EXHIBIT 4.5
PREFERRED STOCK CONVERSION AGREEMENT
PREFERRED STOCK CONVERSION AGREEMENT (this "Agreement"), dated as of this
16/th/ day of February, 1999, by and between Amedisys, Inc., a Delaware
corporation (the "Company"), ______________ ("Stockholder") and the beneficial
owners set forth on the signature page hereto.
WITNESSETH:
WHEREAS, Stockholder is presently the record holder of the number of shares
of Series A Convertible Preferred Stock, par value $.001 per share, of the
Company (the "Preferred Stock") set forth on Exhibit A attached hereto;
WHEREAS, the Preferred Stock is convertible into shares of common stock of
the Company, par value $.001 per share (the "Common Stock"), at a current
effective conversion rate of $4.625 per share (subject to reduction in
accordance with the terms of that certain Registration Rights Agreement (the
"Registration Rights Agreement") between Stockholder and the Company, dated as
of December 22, 1997 ) (the "Current Conversion Rate"); and
WHEREAS, Stockholder and the Company wish to amend the terms of the
Preferred Stock to, among other things, reduce the conversion rate of the
Preferred Stock on the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants,
conditions and agreements contained herein and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, each intending to be legally bound hereby, agree as follows:
ARTICLE 1.
CONVERSION OF PREFERRED STOCK
1.1 Reduction of Conversion Rate. Upon the terms and subject to the
conditions set forth in this Agreement, the Company and Stockholder hereby agree
that as of the Effective Date (as hereinafter defined in Section 2.1), the
conversion rate for the Preferred Stock shall be reduced from the Current
Conversion Rate to a conversion rate equal to $3.00 per share (the "Reduced
Conversion Rate").
1.2 Restriction on Transfer; Company Option. In consideration of and in
exchange for Stockholder's entitlement to the reduction of the conversion rate
of the Preferred Stock to the Reduced Conversion Rate, Stockholder (i) agrees,
until December 31, 1999, not to, without the prior written consent of the
Company, sell, transfer, assign, pledge, hypothecate or otherwise dispose of any
securities of the Company owned by Stockholder (other than in connection with a
tender offer, merger or similar business combination expressly approved by the
Continuing Directors (as defined below)); and (ii) hereby grants to the Company
an option (the "Option"), commencing on the Effective Date and expiring on
December 31, 1999 (the "Exercise Date"), to purchase up to thirty (30%) percent
(the "Option Cap") of the number of shares of Preferred Stock owned by
Stockholder and/or, if Stockholder shall have prior to December 31, 1999
converted any or all of the Preferred Stock into shares of Common Stock, the
number of shares of Common Stock acquired by Stockholder upon such conversion,
at an effective price of $3.25 (the "Exercise Price") per share of Common Stock
(whether such shares of Common Stock are outstanding following conversion or
underlie unconverted shares of Preferred Stock, the number of which shall be
calculated as if such shares of Preferred Stock had been converted into shares
of Common Stock at the Reduced Conversion Rate). By way of illustration only,
the maximum aggregate Exercise Price of the Company for Stockholder's shares of
Preferred Stock (assuming for this illustration that the number of shares of
Preferred Stock set forth on Exhibit A is accurate) shall be: the quotient of
100,000 (number of shares of Preferred Stock owned) divided by $3.00 (Reduced
Conversion Rate) multiplied by $3.25 (Exercise Price) and then multiplied by 0.3
(the Option Cap). For purposes of this Agreement, the term "Continuing
Directors" shall mean (i) any member of the Company's Board of Directors who is
such a member as of the date of this Agreement (a "Current Member") or (ii)
any person who subsequently becomes a
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member of the Board of Directors, if such person's nomination for election or
election to the Board of Directors is recommended or approved by at least two-
thirds of the Current Members.
1.3 Method of Exercise.
The Option may be exercised by the Company, in whole or in part, at any time
from the date of this Agreement until the Exercise Date, by written notice
directed to Stockholder, which notice shall be accompanied by full payment of
the Exercise Price for the number of shares with respect to which the Option is
being exercised. The Exercise Price shall be paid at the time of exercise by
means of a wire transfer or certified or bank check for immediately available
funds payable to the order of Stockholder. Upon payment by the Company of the
Exercise Price, Stockholder shall deliver to the Company its certificate or
certificates representing all of the shares of Common Stock and/or Preferred
Stock held by Stockholder along with a stock transfer power(s) duly endorsed in
blank by Stockholder. Upon receipt of the certificate or certificates and the
stock transfer power(s) set forth above, the Company shall issue to Stockholder
a new certificate(s) for the amount of shares previously owned by Stockholder
less the amount of shares purchased by the Company pursuant to the Option. The
Option may be exercised successively until the Option Cap.
ARTICLE 2.
