EXHIBIT 10.33 PHYSICIAN HEALTH CORPORATION AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT -----------------------------
EXHIBIT 10.33
PHYSICIAN HEALTH CORPORATION
AMENDMENT NO. 1 TO
SECURITIES PURCHASE AGREEMENT
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THIS AGREEMENT, dated as of July __, 1997, is among Physician Health
Corporation, a Delaware corporation (the "Company"), Weston Presidio Capital II,
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L.P. ("WPC") and the other Investors and Additional Investors signing below.
The parties agree as follows:
1. PURCHASE AGREEMENT; DEFINITIONS. This Agreement amends the Securities
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Purchase Agreement dated as of June 16, 1997 (the "Purchase Agreement"), among
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the Company, WPC, BancBoston Ventures, Inc., Mercury Asset Management plc, on
behalf of Rowan Nominees Limited and NatWest Ventures Investments Limited.
Capitalized terms not otherwise defined in this Agreement are used as defined in
the Purchase Agreement.
2. AMENDMENT OF PURCHASE AGREEMENT. The Purchase Agreement is amended as
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follows, effective as of the date hereof:
2.1 Amendment of Section 1. Section 1 of the Purchase Agreement is
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amended by:
(a) deleting Sections 1.15, 1.21, 1.51, 1.58 and 1.8 in their
entirety and replacing them with the following, in the order indicated:
1.15 "Common Stock" means the Voting Common Stock and the Non-
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Voting Common Stock, collectively.
1.21 "Conversion Warrants" means the warrants to purchase Common
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Stock at the conversion price of the Preferred Stock in substantially the form
of Exhibit 2.1A issuable upon a mandatory contingent redemption of the Preferred
Stock in accordance with section 6.2 of the Certificate of Designation.
1.51 "Preferred Stock" means Series B Voting Preferred and the
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Series B Non-Voting Preferred, collectively.
1.58 "Regulated Investor" means BancBoston Investments Inc.,
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National City Venture Corporation and any other Investor subject to regulation
by a Regulatory Agency.
1.8 "Certificate of Designation" is defined in Section 2.1."
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(b) adding the following two definitions immediately after Section
1.69:
"1.69A "Series B Non-Voting Preferred" means the Series B Non-Voting
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Redeemable Convertible Preferred Stock of the Company, par value $0.01 per
share.
1.69B "Series B Voting Preferred" means the Series B Redeemable
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Convertible Preferred Stock of the Company, par value $0.01 per share."
(c) adding the following definition immediately after Section 1.78:
"1.78A "Voting Common Stock" means the Voting Common Stock of the
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Company, par value $0.0025 per share."
2.2 Amendment of Section 2.1. The last sentence of Section 2.1 of the
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Purchase Agreement is amended to read in its entirety as follows: "The powers,
preferences and rights of the Preferred Stock are set forth in the Company's
Charter as amended through the Second Closing, including the Amended and
Restated Certificate of Designation, Preferences and Rights for the Preferred
Stock in the form set forth in Exhibit 2.1B (the "Certificate of Designation.")
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2.3 Amendment of Section 5.14. Section 5.14(c)(iv) of the Purchase
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Agreement is amended to read in its entirety as follows: "(iv) shares of Common
Stock or Prime Common Stock issued in connection with acquisitions permitted by
Section 5.9.2 (whether or not contemplated by an Investor Agreement or Material
Agreement).
2.5 Amendment of Section 5.10.5 Section 5.10.5 is amended to read in its
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entirety as follows:
"5.10.5 The Company may make mandatory redemptions of Class A Stock
and may pay dividends on the Class A Stock in additional shares of Class A
Stock, under its Charter, as now in effect. Prior to January 1, 2003, the
Company may pay cash dividends on the Class A Stock if and only if payment of
such cash dividends is consented to by the Required Holders. After January 1,
2003, the Company may pay cash dividends on the Class A Stock only to the extent
that such dividends accrue after January 1, 2003. The Company may make mandatory
redemptions of warrants held by NationsCredit Commercial Corporation in
accordance with the Material Agreements as now in effect."
