Exhibit 10.08
FIRST AMENDMENT
TO WARRANTHOLDERS RIGHTS AGREEMENT
THIS FIRST AMENDMENT (this "FIRST AMENDMENT") TO THAT CERTAIN
WARRANTHOLDERS RIGHTS AGREEMENT dated as of July 15, 1998 (the "WARRANTHOLDERS
RIGHTS AGREEMENT"), made and entered into as of July 14, 1999, among VISTACARE,
INC., a Delaware corporation (together with its successors, the "COMPANY"), the
stockholders signatories hereto (together with their respective successors, the
"CURRENT STOCKHOLDERS"), and NATIONSCREDIT COMMERCIAL CORPORATION
("NATIONSCREDIT"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings given such terms in the Warrantholders Rights
Agreement.
STATEMENT OF FACTS
WHEREAS, the Company, Vista Hospice Care, Inc., a Delaware corporation
which is a wholly-owned subsidiary of the Company (the "BORROWER"), certain
Lenders from time to time party thereto (the "LENDERS") and NationsCredit, as
agent for the Lenders, entered into that certain Credit Agreement, dated as of
March 30, 1998 (as amended and restated by that certain Amended and Restated
Credit Agreement dated as of July 15, 1998, as further amended by that certain
First Amendment to Amended and Restated Credit Agreement dated as of July 14,
1999, and as further amended by that certain Second Amendment to Amended and
Restated Credit Agreement dated as of the date hereof, and as amended hereafter
from time to time, the "CREDIT AGREEMENT"), whereby the Lenders agreed to make
certain Loans to the Company, subject to the terms, covenants and conditions
contained in the Credit Agreement; and
WHEREAS, the Company has executed and delivered to NationsCredit the
Warrant dated July 14, 1999 (the "WARRANT"), pursuant to which NationsCredit was
given the right to purchase 840,000 shares of Non-Voting Common Stock (as such
number may be adjusted in accordance with the terms of the Warrant) of the
Company at the Exercise Price (as defined in the Warrant), which Warrant was
issued, in part, in complete exchange for that certain warrant issued to
NationsCredit dated July 15, 1998;
WHEREAS, the Company, the Current Stockholders and NationsCredit
entered into the Warrantholders Rights Agreement to provide NationsCredit with
certain rights described therein; and
WHEREAS, the Company, the Current Stockholders and NationsCredit desire
to amend the Warrantholders Rights Agreement to modify certain terms of the
Warrantholders Rights Agreement as set forth in this Amendment and the Company,
the Current Stockholders and NationsCredit are willing to agree to such
modifications subject to the terms and conditions of this Amendment;
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, the
Current Stockholders and NationsCredit do hereby agree as follows:
STATEMENT OF TERMS
1. AMENDMENT TO WARRANTHOLDERS RIGHTS AGREEMENT. Subject to the
terms and conditions of this First Amendment, the Warrantholders Rights
Agreement shall be modified and amended as follows:
(A) The recital in the second paragraph on page one is hereby
deleted in its entirety and the following new recital is substituted in lieu
thereof:
WHEREAS, as of July 14, 1999, the Current Stockholders are the
beneficial owners of Common Stock (as defined herein) or of convertible
preferred stock, and NationsCredit has purchased and is the beneficial
owner of the Warrants (as defined herein) to purchase 840,000 shares of
Non-Voting Common Stock (as such number may be adjusted from time to
time in accordance with the terms of such Warrants); and
(B) The definition of "Warrants" in Article I is hereby deleted in
its entirety and the following new definition of "Warrants" is substituted in
lieu thereof:
"WARRANTS" means the Warrant or Warrants originally issued to
NationsCredit on July 14, 1999 exercisable for 840,000 shares of
Non-Voting Common Stock (as such number may be adjusted from time to
time in accordance with the terms of such Warrants), as such Warrants
may be transferred or otherwise assigned, but only to the extent not
theretofore exercised, redeemed or expired in accordance with their
respective terms.
2. NO OTHER AMENDMENTS. Except for the amendments expressly set
forth and referred to above, the Warrantholders Rights Agreement shall remain
unchanged and in full force and effect.
3. WAIVER OF PREEMPTIVE RIGHTS. By signing this First Amendment,
the Current Stockholders hereby waive any and all preemptive rights,
anti-dilution rights and similar rights they have or may in the future have with
respect to the issuance of the Warrants to NationsCredit.
4. COUNTERPARTS. This First Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument.
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5. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE.
6. BINDING EFFECT. This First Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed and delivered as of the day and year specified at the
beginning hereof.
VISTACARE, INC.
By: /s/ Barry M. Smith
--------------------
Barry M. Smith
President
Address:
7702 East Doubletree
Suite 100
Scottsdale, Arizona 85258
Attention: Chief Financial Officer
Facsimile: (602) 648-4554
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BESSEMER VENTURE PARTNERS III
L.P.
By: Deer III & Co., L.L.C.,
its general partner
By: /s/ Robert. H. Beuscher
-----------------------
Robert H. Buescher
Manager
Address:
1400 Old Country Road
Suite 407
Westbury, NY 11590
Facsimile: (516) 997-2371
BVP III SPECIAL SITUATIONS L.P.
By: Deer III & Co., L.L.C.,
its general partner
By: /s/ Robert. H. Beuscher
------------------------
Robert H. Buescher
Manager
Address:
1400 Old Country Road
Suite 407
Westbury, NY 11590
Facsimile: (516) 997-2371
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HEALTH CARE CAPITAL
PARTNERS, L.P.
By: Ferrer Freeman Thompson &
Co., LLC, its general partner
By: /s/ Robert H. Thompson
-----------------------
Robert H. Thompson
Manager
Address:
The Mill
10 Glenville Street
Greenwich, CT 06831
Facsimile: (203) 532-8016
HEALTH CARE EXECUTIVE
PARTNERS, L.P.
By: Ferrer Freeman Thompson &
Co., LLC, its general partner
By: /s/ Robert H. Thompson
-----------------------
Robert H. Thompson
Manager
Address:
The Mill
10 Glenville Street
Greenwich, CT 06831
Facsimile: (203) 532-8016
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/s/ Barry M. Smith
-------------------
BARRY M. SMITH
Address:
7702 East Doubletree
Suite 100
Scottsdale, Arizona 85258
Attention: Chief Financial Officer
Facsimile: (602) 648-4559
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NATIONSCREDIT COMMERCIAL
CORPORATION
By: /s/ Brian K. Morris
---------------------
Brian K. Morris
Authorized Signatory
Address:
187 Danbury Road
Wilton, Connecticut 06897
Attn: Vista Hospice Care, Inc.
Account Officer
Facsimile: (203) 423-4102
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