EFFECTIVE DATE
2.1 Effective Date of Agreement. Subject to the satisfaction of the
conditions set forth in this Agreement on the date all notices and/or amendments
to the Company's Certificate of Designation required by the State of Delaware to
effectuate the transactions contemplated by this Agreement are duly filed, this
Agreement, including the reduction of the conversion rate to the
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Reduced Conversion Rate, and the restrictions on transfer and grant of Option
shall become effective (the "Effective Date").
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. The Company hereby
represents and warrants to Stockholder as follows:
(a) Authorization.
The execution, delivery and performance of this Agreement and consummation of
the transactions contemplated hereby have been duly authorized, adopted and
approved by the Board of Directors of the Company. The Company has taken all
necessary corporate action and has all necessary corporate power to enter into
this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Company and is the valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect, or by legal or equitable principles, relating
to or limiting creditors' rights generally and except that the remedy of
specific performance and injunctive and other forms of equitable relief are
subject to certain equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
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(b) Organization.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The Company has the corporate
power and authority to own and lease its properties and assets and to carry on
its business as it is now being conducted.
3.2 Representations and Warranties of Stockholder. Stockholder hereby
represents and warrants to the Company as follows:
(a) Authorization.
The execution, delivery and performance of this Agreement and consummation of
the transactions contemplated hereby have been duly authorized, adopted and
approved by Stockholder. Stockholder has taken all necessary action and has all
necessary power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by Stockholder and is the valid and binding obligation of Stockholder,
enforceable against it in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect, or by legal or equitable
principles, relating to or limiting creditors' rights generally and except that
the remedy of specific performance and injunctive and other forms of equitable
relief are subject to certain equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(b) Organization.
Stockholder is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it was formed. Stockholder has all requisite
power and authority to
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own and lease its properties and assets and to carry on its business as it is
now being conducted.
(c) Ownership of Company Shares.
Stockholder is the record owner of the shares of Preferred Stock set forth on
Exhibit A hereto for the beneficial owners set forth on the signature page
hereto, and such shares of Preferred Stock are not subject to any voting trust,
proxy arrangement, rights of first refusal, pledge, security interest, lien,
charge or other encumbrance agreement whatsoever.
(d) Representations and Warranties in Subscription Agreement.
Stockholder acknowledges that the representations and warranties made to the
Company in Section 2 of that certain Subscription Agreement between Stockholder
and Company, dated December 1997, are true and correct as of the date hereof in
all material respects, and shall be true and correct in all material respects on
and as of the Effective Date, with the same force and effect as though such
representations and warranties had been made on and as of the Effective Date.
(e) No Conflicts. The execution, delivery and performance of this
Agreement will not (i) conflict with, result in a breach of, or constitute a
default under the organizational documents of Stockholder, or any agreement or
other obligation to which Stockholder is a party or by which Stockholder or any
of its assets or properties are bound, or any judgment, decree, order, writ,
injunction, determination or award of any court or other governmental agency,
instrumentality or body applicable to Stockholder, or (ii) violate any law, rule
or regulation applicable to Stockholder or its property.
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3.3 Survival of Representations and Warranties. The representations and
warranties of the parties contained herein shall survive the execution and
delivery of this Agreement.
ARTICLE 4.
COVENANTS
4.1 Covenants of the Company. The Company hereby covenants and agrees that:
(a) Best Efforts and Cooperation; Further Assurances. Prior to the
Effective Date, with the cooperation of Stockholder where appropriate, the
Company shall:
(i) comply with all filing requirements which Federal, state or local
law may impose on the Company with respect to the transactions contemplated
by this Agreement, including but not limited to, the filing of an amendment
to the Certificate of Designation of the Company;
(ii) use its diligent efforts to take all actions necessary to be taken
in connection with the transactions contemplated by this Agreement; and
(iii) not take any action that would cause any representation or
warranty of it contained herein to be inaccurate, untrue, incomplete or
misleading.
4.2 Covenants of Stockholder. Stockholder hereby covenants and agrees that:
(a) Best Efforts and Cooperation; Further Assurances. Prior to the Effective
Date, with the cooperation of the Company where appropriate, Stockholder shall:
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(i) use its diligent efforts to take all actions necessary to be taken
in connection with the transactions contemplated by this Agreement; and
(ii) not take any action that would cause any representation or warranty
of it contained herein to be inaccurate, untrue, incomplete or misleading.
(b) Termination of Registration Rights Agreement. As of the Effective Date,
the Registration Rights Agreement is hereby terminated and rendered null and
void and Stockholder shall have no further rights under such agreement.
ARTICLE 5.
CONDITIONS
5.1 Conditions to Obligations of the Company. This Agreement shall not be
deemed to be effective unless each of the following conditions have been
fulfilled:
(a) Participation. The Company shall obtain the execution and delivery
of agreements substantially identical to this Agreement from holders of at least
sixty-seven (67%) percent of the total outstanding shares of the Preferred
Stock, including Stockholder; and
(b) Accuracy of Representations and Warranties; Performance of
Covenants.
