Exhibit 10.2
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This Amendment No. 1 to Stock Purchase Agreement (this "Amendment"), dated
as of October 17, 2003, among Universal Hospital Services, Inc., a Delaware
corporation (the "Company"), J.W. Childs Equity Partners III, L.P., a Delaware
limited partnership ("JWC Equity Partners III"), JWC Fund III Co-invest LLC, a
Delaware limited liability company (together with JWC Equity Partners III,
"Childs"), Halifax Capital Partners, L.P., a Delaware limited partnership
(together with Childs, the "Investors"), and the individuals listed as
Management Holders on the signature pages hereof (the "Management Holders"),
amends the Stock Purchase Agreement, dated as of September 26, 2003, among the
Company, the Investors and the Management Holders (the "Stock Purchase
Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings set forth in the Stock Purchase Agreement.
WHEREAS, the Company wishes to sell up to 33,000 additional shares of
Common Stock (the "Additional Shares") to members of the Company's management
and other key employees (the "New Investors") on the terms and conditions set
forth in the Stock Purchase Agreement and herein;
WHEREAS, prior to the Second Closing (as defined below), the Company shall
have identified the New Investors and the number of Additional Shares to be
purchased by each;
WHEREAS, the Company desires to issue and sell the Additional Shares to the
New Investors on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. Amendments to Stock Purchase Agreement
1.1 The first paragraph of the Stock Purchase Agreement is hereby amended
such that the New Investors are included in the definitions of "Purchasers" and
"Management Holders" for all purposes of the Stock Purchase Agreement and this
Amendment, except as expressly set forth herein.
1.2 The first recital of the Stock Purchase Agreement is hereby amended to
read in its entirety as follows:
"WHEREAS, the Company has authorized the sale and
issuance of up to 4,678,833.33 shares of its Common Stock
(the "Shares");
1.3 Article 1 of the Stock Purchase Agreement is hereby amended to add the
following definitions, in proper alphabetical order:
"'Additional Shares' - an aggregate of 33,000 shares of
Common Stock to be sold to the New Investors pursuant to
this Agreement, as amended, which comprise a portion of the
Shares."
"'New Investors' - those individuals who execute and
deliver a joinder agreement in substantially the form of
Exhibit H and purchase Additional Shares at the Second
Closing."
"'Second Closing' - as defined in Section 2.3."
1.4 Section 2.3 of the Stock Purchase Agreement is hereby amended to read
in its entirety as follows:
"Closings. The closing of the sale and purchase of the
Shares (other than the Additional Shares) under this
Agreement (the "Closing") shall take place at 10:00 a.m. on
the date that is two (2) Business Days following the
satisfaction (or waiver by the appropriate party or parties)
of the conditions set forth in Sections 7 and 8 hereof (the
"Closing Date"), at the offices of Kaye Scholer LLP, 425
Park Avenue, New York, New York 10022, or at such other time
or place as the Company and the Purchasers (other than the
New Investors) may mutually agree. At the Closing, subject
to the terms and conditions hereof, the Company will deliver
to each Purchaser (other than the New Investors) a
certificate representing the number of Shares purchased by
such Purchaser from the Company, as set forth on Schedule 1,
against payment by or on behalf of such Purchaser of the
purchase price therefor, as set forth on Schedule 1, by wire
transfer of immediately available funds. The closing of the
sale and purchase of the Additional Shares under this
Agreement (the "Second Closing") shall take place at 10:00
a.m. on October 28, 2003, at the offices of Dorsey & Whitney
LLP, 50 South Sixth Street, Minneapolis, Minnesota 55402, or
at such other time or place as the Company and the New
Investors may mutually agree. At the Second Closing, subject
to the terms and conditions hereof, the Company will deliver
to each New Investor a certificate representing the number
of Additional Shares purchased by such New Investor from the
Company against payment by or on behalf of such New Investor
of the purchase price therefor by wire transfer of
immediately available funds or other method agreed between
such New Investor and the Company."
1.5 Section 2.5 of the Stock Purchase Agreement is hereby amended such
that each reference therein to the "Purchasers" shall mean all of the Purchasers
other than the New Investors, and each reference therein to the "Shares" shall
mean the Shares other than the Additional Shares.
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1.6 The Stock Purchase Agreement is hereby amended by adding a new Section
2.6 thereto which shall read in its entirety as follows:
"2.6 Second Closing. At the Second Closing, each New
Investor will deliver to the Company:
(a) payment of the aggregate purchase price for the
Additional Shares to be purchased by such New Investor, as
set forth opposite such New Investor's name on Schedule 1,
by wire transfer to an account (or accounts) specified by
the Company in writing or other method agreed between such
New Investor and the Company;
(b) the Stockholders Agreement duly executed by such
New Investor; and
(c) a certificate executed by such New Investor
representing and warranting to the Company that (a) each of
such New Investor's representations and warranties that
contains an express materiality qualification was accurate
and complete in all respects as of the date of this
Agreement and is accurate and complete in all respects on
the Closing Date as if made on the Closing Date (unless the
representations and warranties address matters as of a
particular date, in which case they shall be true and
correct in all respects as of such date) and (b) all of the
other representations and warranties of such New Investor
were accurate and complete in all material respects as of
the date of this Agreement and are accurate and complete in
all material respects on the Closing Date as if made on the
Closing Date (unless the representations and warranties
address matters as of a particular date, in which case they
shall be true and correct in all material respects as of
such date)."
1.7 Article 7 of the Stock Purchase Agreement is hereby amended such that
each reference therein to the "Purchasers" shall mean all of the Purchasers
other than the New Investors, and each reference therein to the "Shares" shall
mean the Shares other than the Additional Shares.