2.4 Amendment to Exhibit 1. Exhibit 1 to the Purchase Agreement is
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amended to read in its entirety as Exhibit 1 attached hereto and made a part
hereof.
2.5 Amendment to Exhibit 2.1A. Exhibit 2.1A to the Purchase Agreement is
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amended to read in its entirety as Exhibit 2 attached hereto and made a part
hereof.
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2.6 Amendment to Exhibit 2.1B. Exhibit 2.1B to the Purchase Agreement is
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amended to read in its entirety as Exhibit 3 attached hereto and made a part
hereof.
3. JOINDER OF ADDITIONAL INVESTORS. The parties signing on the
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signature pages below as "Additional Investors" join in and become party to the
Purchase Agreement as Investors.
4. GENERAL. Except to the extent expressly amended hereby, the
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provisions of the Purchase Agreement shall remain unmodified and are confirmed
as being in full force and effect. The headings in this Agreement are for
convenience of reference only and shall not alter or otherwise affect the
meaning hereof. This Agreement, the Purchase Agreement and the other items
referred to herein or therein constitute the entire understanding of the parties
hereto with respect to the subject matter hereof and thereof and supersede all
present and prior agreements, whether written or oral. This Agreement is
intended to take effect as a sealed instrument and may be executed in any number
of counterparts, which together shall constitute one instrument and shall be
governed by and construed in accordance with the laws (other than the conflict
of laws rules) of The Commonwealth of Massachusetts, and shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns.
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The undersigned have executed this Agreement under seal as of the date
first above written.
PHYSICIAN HEALTH CORPORATION
By
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Title:
WESTON PRESIDIO CAPITAL II, L.P.
By: WESTON PRESIDIO CAPITAL
MANAGEMENT II, L.P.
By
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General Partner
BANCBOSTON INVESTMENTS INC.
By
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Title:
MERCURY ASSET MANAGEMENT plc, on
behalf of ROWAN NOMINEES LIMITED
By:
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Title:
NATWEST VENTURES INVESTMENTS LIMITED
By:
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Title:
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ST. XXXX VENTURE CAPITAL IV, LLC
By:
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Title:
PARTECH U.S. PARTNERS III C.V.
By:
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Title:
U.S. GROWTH FUND PARTNERS C.V.
By:
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Title:
AXA U.S. GROWTH FUND LLC
By:
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Title:
DOUBLE BLACK DIAMOND II LLC
By:
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Title:
ALMANORI LIMITED
By:
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Title:
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MULTINVEST LIMITED
By:
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Title:
NATIONAL CITY VENTURE CORPORATION
By:
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Title:
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Exhibit 1
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EXHIBIT 1 TO SECURITIES
PURCHASE AGREEMENT
INVESTORS, PREFERRED STOCK, PURCHASE
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WARRANTS AND PURCHASE PRICE
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Initial Closing Third Closing
Number of Shares of Second Closing Number of Number of Shares of
Preferred Stock/ Shares of Preferred Stock/ Preferred Stock/
Purchase Warrants and Purchase Warrants and Purchase Warrants and
Name and Address Respective Purchase Prices Respective Purchase Prices Respective Purchase Prices
---------------- -------------------------- -------------------------- --------------------------
WESTON PRESIDIO 1,529,958 shares of Series B N/A 621,000 shares of Series B
CAPITAL II, L.P. Voting Preferred (convertible Voting Preferred
One Federal Street into 1,529,958 shares of (convertible into 621,000
Xxxxxx, XX 00000 Voting Common Stock) at a shares of Voting Common
Tel: (000) 000-0000 purchase price of Stock) at a
Fax: (000) 000-0000 $6,119,832.00 purchase price of $2,484,000
Purchase Warrants for 509,986 N/A Purchase Warrants for 62,100
shares of Voting Common shares of Voting Common
Stock at an exercise price of Stock at an exercise price of
$4,590.86 and a purchase $248,151.60 and a purchase
price of $509.00. price of $248.40.
