-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, ovrbnCUP2BpQrG8VHoD1HuK0kwYyfcDTAgQfmXxLlx31eZThHVMTjn7re89+Lah1 O40IbXF17mx+8Dl+HNSjtg== 0000906036-95-000002.txt : 19950210 0000906036-95-000002.hdr.sgml : 19950210 ACCESSION NUMBER: 0000906036-95-000002 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19950209 SROS: AMEX SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ADVANCED MEDICAL INC CENTRAL INDEX KEY: 0000817161 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 133492624 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40264 FILM NUMBER: 95507159 BUSINESS ADDRESS: STREET 1: 9775 BUSINESSPARK AVE. CITY: SAN DIEGO STATE: CA ZIP: 92131 BUSINESS PHONE: 6195660426 FORMER COMPANY: FORMER CONFORMED NAME: ADVANCED MEDICAL TECHNOLOGIES INC DATE OF NAME CHANGE: 19901116 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PICOWER JEFFRY M CENTRAL INDEX KEY: 0000906036 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 950 THIRD AVENUE STREET 2: 30TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2129359860 SC 13D/A 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 12)* Advanced Medical, Inc. (Name of Issuer) Common Stock, $.01 par value (Title of Class of Securities) 00754C 10 1 (CUSIP Number) Keith L. Schaitkin, Esq. Gordon Altman Butowsky Weitzen Shalov & Wein 114 West 47th Street, 20th Floor New York, New York 10036 (212) 626-0800 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 3, 1995 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box //. Check the following box if a fee is being paid with the statement //. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7). NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 4 Pages List of Exhibits is on Page 3 SCHEDULE 13D - AMENDMENT NO. 12 This statement ("Statement") constitutes Amendment No. 12 to the Schedule 13D filed with the Securities and Exchange Commission (the "Commission") on April 7, 1989 (the "Original Filing"), as amended by (i) Amendment No. 1 (the "First Amendment") filed with the Commission on June 5, 1989; (ii) Amendment No. 2 (the "Second Amendment") filed with the Commission on May 18, 1990; (iii) Amendment No. 3 (the "Third Amendment") filed with the Commission on March 1, 1991; (iv) Amendment No. 4 (the "Fourth Amendment") filed with the Commission on April 12, 1991; (v) Amendment No. 5 (the "Fifth Amendment") filed with the Commission on November 27, 1991; (vi) Amendment No. 6 (the "Sixth Amendment") filed with the Commission on April 12, 1993; (vii) Amendment No. 7 (the "Seventh Amendment") filed with the Commission on January 4, 1994; (viii) Amendment No. 8 (the "Eighth Amendment") filed with the Commission on June 29, 1994; (ix) Amendment No. 9 (the "Ninth Amendment") filed with the Commission on August 19, 1994; (x) Amendment No. 10 filed with the Commission on September 14, 1994 (the "Tenth Amendment"); and (xi) Amendment No. 11 filed with the Commission on October 26, 1994 (the "Eleventh Amendment") concerning the common stock, par value $.01 per share ("Common Stock"), of Advanced Medical, Inc., a Delaware corporation (the "Issuer"). The Original Filing, the First Amendment, the Second Amendment and the Third Amendment were filed on behalf of Jeffry M. Picower, April C. Freilich and Decisions Incorporated, a Delaware corporation ("Decisions"). The Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment the Ninth Amendment, the Tenth Amendment and the Eleventh Amendment were, and this Statement is, filed on behalf of Mr. Picower, Ms. Freilich, Decisions and JA Special Limited Partnership, a Delaware limited partnership ("JA Special", and collectively with Mr. Picower, Ms. Freilich and Decisions, "Registrants"). This Statement hereby amends the Items identified below, or the particular paragraphs of such Items which are identified below, to reflect the execution of a letter agreement between Mr. Picower and the Issuer. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer Item 6 is hereby amended to add the following: On February 3, 1995, the Issuer and Decisions entered into an agreement which modifies and supplements certains terms related to the promissory notes dated January 4, 1994 and August 12, 1994, which were issued by the Issuer to Decisions (filed as Exhibit 18 to the Seventh Amendment and as Exhibit 20 to the Ninth Amendment, respectively). Item 7. Material to be Filed as Exhibits Exhibit 25 Modification Agreement dated February At Page 3, 1995, by and between Advanced Medical, Inc. and Decisions Incorporated SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: February 7, 1995 /s/ Jeffry M. Picower Jeffry M. Picower /s/ April C. Freilich April C. Freilich DECISIONS INCORPORATED By: /s/ April C. Freilich April C. Freilich President JA SPECIAL LIMITED PARTNERSHIP By: Decisions Incorporated General Partner By: /s/ April C. Freilich April C. Freilich President EX-10 2 MODIFICATION AGREEMENT Agreement dated this 3rd day of