Exhibit 4(m)
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INTEGRATED MEDICAL RESOURCES, INC.
E. STANLEY KARDATZKE,
TRUSTEE OF THE E. STANLEY KARDATZKE REVOCABLE TRUST
NOTE AND WARRANT AGREEMENT
This Agreement is made effective as of July 1, 1998, among Integrated
Medical Resources, Inc., a Kansas corporation (the "Company"), with its
principal office at 11320 West 79th Street, Lenexa, Kansas 66214 and the
Investor set forth on the signature page hereto (collectively, the "Investor").
1. Sale and Issuance of the Notes and the Warrants.
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1.1 Loan and Issuance of Notes. The Investor agrees, on the terms of
and subject to the conditions specified in this Agreement, to lend to the
Company the sum set forth on the signature page of this Agreement. The
Investor's loan shall be evidenced by a convertible subordinated promissory note
(the "Note") dated as of the Closing Date in the form attached hereto as Exhibit
A. These Notes, together with the other notes issued pursuant to this Agreement,
are collectively referred to as the "Notes." The securities into which the Notes
are convertible are referred to as the "Conversion Stock."
1.2 Warrants. Upon execution hereof, the Company shall issue to the
Investor a Stock Purchase Warrant (the "Warrant") dated as of the Closing Date
in the form attached hereto as Exhibit B to purchase a number of the class
and/or series of shares of the Company's capital stock issued in the Next
Financing (as defined in the Note). The capital stock expected to be issued in
the Next Financing is Common Stock of the Company. These Warrants, together with
the other stock purchase warrants issued pursuant to this Agreement, are
collectively referred to as the "Warrants." The securities for which the
Warrants are exercisable are referred to as the "Exercise Stock." The Notes and
the Conversion Stock, and the Warrants and the Exercise Stock, are collectively
referred to as the "Securities."
1.3 Delivery. Upon execution hereof, the Company shall deliver to
the Investor a Note in the principal amount set forth on the signature page
hereof and a Warrant to purchase shares of the Company's capital stock. The
Investor shall delivery the amount of such Investor's initial loan as set forth
on the signature page hereof.
1.4 Subsequent Loans. At any time prior to the completion of the
Next Financing (as defined in the Note), the Investor may loan to the Company
additional funds equal to up to the difference between the Investor's loan
commitment set forth on the signature page hereto less the amount of the
Investor's initial loan.
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2. The Company's Representations and Warranties.
The Company hereby represents and warrants to the Investor as follows:
2.1 Organization and Standing. The Company is a corporation duly
organized and validly existing under, and by virtue of, the laws of Kansas and
is in good standing under such laws. The Company has the requisite corporate
power to own and operate its properties and assets, and to carry on its business
as presently conducted. The Company is qualified to do business as a foreign
corporation in each jurisdiction in which the failure to be so qualified would
have a materially adverse impact on the business or financial condition of the
Company taken as a whole.
2.2 Corporate Power. The Company will have at the Closing Date all
requisite legal and corporate power to execute and deliver this Agreement, to
sell and issue the Notes and the Warrants hereunder, to issue the Warrant Shares
upon exercise of the Warrants, to issue the Conversion Stock issuable upon
conversion of the Notes and the Warrant Shares and to carry out and perform its
obligations under the terms of this Agreement.
2.3 Authorization. All corporate action on the part of the Company,
its directors and shareholders necessary for the sale and issuance of the Notes
and Warrants and the performance of the Company's obligations under this
Agreement, the Notes and the Warrants will be taken prior to the Closing. This
Agreement, each Investor's Note and each Investor's Warrant are valid, binding
and enforceable obligations of the Company, subject to applicable bankruptcy,
insolvency, reorganization or similar laws relating to or affecting the
enforcement of creditor's rights and to the availability of the remedy of
specific performance.
3. Representations, Warranties of the Investor. The Investor represents
and warrants to the Company upon the acquisition of the Note and the Warrant and
upon conversion of the Note and upon exercise of the Warrant as follows:
3.1 Binding Obligation. Each of this Agreement, the Note and the
Warrant issued to the Investor is a valid, binding and enforceable obligation of
the Investor, subject to applicable bankruptcy, insolvency, reorganization or
similar laws relating to or affecting the enforcement of creditor's rights and
to the availability of the remedy of specific performance.