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Initial Closing Third Closing
Number of Shares of Second Closing Number of Number of Shares of
Preferred Stock/ Shares of Preferred Stock/ Preferred Stock/
Purchase Warrants and Purchase Warrants and Purchase Warrants and
Name and Address Respective Purchase Prices Respective Purchase Prices Respective Purchase Prices
---------------- -------------------------- -------------------------- --------------------------
BANCBOSTON 458,907 shares of Series B N/A 186,300 shares of Series B
INVESTMENTS INC./1/ Non-Voting Preferred Non-Voting Preferred
000 Xxxxxxx Xxxxxx (xxxxxxxxxxx into 458,907 (convertible into 186,300
31st Floor shares of Non-Voting Common shares of Non-Voting
Xxxxxx, XX 00000 Stock) at Common Stock)
Tel: (000) 000-0000 a price of $1,835,628.00. at a purchase price of
Fax: (000) 000-0000 N/A $745,200.
Purchase Warrants for 152,969 Purchase Warrants for 18,630
shares of Non-Voting Common shares of Non-Voting
Stock Common Stock at an
at an exercise price of exercise price of $74,445.48
$1,377.69 and a purchase and a purchase price of
price of $152.00. $74.52.
305,938 shares of Series B N/A 124,200 shares of Series B
MERCURY ASSET Voting Preferred Voting Preferred
MANAGEMENT PLC, ON (convertible into 305,938 (convertible into 124,200
BEHALF OF ROWAN shares of Voting Common shares of Voting Common
NOMINEES LIMITED Stock) at Stock)
c/o EGL Holdings a price of $1,223,752. N/A at a purchase price of
6600 Peachtree-Dunwoody $496,800.
Road Purchase Warrants for 101,979
Xxxxxxxx 000, Xxxxx 000 shares of Voting Common Purchase Warrants for 12,420
Xxxxxxx, XX 00000 Stock at an exercise price of shares of Voting Common
Tel: 000-000-0000 $918.46 and a purchase price Stock at an exercise price of
Fax: 000-000-0000 of $101.33 $49,630.32 and a purchase
price of $49.68.
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/1/ In accordance with BancBoston Investment Inc.'s status as a
Regulation Y Investor, these figures reflect automatic conversion from Series B
Voting Preferred into Series B NonVoting Preferred and from Purchase Warrants
for Voting Common Stock to Purchase Warrants for Non-Voting Common Stock.
BancBoston Investments Inc. originally received Series B Voting Preferred and
Purchase Warrants for Voting Common Stock in a transfer from BancBoston
Ventures, Inc.
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Initial Closing Third Closing
Number of Shares of Second Closing Number of Number of Shares of
Preferred Stock/ Shares of Preferred Stock/ Preferred Stock/
Purchase Warrants and Purchase Warrants and Purchase Warrants and
Name and Address Respective Purchase Prices Respective Purchase Prices Respective Purchase Prices
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NATWEST VENTURES
INVESTMENTS LIMITED 152, 969 shares of Series B N/A 62,100 shares of Series B
c/o EGL Holdings Voting Preferred Voting Preferred
6600 Peachtree-Dunwoody (convertible into 152, 969 (convertible into 62,100
Road shares of Voting Common shares of Voting Common
Xxxxxxxx 000, Xxxxx 000 Stock) at Stock)
Xxxxxxx, XX 00000 a price of $611,876 at a purchase price of
Tel: 000-000-0000 N/A $248,400
Fax: 000-000-0000
Purchase Warrants for 50,990 Purchase Warrants for 6,210
shares of Voting Common shares of Voting Common Stock
of an exercise price of Stock at an exercise price of
$459.23 and a purchase price $24,815.16 and
a purchase of $50.67 price of $24.84.