February, 1995 by and between Advanced Medical, Inc., a Delaware corporation ("AM") and Decisions Incorporated, a Delaware corporation ("Decisions"). Background AM and Decisions are parties to a promissory note dated January 4, 1994, in the original principal amount of $6 million (as amended by a letter agreement dated May 13, 1994, the "First Note") (which matures no later than January 4, 2001) and a promissory note dated August 12, 1994 in the original principal amount of $6.5 million (which matures on January 4, 2001) (the "Second Note" and together with the First Note, the "Decisions Notes"). AM currently has outstanding $60 million in original principal amount of 7.25 percent convertible subordinated debentures (the "Debentures") (which mature on January 15, 2002). AM desires to engage in one or more transactions (the "Transactions") pursuant to which, in consideration of the conversion of a portion of the Debentures into an aggregate of up to 2,847,457 million shares of common stock of AM in accordance with the terms of the Debentures (involving the conversion of approximately 86.1 percent of the outstanding principal amount of each such Debenture) and the surrender to AM of a portion of the Debentures (constituting, with respect to each such Debenture, the balance of such Debenture remaining outstanding following the conversion of 86.1 percent thereof as contemplated above), AM will issue to the holders of the Debentures, promissory notes in the form contemplated in the indenture attached hereto as Exhibit 1 (such notes, together with the related indenture and all of the terms and provisions thereof, collectively, the "New Notes") having an aggregate principal amount not to exceed $30 million (to be issued to each Debenture holder in an original principal amount equal to 50 percent of the outstanding principal amount of the Debentures converted and surrendered as contemplated above), due not more than four (4) years from the date of issuance and bearing interest at the rate of 15 percent per annum. AM and Decisions desire to maintain the priority of the Decisions Notes with respect to final payment over the indebtedness currently embodied in the Debentures. Decisions desires to consent, pursuant to the terms of the Decisions Notes, to the issuance of the New Notes and the payment of interest and principal in accordance with the terms thereof, and AM and Decisions desire to amend the Decisions Notes in order to more clearly reflect the existing agreement of the parties regarding payments AM is permitted to make with respect to indebtedness of AM. NOW THEREFORE, the parties hereto, desiring to be bound, do hereby agree as follows: 1. Supplement to the Decisions Notes. In addition to the other terms and provisions of the Decisions Notes (as modified hereby) or of or with respect to the New Notes, AM hereby agrees that not less than ten (10) days prior to the date of the payment of any principal portion of any New Note (including, without limitation, any prepayment or redemption thereof or any similar payment thereunder, other than the payment of regularly scheduled interest thereon) AM will deliver written notice thereof to Decisions (the "Payment Notice") which notice shall specify the date upon which AM intends to make such payment. For a period of five (5) days following the date of receipt of the Payment Notice by Decisions (the "Exercise Period") Decisions will have the right (the "Acceleration Right") to declare all or any portion of the outstanding interest and principal under the Decisions Notes (or either of them) to be immediately due and payable, such right to be exercised by delivery of notice thereof (the "Decisions Notice") by Decisions to AM prior to the expiration of the Exercise Period. In the event of the exercise of the Acceleration Right by Decisions, all such outstanding amounts so specified by Decisions in the Decisions Notice (the "Accelerated Amounts") under the Decisions Notes shall immediately become due and payable and AM shall thereafter make no further payment under the New Notes or the Debentures until the Accelerated Amounts have been paid in full. Any failure of AM to comply with the terms and provisions of this Modification Agreement in any material respect shall, upon notice thereof by Decisions, constitute an Event of Default (as such term is defined in Decisions Notes) under the Decisions Notes. 