3.2 Investment Experience. The Investor is either an accredited
investor within the meaning of Regulation D prescribed by the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Act"), or (by virtue of the Investor's experience in evaluating and investing
in private placement transactions of securities in companies similar to the
Company) the Investor is capable of evaluating the merits and risks of the
Investor's investment in the Company and has the capacity to protect the
Investor's own interests.
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3.3 Investment Intent. The Investor is acquiring the Securities for
investment for the Investor's own account and not with a view to, or for resale
in connection with, any distribution thereof. The Investor understands that the
Securities have not been registered under the Act by reason of a specific
exemption from the registration provisions of the Act that depends upon, among
other things, the bona fide nature of the investment intent as expressed herein.
3.4 Rule 144. The Investor acknowledges that the Securities must be
held indefinitely unless subsequently registered under the Act, or unless an
exemption from such registration is available. The Investor is aware of the
provisions of Rules 144 and 144A promulgated under the Act that permit limited
resale of securities purchased in a private placement subject to the
satisfaction of certain conditions.
3.5 Discussions with Management. The Investor has had an opportunity
to discuss the Company's business, management, and financial affairs with the
Company's management and to review the Company's facilities.
4. Registration Rights.
4.1 Grant of Rights. The Company hereby grants to the Investor, with
respect to the "Registrable Securities" (as defined below) the Registration
Rights set forth in Sections 12 through 21 of the Convertible Note dated March
5, 1998, as thereafter amended from the Company to the Investor. For purposes
hereof, Registrable Securities shall mean the Common Stock issued or issuable
upon (i) conversion of the Notes and (ii) exercise of the Warrants.
4.2 Acceptance by Investor. The Investor accepts the grant of
registration rights in the Convertible Note and hereby agrees to be bound by and
subject to the aforementioned sections of the Convertible Note.
5. Miscellaneous.
5.1 Waivers and Amendments. With the written consent of the record
holders of more than 50% of the principal amount of Notes then outstanding, the
obligations of the Company and the rights of the holders of the Securities under
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively and either for a specified period of time
or indefinitely), and with the same consent the Company, when authorized by
resolution of its Board of Directors, may enter into a supplementary agreement
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement; provided, however, that no
such waiver or supplemental agreement shall reduce the aforesaid percentage of
the principal amount of Notes the holders of which are required to consent to
any waiver or supplemental agreement. Upon the effectuation of each such waiver,
consent, agreement, amendment or modification the Company shall promptly give
written notice thereof to the record holders of the Securities who have not
previously consented thereto in writing. Neither this Agreement nor any
provisions hereof may be changed, waived, discharged or terminated orally, but
only by a signed statement in writing.
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5.2 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Kansas as such laws are applied to agreements between
Kansas residents entered into and to be performed entirely within Kansas.
5.3 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Investor and
the execution hereof.
5.4 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
5.5 Entire Agreement. This Agreement (including the exhibits attached
hereto) and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
5.6 Notices, etc. All notices and other communications required or
permitted hereunder shall be effective upon receipt and shall be in writing and
may be delivered in person, by telecopy, electronic mail, overnight delivery
service or U.S. mail, in which event it may be mailed by first-class, certified
or registered, postage prepaid, addressed (a) if to the Investor, at the
Investor's address set forth on the signature page of this Agreement, or at such
other address as the Investor shall have furnished the Company in writing, or,
until any such holder so furnishes an address to the Company, then to and at the
address of the last holder of such Securities who has so furnished an address to
the Company, or (b) if the Company, at its address set forth at the beginning of
this Agreement, or at such other address as the Company shall have furnished to
the Investor and each such other holder in writing.
5.7 Separability of Agreements; Severability of this Agreement. If any
provision of this Agreement shall be judicially determined to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
5.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
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IN WITNESS WHEREOF, the parties have caused this Note and Warrant
Agreement to be duly executed and delivered as of the day and year first written
above.
THE COMPANY: INTEGRATED MEDICAL RESOURCES, INC.
By: /s/ E. Stanley Kardatzke
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Name: E. Stanley Kardatzke
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Title: Chairman & CEO
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THE INVESTOR:
E. STANLEY KARDATZKE, TRUSTEE OF THE
E. STANLEY KARDATZKE REVOCABLE TRUST
By: /s/ E. Stanley Kardatzke
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Name: E. Stanley Kardatzke, Trustee
Address: 701 Destacada Ave.
Coral Gables, FL 33156
Amount of Initial Loan: $300,000
Amount of Loan Commitment: $1,000,000
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