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Initial Closing Third Closing
Number of Shares of Second Closing Number of Number of Shares of
Preferred Stock/ Shares of Preferred Stock/ Preferred Stock/
Purchase Warrants and Purchase Warrants and Purchase Warrants and
Name and Address Respective Purchase Prices Respective Purchase Prices Respective Purchase Prices
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ST. XXXX VENTURE N/A 458,907 shares of 186,300 shares of Series B
CAPITAL IV, LLC Series B Voting Voting Preferred
c/o St. Xxxx Venture Capital, Preferred (convertible (convertible into 186,300
Inc. into 458,907 shares of shares of Voting Common
Normandale Office Park, Suite Voting Common Stock)
1940 Stock) at a purchase at a purchase price of
0000 Xxxxxxxxxx Xxxx Xxxx. price of $1,835,628.00 $745,200.
Xxxxxxxxxxx, XX 00000
Tel: 000-000-0000 N/A
Fax: 000-000-0000 Purchase Warrants for
152,969 shares of Purchase Warrants for 18,630
Voting Common Stock shares of Voting Common
at an exercise price of Stock at an
$1,377.69 and a exercise price of $74,445.48
purchase price of and a purchase price of
$152.00 $74.52.
PARTECH U.S. PARTNERS N/A 244,763 shares of 99,366 shares of Series B
III C.V. Series B Voting Voting Preferred
c/o Partech International Preferred (convertible (convertible into 99,366
00 Xxxxxxxxxx Xxxxxx, Xxxxx into 244,763 shares of shares of Voting Common
3200 Voting Common Stock)
Xxx Xxxxxxxxx, XX 00000 Stock) at a purchase at a purchase price of
Tel: 000-000-0000 price of $979,052.00 $397,464.00
Fax: 000-000-0000
N/A
Purchase Warrants for
81,588 shares of Purchase Warrants for 9,937
Voting Common Stock shares of Voting Common
at an exercise price of Stock at an
$734.81 and a exercise price of $39,708.25
purchase price of and a purchase price of
$81.07 $39.75.
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Initial Closing Third Closing
Number of Shares of Second Closing Number of Number of Shares of
Preferred Stock/ Shares of Preferred Stock/ Preferred Stock/
Purchase Warrants and Purchase Warrants and Purchase Warrants and
Name and Address Respective Purchase Prices Respective Purchase Prices Respective Purchase Prices
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U.S. GROWTH FUND N/A 133,507 shares of 54,199 shares of Series B
PARTNERS C.V. Series B Voting Voting Preferred
c/o Partech International Preferred (convertible (convertible into 54,199
00 Xxxxxxxxxx Xxxxxx, Xxxxx into 133,507 shares of shares of Voting Common
3200 Voting Common Stock)
Xxx Xxxxxxxxx, XX 00000 Stock) at a purchase at a purchase price of
Tel: 000-000-0000 price of $534,028 $216,796.00
Fax: 000-000-0000
Purchase Warrants
for 44,502 shares of Purchase Warrant
Voting Common Stock for 5,420 shares
at an exercise of Voting Common
price of $400.80 and a Stock at an exercise
purchase price of $44.22. price of $21,658.32
and a purchase price
of $21.68.
AXA U.S. GROWTH FUND N/A 66,753 shares of Series 27,099 shares of Series B
LLC B Voting Preferred Voting Preferred
c/o Partech International (convertible into (convertible into 27,099
00 Xxxxxxxxxx Xxxxxx, Xxxxx 00,000 shares of shares of Voting Common
3200 Voting Common Stock) at a
Xxx Xxxxxxxxx, XX 00000 Stock) at a purchase purchase price of $108,396.00
Tel: 000-000-0000 price of
Fax: 000-000-0000 $267,012.00
N/A Purchase Warrants for Purchase Warrants for 2,710
22,251 shares of shares of Voting Common
Voting Common Stock Stock at an exercise price of
at an exercise price of $10,829.16 and a purchase
$200.40 and a price of $10.84.
purchase
price of $22.11.