2. Modification of First Note. The First Note is hereby modified as follows: (i) the following terms are added to Article I: "New Notes" shall have the meaning attached to it in the January 1995 Agreement. "January 1995 Agreement" shall mean the Modification Agreement dated February 3, 1995, between the Initial Noteholder and the Company. (ii) the following terms in Article I are amended and restated in their entirety as follows: "GECC Loan" shall mean the Loan Agreement, dated August 12, 1994, between IMED Corporation ("IMED") and General Electric Capital Corporation ("GECC"). "GECC 1993 Intercreditor Agreement" shall mean the Intercreditor Agreement dated January 3, 1994 between the Initial Noteholder and GECC, as modified by the terms of the Subordination Agreement, dated August 12, 1994, between the Initial Noteholder and GECC, as agent. (iii) Article II is hereby deleted and the following is substituted therefor: "ARTICLE II RANKING OF THE NOTE. Any Indebtedness of the Company evidenced by this Note shall be senior in right of payment to any of the Company's Indebtedness, including, without limitation, the Debentures and the New Notes, provided, however, that Indebtedness of the Company evidenced by this Note shall constitute Indebtedness ranking pari passu with the Indebtedness outstanding under the promissory note of the Company dated August 12, 1994, payable to Decisions Incorporated as the same has heretofore or is hereafter modified, amended or supplemented; and provided further, however, that subject to the terms and provisions of the New Notes and of the January 1995 Agreement, so long as there exists no Event of Default hereunder and no event which, with the passage of time or the giving of notice or both would result in the occurrence of an Event of Default, the Company may make: (i) any payment on any Indebtedness of the Company outstanding as of the date hereof in accordance with and subject to the terms thereof; (ii) any payment under the New Notes in accordance with and subject to the terms thereof; and (iii) any payment of regularly scheduled interest upon any other Indebtedness, when the same is due and payable in accordance with and subject to the terms thereof." (iii) Section 3.1 of Article III is amended and restated in its entirety as follows: "SECTION 3.1. Creation of Indebtedness. So long as this Note shall remain outstanding the Company shall not, without having obtained the prior written consent of the Noteholder, create, incur, assume or guarantee any Indebtedness: (i) which is secured by any lien, claim, security interest or other encumbrance on any assets, property or rights of the Company or any Affiliate, or upon the income derived therefrom; or (ii) the principal portion of which is due or payable prior to the payment in full of the Indebtedness evidenced by this Note: (x) in each case, other than those arising with respect to the GECC Loan; and (y) in the case of clause (ii), other than the New Notes." 3. Modification of the Second Note. The Second Note is hereby modified as follows: (i) The following terms are added to Article I: "New Notes" shall have the meaning attributed to it in the January 1995 Agreement. "January 1995 Agreement" shall mean the Modification Agreement dated February 3, 1995 between the Initial Noteholder and the Company. (ii) Article II is deleted and the following is substituted therefor: "ARTICLE II RANKING OF THE NOTE. Any Indebtedness of the Company evidenced by this Note shall be senior in right of payment to any of the Company's Indebtedness, including, without limitation, the Debentures and the New Notes, provided, however, that Indebtedness of the Company evidenced by this Note shall constitute Indebtedness ranking pari passu with the Indebtedness outstanding under the promissory note of the Company dated January 4, 1994, payable to Decisions Incorporated as the same has heretofore or is hereafter modified, amended or supplemented; and provided further, however, that subject to the terms and provisions of the New Notes and of the January 1995 Agreement, so long as there exists no Event of Default hereunder and no event which, with the passage of time or the giving of notice or both would result in the occurrence of an Event of Default, the Company may make: (i) any payment on any Indebtedness of the Company outstanding as of the date hereof in accordance with and subject to the terms thereof; (ii) any payment under the New Notes in accordance with and subject to the terms thereof; and (iii) any payment of regularly scheduled interest upon any other Indebtedness, when the same is due and payable in accordance with and subject to the terms thereof." (iii) Section 3.1 of Article III is amended and restated in its entirety as follows: "SECTION 3.1. Creation of Indebtedness. So long as this Note shall remain outstanding the Company shall not, without having obtained the prior written consent of the Noteholder, create, incur, assume or guarantee any Indebtedness: (i) which is secured by any lien, claim, security interest or other encumbrance on any assets, property or rights of the Company or any Affiliate, or upon the income derived therefrom; or (ii)the principal portion of which is due or payable prior to the payment in full of the Indebtedness evidenced by this Note: (x) in each case, other than those arising with respect to the GECC Loan Agreement; and (y) in the case of clause (ii), other than the New Notes." 