1.8 The Stock Purchase Agreement is hereby amended to add a new Article 7A
which shall read in its entirety as follows:
"7A. Conditions Precedent to the Second Closing. The New
Investors' obligation to purchase the Additional Shares and
to take the other actions required to be taken by the New
Investors at the Second Closing, and the Company's
obligation to sell the Additional Shares and to take the
other actions required to be taken by the Company at the
Second Closing, are subject to the satisfaction, at or prior
to the Second Closing, of each of the following conditions
(any
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of which may be waived by the New Investors or the Company,
as the case may be, in whole or in part):
7A.1 The Closing shall have occurred.
7A.2 The Repurchases shall have been made."
1.9 Article 9 of the Stock Purchase Agreement is hereby amended such that
each reference therein to the "Purchasers" shall mean all of the Purchasers
other than the New Investors, and each reference therein to the "Shares" shall
mean the Shares other than the Additional Shares.
1.10 Section 11.7 of the Stock Purchase Agreement is hereby amended to add
the following at the end of such Section:
"The foregoing notwithstanding, each New Investor, by
purchasing Additional Shares and executing and delivering a
joinder agreement substantially in the form of Exhibit H
hereto, shall be added as a party to this Agreement with all
the rights and obligations of a "Management Holder" and a
"Purchaser" hereunder without the need for any party other
than the Company to consent to such addition. Schedule 1
shall thereupon be updated to reflect the addition of such
New Investor as a Purchaser. The Company shall give written
notice of such addition, including copies of such joinder
agreements and of Schedule 1 as so revised, to each other
Purchaser."
1.11 The Stock Purchase Agreement is hereby amended to add Exhibit H
thereto, which shall be in the form of Exhibit 1.11 hereto.
2. Miscellaneous
2.1 Except as herein expressly amended, the Stock Purchase Agreement is
hereby ratified and confirmed in all respects and shall remain in full force and
effect in accordance with its terms.
2.2 All references to the Stock Purchase Agreement in the Stock Purchase
Agreement and the other documents and instruments delivered pursuant to or in
connection therewith (including, without limitation, each Joinder Agreement)
shall mean the Stock Purchase Agreement as amended hereby and as may in the
future be amended, restated, supplemented or modified from time to time.
2.3 This Amendment may be executed by the parties hereto individually or
in combination, in two or more counterparts, each of which shall be an original
and all of which shall constitute one and the same agreement.
2.4 Delivery of an executed counterpart of a signature page by telecopier
shall be effective as delivery of a manually executed counterpart.
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2.5 This Amendment will be governed by the laws of the State of New York
without regard to conflicts of law principles.
2.6 The parties hereto shall, at any time and from time to time following
the execution of this Amendment, execute and deliver all such further
instruments and take all such further action as may be reasonably necessary or
appropriate in order to carry out the provisions of this Amendment.
* * * * *
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first written above.
UNIVERSAL HOSPITAL SERVICES, INC.
By: Gary D. Blackford
-----------------------------------
Name: Gary D. Blackford
Title: President and Chief
Executive Officer
J.W. CHILDS EQUITY PARTNERS III, L.P.
By: J.W. Childs Advisors III, L.P.,
General Partner
By: J.W. Childs Associates, L.P.,
General Partner
By: J.W. Childs Associates, Inc.,
General Partner
By: Steven G. Segal
-----------------------------------
Name: Steven G. Segal
Title: Vice President
JWC FUND III CO-INVEST, LLC
By: J.W. Childs Associates, L.P.,
Manager
By: J.W. Childs Associates, Inc.,
General Partner
By: Steven G. Segal
-----------------------------------
Name: Steven G. Segal
Title: Vice President
HALIFAX CAPITAL PARTNERS, L.P.
By: Halifax GenPar, L.P.
By: The Halifax Group, L.L.C.
By: Brent D. Williams
-----------------------------------
Name: Brent D. Williams
Title: Principal & Vice President
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MANAGEMENT HOLDERS
----------------------------------------
Gary D. Blackford
Exhibit 1.11
Joinder Agreement
The undersigned is executing and delivering this Joinder Agreement
pursuant to the Stock Purchase Agreement, dated as of September 26, 2003, as
amended by that Amendment No. 1 to Stock Purchase Agreement, dated as of October
17, 2003 (as so amended, the "Purchase Agreement"), among Universal Hospital
Services, Inc., a Delaware corporation (the "Company"), and the Purchasers
signatory thereto.
By executing and delivering this Joinder Agreement to the Company, the
undersigned hereby agrees to become a party to, to be bound by, and to comply
with the provisions of the Purchase Agreement in the same manner as if the
undersigned were an original signatory to such agreement as a Purchaser and a
Management Holder. In connection therewith, effective as of the date hereof, the
undersigned hereby makes the representations and warranties contained in the
Purchase Agreement except as otherwise specified below (check either or both, if
applicable):
I do not have substantial experience in evaluating and
investing in private placement transactions of the securities
of business entities similar to the Company, as represented in
Section 4.3 of the Purchase Agreement, and accordingly, do not
make the representations contained in that Section.
I am not an "accredited investor," as represented in Section
4.3(d) of the Purchase Agreement. ("Accredited investor" is
defined in Attachment A to this Joinder Agreement.)
Accordingly, the undersigned has executed and delivered this Joinder
Agreement as of the __ day of October, 2003.
---------------------------------
Signature of Purchaser
Attachment A
Accredited Investor Definition
"Accredited investor" means any person who comes within any of the
following categories, or who the Company reasonably believes comes within any of
the following categories, at the time of the sale of the securities to that
person:
(1) Any director, executive officer or general partner of the Company;
(2) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds $1,000,000; or
(3) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year.
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