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EXHIBIT 3.15
AGREEMENT
Agreement (the "Agreement") dated as of December 16, 1998, by
and between Ramsay Health Care, Inc., a Delaware corporation ("RHCI"), and Xxxx
Xxxxxx Holdings Pty. Limited , an Australian corporation ("Holdings" or
"Investor").
R E C I T A L S:
WHEREAS, Holdings is the owner of 142,486 shares of RHCI Class
B Preferred Stock, Series C, $1.00 par value (the "Series C Preferred Stock"),
which Series C Preferred Stock, as a result of various antidilution adjustments,
is presently convertible into 2,000,503 shares (the "First Preferred Shares") of
RHCI Common Stock, $.01 par value (the "Common Stock"); and
WHEREAS, Holdings is the owner of 100,000 shares of RHCI Class
B Preferred Stock, Series 1996, $1.00 par value (the "Series 1996 Preferred
Stock"), which Series 1996 Preferred Stock, as a result of various antidilution
adjustments, is presently convertible into 1,229,000 shares (the "Second
Preferred Shares"; and together with the First Preferred Shares, collectively,
the "Preferred Shares") of Common Stock; and
WHEREAS, Holdings desires to convert the Series C Preferred
Stock and the Series 1996 Preferred Stock into an aggregate of 3,229,503 shares
of Common Stock; and
WHEREAS, the Board of Directors of RHCI has authorized the
exchange of the Junior Subordinated Promissory Note due September 30, 2006 (the
"First Note") in the principal amount of $5,330,428 plus accrued and unpaid
interest thereon through the Closing Date (as hereinafter defined) (which at
December 16, 1998 is $92,661.76) for an aggregate number of shares of Common
Stock equal to (a) $5,423,089.76 divided by (b) an amount equal to the closing
bid price per share Common Stock on the Nasdaq Stock Market on the date hereof
that is $1.6875 per share (the "Per Share Purchase Price"), or 3,213,683 shares
of Common Stock (the "First Exchange Shares"); and
WHEREAS, the Board of Directors of RHCI has authorized the
exchange of the Junior Subordinated Promissory Note due September 30, 2005 (the
"Second Note"; and together with the First Note, collectively, the "Notes") in
the principal amount of $1,553,125 plus accrued and unpaid interest thereon
through the Closing Date (which at December 16, 1998 is $30,557.79) for an
aggregate number of shares of Common Stock equal to (a) $1,583,682.79 divided by
(b) the Per Share Purchase Price, or 938,479 shares of Common Stock (the "Second
Exchange Shares"; together with the First Exchange Shares, collectively, the
"Exchange Shares").
NOW, THEREFORE, in consideration of the foregoing, and the
mutual covenants and agreements contained herein, and for other good and
valuable
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consideration the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION I
ISSUANCE OF STOCK
Subject to the terms and conditions hereof, at the Closing (as
hereinafter defined), RHCI shall issue and deliver to Holdings the Preferred
Shares and the Exchange Shares.
SECTION II
REPRESENTATIONS AND WARRANTIES OF RHCI
RHCI hereby represents and warrants to the Investor, as of the
date hereof, that:
A. ORGANIZATION; GOOD STANDING. RHCI is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has full corporate power and authority to own
its properties and to conduct the businesses in which it is now engaged.
B. AUTHORITY. RHCI has the corporate power and authority to
issue and deliver the Shares in accordance with the terms hereof. RHCI has taken
all necessary corporate action to duly authorize the execution and delivery of
this Agreement, the performance by it of its covenants and agreements hereunder
and the consummation by it of the transactions contemplated hereby, and this
Agreement constitutes a valid and legally binding obligation of RHCI enforceable
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application relating to
or affecting the enforcement of creditors' rights or by general principles of
equity. Upon issuance and delivery of the Shares pursuant to the terms and
conditions hereof, the Shares will be validly issued, fully paid and
nonassessable shares of Common Stock.
C. NO LEGAL BAR; CONFLICTS. Neither the execution and delivery
of this Agreement by RHCI, nor the consummation by RHCI of the transactions
contemplated hereby, violates any provision of the Certificate of Incorporation
or By-Laws of RHCI or, subject to the expiration or termination of all
applicable waiting periods under the HSR Act (as hereinafter defined), any law,
statute, ordinance, regulation, order, judgment or decree of any court or
governmental agency binding on RHCI, or, subject to obtaining all necessary
lender consents, if any, conflicts with or results in any breach of any of the
terms of or constitutes a default under or results in the termination of or the
creation of any lien pursuant to the terms of any contract or agreement to which
RHCI is a party or by which RHCI or any of its assets is bound.
