
authorized by all necessary corporate action on the part
of Acquiror and has been duly executed by a duly autho-
rized officer of Acquiror. Assuming this Agreement has
been duly and validly executed and delivered by the
Stockholder, this Agreement constitutes a valid and
binding agreement of Acquiror, enforceable against it in
accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally or by
the principles governing the availability of equitable
remedies.
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<PAGE>
7. No Transfer.
(a) The Stockholder hereby agrees, without the
prior written consent of Acquiror, except pursuant to the
terms hereof, not to (i) sell, transfer, assign, pledge
or otherwise dispose of or hypothecate any of its Stock-
holder Shares; (ii) grant any proxies, deposit any Stock-
holder Shares into a voting trust or enter into a voting
agreement with respect to any Stockholder Shares as to
any matter specified in Section 2(a); or (iii) take any
action that would make any representation or warranty of
the Stockholder contained herein untrue or incorrect in
any material respect or have the effect of preventing or
disabling the Stockholder from performing its obligations
under this Agreement. Any permitted transferee of Stock-
holder Shares must become a party to this Agreement and
any purported transfer of Stockholder Shares to a person
or entity that has not become a party hereto shall be
null and void.
(b) Until the earlier of the Outside Date and
the termination of the Merger Agreement in accordance
with its terms, the Stockholder will not, and will cause
its officers, directors, employees and agents not to,
directly or indirectly, (i) take any action to solicit,
initiate or encourage any Acquisition Proposal (as de-
fined in the Merger Agreement), or (ii) engage in negoti-
ations with, or disclose any nonpublic information relat-
ing to the Company or its subsidiaries, or afford access
to their respective properties, books or records to, any
person that may be considering making, or has made, an
Acquisition Proposal (but nothing in this Section 7(b)
shall prohibit any such person, solely in their capacity
as a director of the Company, from participating in
deliberations at a meeting of the board of directors of
the Company or voting with respect to any Acquisition
Proposal, provided, that no representatives of any person
making such Acquisition Proposal are present).
8. Entire Agreement. This Agreement (includ-
ing the documents and instruments referred to herein) (a)
constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with
respect to the subject matter hereof; (b) shall not be
assigned by operation of law or otherwise without the
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<PAGE>
prior written consent of the other parties hereto, except
that Acquiror may assign, in its sole discretion, all or
any of its rights, interests and obligations hereunder to
any direct or indirect wholly owned subsidiary of Acquir-
or; (c) shall not be amended, altered or modified in any
manner whatsoever, except by a written instrument execut-
ed by the parties hereto; and (d) shall be governed in
all respects, including validity, interpretation and
effect, by the laws of the State of Delaware (without
giving effect to the provisions thereof relating to
conflicts of law).
9. Remedies. The parties acknowledge that it
would be impossible to fix money damages for violations
of this Agreement and that such violations will cause
irreparable injury for which adequate remedy at law is
not available and, therefore, this Agreement must be
enforced by specific performance or injunctive relief.
The parties hereto agree that any party may, in its sole
discretion, apply to any court of competent jurisdiction
for specific performance or injunctive or such other
relief as such court may deem just and proper in order to
enforce this Agreement or prevent any violation hereof
and, to the extent permitted by applicable law, each
party waives any objection or defense to the imposition
of such relief. Nothing herein shall be construed to
prohibit any party from bringing any action for damages
in addition to an action for specific performance or an
injunction for a breach of this Agreement.
10. Legends on Certificates. Until such time
as this Agreement shall terminate pursuant to Section 4
hereof, all certificates representing Stockholder Shares
shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE TERMS OF A STOCKHOLDER VOT-
ING AND PROFIT SHARING AGREEMENT, DATED AS OF
OCTOBER 10, 1994, BY AND BETWEEN NATIONAL MED-
ICAL ENTERPRISES, INC. AND THE STOCKHOLDER.
ANY TRANSFEREE OF THESE SHARES TAKES SUBJECT TO
THE TERMS OF SUCH AGREEMENT, COPIES OF WHICH
ARE ON FILE AT THE OFFICES OF AMERICAN MEDICAL
HOLDINGS, INC., 14001 DALLAS PARKWAY, SUITE
200, DALLAS, TEXAS 76380.
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<PAGE>
11. Parties in Interest. Subject to the
provisions of Section 8(b) hereof, this Agreement shall
be binding upon and inure to the benefit of and be en-
forceable by the parties hereto and their respective
successors, permitted assigns, heirs, executors, adminis-
trators and other legal representatives, and nothing in
this Agreement, express or implied, is intended to confer
upon any other person any rights or remedies of any
nature whatsoever under or by reason of this Agreement.
12. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
be deemed to be an original, but all of which shall
constitute one and the same agreement.
13. Definitions. Unless the context otherwise
requires, the following terms shall have the following
respective meanings:
(a) "Beneficial Owner" has the meaning set
forth in Rule 13d-3 of the Rules and Regulations to the
Exchange Act, and "Beneficially Owned" and "Beneficially
Owns" shall have correlative meanings; provided, however,
that for purposes of this Agreement a person shall be
deemed to be the Beneficial Owner of Company Shares that
may be acquired pursuant to the exercise of an option or
other right regardless of when such option is exercis-
able.
(b) "person" means a corporation, association,
partnership, joint venture, organization, business,
individual, trust, estate or any other entity or group
(within the meaning of Section 13(d)(3) of the Exchange
Act).
(c) The terms "Affiliates" and "Associate"
shall have the respective meanings ascribed to such terms
in Rule 12b-2 under the Exchange Act, as in effect on the
date hereof (the term "registrant" in said Rule 12b-2
meaning in this case the Company).
14. Notices. All notices and other communica-
tions hereunder shall be in writing and shall be deemed
given if delivered personally, telecopied (which is
confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the follow-
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<PAGE>
ing addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to Acquiror to:
National Medical Enterprises, Inc.
2700 Colorado Boulevard
Santa Monica, California 90404
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Telecopy No. (213) 687-5600
Attention: Thomas C. Janson, Jr.
(b) If to the Stockholder, to the address set
forth on the signature page, hereto.
15. Interpretation. The headings contained in
this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
16. Severability. Any term or provision of
this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffec-
tive to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provi-
sions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
17. Further Assurances. The Stockholder
further agrees to execute all additional writings, con-
sents and authorizations as may be reasonably requested
by Acquiror to evidence the agreements herein or the
powers granted to the Proxy hereby or to enable the Proxy
to exercise those powers.
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<PAGE>
18. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of
the State of Delaware without regard to the principles of
conflicts of laws thereof.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above writ-
ten.
NATIONAL MEDICAL ENTERPRISES, INC.
By: /s/ Jeffrey C. Barbakow
-------------------------
Name: Jeffrey C. Barbakow
Title: Chairman and Chief
Executive Officer
GKH Investments, L.P.
By: GKH Partners, L.P.
its general partner
By: HGM Associates, L.P.,
a general partner
By: HGM Corporation,
its general partner
By: /s/ Harold S. Handelsman
-------------------------
Name: Harold S. Handelsman
Title: Vice President
No. of Shares: 24,719,168
GKH Private Limited
By: GKH Partners, L. P.
By: HGM Associates, L.P.,
a general partner
By: HGM Corporation,
its general partner
By: /s/ Harold S. Handelsman
-------------------------
Name: Harold S. Handelsman
Title: Vice President
No. of Shares: 934,596
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