Each of the representations and warranties of Stockholder was true, correct
and complete in all material respects when made and shall also be true, correct
and complete in all material respects on and as of the Effective Date, with the
same force and effect as if made on and as of the Effective Date. Stockholder
shall have performed and complied in all material respects
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with all agreements and covenants required by this Agreement to be performed by
Stockholder on or prior to the Effective Date. The condition set forth in this
Section 5.1 (b) may be waived by the Company.
5.2 Conditions to Obligations of Stockholder. This Agreement shall not be
deemed to be effective unless the following condition has been fulfilled:
(a) Accuracy of Representations and Warranties; Performance of Covenants.
Each of the representations and warranties of the Company set forth in this
Agreement was true, correct and complete in all material respects when made and
shall also be true, correct and complete in all material respects on and as of
the Effective Date. The Company shall have performed and complied in all
material respects with all agreements and covenants required by this Agreement
to be performed by the Company on or prior to the Effective Date. The condition
set forth in this Section 5.2 (a) may be waived by Stockholder.
ARTICLE 6.
MISCELLANEOUS
6.1 Fees and Expenses. Stockholder and the Company shall pay their own
respective fees and expenses incident to negotiation, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
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6.2 Modification, Amendments and Waiver. The parties hereto may amend,
modify or otherwise waive any provision of this Agreement only by a written
instrument signed by Stockholder and the Company, acting only upon the approval
of the Continuing Directors.
6.3 Entire Agreement. This Agreement and the exhibits and other
documents referred to herein contain the entire agreement among the parties
hereto with respect to the transactions contemplated hereby and supersede all
prior agreements with respect thereto, whether written or oral.
6.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard, however, to
such jurisdiction's principles of conflicts of laws.
6.5 Notices. Any notice, request, instruction or other document to be
given hereunder by any party hereto shall be in writing and delivered
personally, by facsimile transmission or telex, or sent by commercial overnight
delivery service or registered or certified mail (return receipt requested),
postage prepaid, addressed as follows:
If to Stockholder: _________________________
If to the Company: Amedisys, Inc.
3029 S. Sherwood Forest Blvd.
Suite 300
Baton Rouge, LA 70816
Attention: Michael Lutgring, Esq.
Facsimile: (504) 295-9678
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with a copy to: Kirkpatrick & Lockhart LLP
1251 Avenue of the Americas 45th Floor
New York, NY. 10020
Attn: Stephen R. Connoni
Facsimile: (212) 536-3901
or to such other persons or addresses as may be designated in writing by the
party to receive such notice. If sent as aforesaid, the date any such notice
shall be deemed to have been delivered is on the date of transmission of a
facsimile or telex, the day after delivery to a commercial overnight delivery
service, or five days after delivery into a United States Postal facility.
6.6 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6.7 Severability of Provisions. The provisions of this Agreement shall
be considered severable in the event that any of such provisions are held by a
court of competent jurisdiction to be invalid, void or otherwise unenforceable.
Such invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as possible in term and intent to those provisions deemed to be invalid,
void or otherwise unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest extent permitted by
law.
6.8 Headings. The headings set forth in the articles and sections of
this Agreement and in the schedule to this Agreement are inserted for
convenience of reference only and shall not be deemed to constitute a part
hereof.
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6.9 No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto.
6.10 Amendments to Certificate of Designation. By its execution of this
Agreement, Stockholder hereby consents to the Company's filing of an amendment
to the Certificate of Designation relating to the Preferred Stock to reflect and
effectuate the transactions contemplated by this Agreement. For purposes of
Section 7(c) of the Company's Certificate of Designation relating to the
Preferred Stock, the undersigned hereby waives any requirement that a meeting of
the holders of the Preferred Stock be called to vote on the amendment of such
Certificate of Designation.
6.11 Deemed Effective Date. Notwithstanding anything to the contrary
contained herein, for purposes of any conversion of Preferred Stock,
Stockholder's agreement to the reduction of the conversion rate to the Reduced
Conversion Rate shall, subject to this Agreement becoming effective as provided
herein, be deemed to have become effective on December 31, 1998.
6.12 Beneficial Owners. The parties hereto acknowledge that ___________
is the record owner of the Preferred Stock holding such Stock as nominee for the
beneficial owners set forth on the signature page hereto. By execution of this
Agreement, the beneficial owners agree to the terms of this Agreement and to be
joined in the representations, warranties, covenants and other agreements set
forth in this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Preferred Stock Conversion
Agreement to be executed and delivered on the date and year first above written.
AMEDISYS, INC.
By:______________________
_________________________
By:______________________
BENEFICIAL OWNERS:
___________________________
___________________________
___________________________
___________________________
___________________________
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EXHIBIT A
Number of
Name of Shares of Series A
Stockholder Convertible Preferred Stock
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