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D. CAPITALIZATION. After giving effect to the Closing and the
issuance of the Shares pursuant to this Agreement, as of the Closing Date, the
authorized capital stock of the Company consists of 31,800,000 shares, of which
(a) 30,000,000 shares consist of Common Stock, 18,808,651 of which are issued
and outstanding as of the date hereof and 26,190,316 of which shall be issued
and outstanding as of the Closing Date after giving effect to the Closing; (b)
800,000 shares consist of Class A Preferred Stock, par value $1.00 per share,
none of which are issued and outstanding as of the date hereof or as of the
Closing Date; and (c) 1,000,000 shares consist of Class B Preferred Stock, par
value $1.00 per share ("Class B Preferred Stock"), 152,231 shares of which have
been authorized and designated as "Series C," 142,486 of which are issued and
outstanding as of the date hereof and none of which shall be issued and
outstanding as of the Closing Date after giving effect to the Closing: 100,000
shares of which have been authorized and designated as "Series 1996," all of
which are issued and outstanding as of the date hereof and none of which shall
be issued and outstanding as of the Closing Dates after giving effect to the
Closing: 100,000 shares of which have been authorized and designated as "Series
1997," none of which are issued and outstanding as of the date hereof or as of
the Closing Date; and 4,000 shares of which have been authorized and designated
as "Series 0000-X," xxxx of which are issued and outstanding as of the date
hereof or as of the Closing Date. Except as set forth on Schedule II hereto (i)
no Options or Convertible Securities (each as defined below) are authorized or
outstanding, and (ii) there is no commitment of RHCI to issue any such Options
or Convertible Securities. For purposes hereof, the term "Convertible
Securities" shall mean any evidence of indebtedness, shares or other securities
convertible into or exchangeable for shares of Common Stock, and the term
"Options" shall mean rights, options or warrants to subscribe for, purchase or
otherwise acquire shares of Common Stock or Convertible Securities.
SECTION III
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to RHCI, as of the
date hereof, that:
A. AUTHORITY. Such Investor has the corporate power and
authority to execute and deliver this Agreement and to perform all of its
obligations hereunder, and no consent or approval of any other person or
governmental authority is required therefor. The execution and delivery of this
Agreement by such Investor, the performance by it of its covenants and
agreements hereunder and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary corporate action. This
Agreement constitutes a valid and legally binding obligation of such Investor,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application relating to or affecting the enforcement of creditors'
rights or by general principles of equity.
B. NO LEGAL BAR; CONFLICTS. Neither the execution and delivery
of this Agreement, nor the consummation by such Investor of the transactions
contemplated
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hereby, violates any provision of its Articles of Incorporation or By-Laws or,
subject to the expiration or termination of all applicable waiting periods under
the HSR Act, if any, law, statute, ordinance, regulation, order, judgment or
decree of any court or governmental agency binding on it, or, subject to
obtaining all necessary lender consents, if any, conflicts with or results in
any breach of any of the terms of or constitutes a default under or results in
the termination of or the creation of any lien pursuant to the terms of any
contract or agreement to which such Investor is a party or by which it or any of
its assets is bound.
C. INVESTMENT IN RHCI.
(i) the Investor understands that RHCI proposes to
issue and deliver to it the shares of Common Stock pursuant to this Agreement
without compliance with the registration requirements of the Securities Act of
1933, as amended (the "Securities Act"); that for such purpose RHCI will rely
upon the representations and warranties of the Investor contained herein; and
that such non-compliance with registration is not permissible unless such
representations and warranties are correct.
(ii) The Investor understands that, under existing
rules of the Securities and Exchange Commission (the "SEC"), it may be unable to
sell the shares of Common Stock except to the extent they may be sold (i)
pursuant to an effective registration statement covering the such shares
pursuant to the Securities Act and applicable state securities laws or an
applicable exemption therefrom or (ii) in a bona fide private placement to a
purchaser who shall be subject to the same restrictions on any resale or (iii)
subject to the restrictions contained in Rule 144 under the Securities Act
("Rule 144").
(iii) The Investor is familiar with the provisions of
Rule 144 and the limitations upon the availability and applicability of such
rule.
(iv) The Investor is a sophisticated investor
familiar with the type of risks inherent in the acquisition of restricted
securities such as the Common Stock and its financial position is such that it
can afford to retain such securities for an indefinite period of time without
realizing any direct or indirect cash return on its investment.
(v) The Investor has such knowledge and experience in
financial, tax and business matters so as to enable it to utilize the
information made available to it in connection with the issuance of the Common
Stock to it and to evaluate the merits and risks of an investment in the Common
Stock and to make an informed investment decision with respect thereto.
(vi) The Investor is acquiring the Common Stock as an
investment for its sole account, and without any present view towards the sale
or other distribution thereof.
(vii) The Investor is an "accredited investor" as
that term is defined in Rule 501 of Regulation D promulgated under the
Securities Act.
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SECTION IV
CONDITIONS TO CLOSING; EFFECTIVE DATE
1.A. CONDITIONS TO OBLIGATIONS OF RHCI TO CLOSING. The
obligations of RHCI to consummate the closing of the transactions contemplated
by the Agreement shall be subject to the satisfaction of each and every one of
the following conditions, on or before the Closing Date (as hereinafter
defined), all or any of which may be waived, in whole or in part, by RHCI:
(i) REPRESENTATIONS AND WARRANTIES. All
representations and warranties of the Investor contained in this Agreement shall
be true and correct in all material respects at and as of the Closing Date as
though such representations and warranties were made at and as of such time.