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Initial Closing Third Closing
Number of Shares of Second Closing Number of Number of Shares of
Preferred Stock/ Shares of Preferred Stock/ Preferred Stock/
Purchase Warrants and Purchase Warrants and Purchase Warrants and
Name and Address Respective Purchase Prices Respective Purchase Prices Respective Purchase Prices
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DOUBLE BLACK N/A 8,900 shares of Series 3,613 shares of Series B
DIAMOND II, LLC B Voting Preferred Voting Preferred
c/o Partech International (convertible into 8,900 (convertible into 3,613
00 Xxxxxxxxxx Xxxxxx, Xxxxx shares of Voting shares of Voting Common
3200 Common Stock) at a Stock)
Xxx Xxxxxxxxx, XX 00000 price of $35,600.00 at a purchase price of
Tel: 000-000-0000 $14,452.00.
Fax: 000-000-0000 N/A
Purchase Warrants for
2,967 shares of Voting Purchase Warrants for 361
Common Stock shares of Voting Common
at an exercise price of Stock at an
$26.72 and a purchase exercise price of $1,442.56
price of $2.95. and a purchase price of $1.44.
ALMANORI LIMITED N/A 3,382 shares of Series 1,373 shares of Series B
c/o Partech International B Voting Preferred Voting Preferred
00 Xxxxxxxxxx Xxxxxx, Xxxxx (xxxxxxxxxxx into 3,382 (convertible into 1,373
3200 shares of Voting shares of Voting Common
Xxx Xxxxxxxxx, XX 00000 Common Stock) at a Stock)
Tel: 000-000-0000 purchase price of at a purchase price of
Fax: 000-000-0000 $13,528.00. $5,492.00
N/A
Purchase Warrants for Purchase Warrants for 137
1,127 shares of Voting shares of Voting Common
Common Stock at an Stock at an exercise price of
exercise price of $547.45 and a purchase price
$10.15 and a purchase of $1.55.
price of $1.12
MULTINVEST LIMITED N/A 1,602 shares of Series 650 shares of Series B Voting
c/o Partech International B Voting Preferred Preferred
00 Xxxxxxxxxx Xxxxxx, Xxxxx (xxxxxxxxxxx into 1,602 (convertible into 650
3200 shares of Voting shares of Voting Common
Xxx Xxxxxxxxx, XX 00000 Common Stock) at a Stock)
Tel: 000-000-0000 purchase price of at a purchase price of
Fax: 000-000-0000 N/A $6,408.00 $2,600.00
Purchase Warrants for Purchase Warrants
534 shares of Voting for 65 shares of
Common Stock of an Voting Common Stock
exercise price of at an exercise
$4.81 and a purchase price of $259.74
price of $0.53 and a purchase
price of
$0.26.
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Initial Closing Third Closing
Number of Shares of Second Closing Number of Number of Shares of
Preferred Stock/ Shares of Preferred Stock/ Preferred Stock/
Purchase Warrants and Purchase Warrants and Purchase Warrants and
Name and Address Respective Purchase Prices Respective Purchase Prices Respective Purchase Prices
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NATIONAL CITY N/A 458,907 shares of 186,300 shares of Series B
VENTURE CORPORATION Series B Non-Voting Non-Voting Preferred
0000 X. 0xx Xxxxxx Preferred (convertible (convertible into 186,300
Suite 1010 into 458,907 shares of shares of Non-Voting
Xxxxxxxxx, XX 00000 Non-Voting Common Common Stock)
Tel: 000-000-0000 Stock) at a purchase at a purchase price of
Fax: 000-000-0000 price of $1,835,628.00 $745,200.
N/A Purchase Warrants for Purchase Warrants for 18,630
152,969 shares of Non- shares of Non-Voting
Voting Common Stock Common Stock at an
at an exercise price of exercise price of $74,445.48
$1,377.69 and a and a purchase price of
purchase price of $74.52.
$152.00
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