(ii) DELIVERIES. The Investor shall have made or
stand willing and able to make all the deliveries to RHCI set forth in Section
V(1)(B) hereof.
(iii) NO ACTION OR OTHER PROCEEDING PENDING. No
action, proceeding, investigation, regulation or legislation shall have been
instituted, threatened or proposed before any court, governmental agency or
legislative body to enjoin, restrain, prohibit or obtain substantial damages in
respect of, or which is related to, or arises out of, this Agreement or the
consummation of the transaction contemplated hereby.
B. CONDITIONS TO OBLIGATIONS OF THE INVESTOR TO CLOSING. The
obligations of the Investor to consummate the closing of the transactions
contemplated by this Agreement shall be subject to the satisfaction, on or
before the Closing Date, of each and every one of the following conditions, all
or any of which may be waived, in whole or in part, by the Investor:
(i) REPRESENTATIONS AND WARRANTIES. All
representations and warranties of RHCI contained in this Agreement shall be true
and correct in all material respects at and as of the Closing Date as though
such representations and warranties were made at and as of such time.
(ii) DELIVERIES. RHCI shall have made or stand
willing and able to make all the deliveries to the Investor set forth in Section
V(1)(C) hereof.
(iii) NO ACTION OR OTHER PROCEEDING PENDING. No
action, proceeding, investigation, regulation or legislation shall have been
instituted, threatened or proposed before any court, governmental agency or
legislative body to enjoin, restrain, prohibit or obtain substantial damages in
respect of, or which is related to, or arises out of, this Agreement or the
consummation of the transaction contemplated hereby.
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SECTION V
CLOSING AND CLOSING DELIVERIES
1.A. CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") shall occur on December 16, 1998 (the "Closing
Date"), and shall be held at the offices of the Corporation set forth in Section
VI below, commencing at 10:00 a.m. local time, or at such other time and place
as RHCI and the Investor may mutually agree.
B. DELIVERIES BY THE INVESTOR. Subject to the terms and
conditions hereof, on the Closing Date Holdings shall deliver to RHCI:
(a) certificates representing the Series C
Preferred Stock and the Series 1996
Preferred Stock, and each of the Notes,
all for cancellation; and
(b) such other certificates or documents as
may be reasonably requested by RHCI.
C. DELIVERIES BY RHCI. Subject to the terms and conditions
hereof, on the Closing Date, RHCI shall deliver to Holdings:
(a) certificates registered in the name of
Holdings and representing the Shares;
and
(b) such certificates or documents as may be
reasonably requested by the Investor
SECTION VI
MISCELLANEOUS
A. NOTICES. All notices, requests or instructions hereunder
shall be in writing and delivered personally or sent by registered or certified
mail, postage prepaid, or sent via facsimile transmission as follows:
(1) if to RHCI:
Columbus Center
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
(2) if to the Investor:
000 Xxxxxxx Xxxxxxx
Xx. Xxxxxxxx XXX 0000
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Australia
Attention: Xxxx X. Xxxxxx
Telecopier: 011-612-94-333-460
Telephone: 000-000-00-000-000
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered, two days after the date of mailing, if mailed, or on the day
of transmission, if sent via facsimile provided telephonic confirmation of
receipt is obtained promptly after completion of transmission.
B. SURVIVAL OF REPRESENTATIONS. Each representation, warranty,
covenant and agreement of the parties hereto herein contained shall survive the
execution of this Agreement, notwithstanding any investigation at any time made
by or on behalf of any party hereto.
C. ENTIRE AGREEMENT. This Agreement and the documents referred
to herein contain the entire agreement between the parties hereto with respect
to the transactions contemplated hereby, and no modification hereof shall be
effective unless in writing and signed by the party against which it is sought
to be enforced.
D. ASSIGNMENT. This Agreement shall not be assignable by RHCI,
or the Investor except pursuant to a writing executed by each of the parties
hereto; provided, however, that the Investor may assign this Agreement to any
corporation or other entity directly or indirectly controlled by Xxxx X. Xxxxxx
and provided further that any party hereto may assign this Agreement and its
rights hereunder to any bank or other financial institution as collateral
security in connection with any lending transaction.
E. INVALIDITY, ETC. If any provision of this Agreement, or the
application of any such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby.
F. EXPENSES. Each of the parties hereto shall bear such
party's own expenses in connection with this Agreement and the transactions
contemplated hereby.
G. HEADINGS; GENDER. The headings of this Agreement are for
convenience of reference only and are not part of the substance of this
Agreement. In this Agreement references to a particular gender shall include the
other genders as the context requires.
H. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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I. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable in the
case of agreements made and to be performed entirely within such State.
J. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first above written.
RAMSAY HEALTH CARE, INC.
By:
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Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
XXXX XXXXXX HOLDINGS PTY. LIMITED
By:
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Name: Xxxxx X. Xxxxx
Title: Director