4. Representations and Warranties of AM. AM makes the following representations and warranties to Decisions: (a) Organizational Status and Authority of AM. AM is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has the power and authority to enter into this Modification Agreement, to consummate the transactions contemplated hereby and otherwise carry out its obligations hereunder. The execution, delivery and performance of this Modification Agreement and the consummation of the transactions contemplated hereby by AM have been duly authorized by all necessary action on the part of AM. This Modification Agreement when executed and delivered by AM, constitutes the legal, valid and binding obligation of AM, enforceable against AM in accordance with its terms, subject, as to the enforcement of remedies, to applicable bankruptcy, insolvency, reorganization and other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity. (b) Modification Agreement Not in Breach of Other Instruments Affecting AM. The execution and delivery of this Modification Agreement, the consummation of the transactions contemplated by this Modification Agreement and the fulfillment of the terms of this Modification Agreement by AM will not result in the breach of any of the terms and provisions of, or constitute a default under, or conflict with, any agreement or other instrument by which AM is bound, AM's Certificate of Incorporation or bylaws or other comparable organizational documents, any judgment, decree, order or award of any court, governmental body or arbitrator applicable to AM, or any applicable law, rule or regulation. (c) No Consents Required. The execution and delivery of this Modification Agreement, the consummation of the transactions provided for in this Modification Agreement by AM and the fulfillment of the terms of this Modification Agreement by AM do not require the consent of any governmental authority or any other Person. 5. Representations and Warranties of Decisions. Decisions makes the following representations and warranties to AM: (a) Organizational Status and Authority of Decisions. Decisions is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has the power and authority to enter into this Modification Agreement, to consummate the transactions contemplated hereby and otherwise carry out its obligations hereunder. The execution, delivery and performance of this Modification Agreement and the consummation of the transactions contemplated hereby by Decisions have been duly authorized by all necessary action on the part of Decisions. This Modification Agreement when executed and delivered by Decisions, constitute the legal, valid and binding obligation of Decisions, enforceable against Decisions in accordance with its terms, subject, as to the enforcement of remedies, to applicable bankruptcy, insolvency, reorganization and other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity. (b) Modification Agreement Not in Breach of Other Instruments Affecting Decisions. The execution and delivery of this Modification Agreement, the consummation of the transactions contemplated by this Modification Agreement and the fulfillment of the terms of this Modification Agreement by Decisions will not result in the breach of any of the terms and provisions of, or constitute a default under, or conflict with, any agreement or other instrument by which Decisions is bound, Decision's Certificate of Incorporation or bylaws or other comparable organizational documents, any judgment, decree, order or award of any court, governmental body or arbitrator applicable to Decisions, or any applicable law, rule or regulation. (c) No Consents Required. The execution and delivery of this Modification Agreement, the consummation of the transactions provided for in this Modification Agreement by Decisions and the fulfillment of the terms of this Modification Agreement by Decisions do not require the consent of any governmental authority or any other Person. 6. Additional Covenants. (a) AM will not issue the New Notes: (i) other than in accordance with the terms of the Transaction as contemplated herein; (ii) in a form containing any material deviation from the form attached hereto as Exhibit 1 hereto; or (iii) in excess of $30 million in aggregate principal amount. (b) AM will not, without the prior written consent of Decisions, which may be withheld in its discretion, consent or agree to any modification, amendment or waiver of any term or provision of any New Note; provided, however, that the foregoing shall not be deemed to limit the right or ability of AM to comply with its obligations under Section 3 (Future Exchanges) under that certain agreement of even date between AM, Fidelity Select Healthcare Fund and Fidelity Convertible Securities Fund. 7. Miscellaneous. (a) No Waiver; Cumulative Remedies. No failure or delay on the part of Decisions in exercising any right, power or remedy under this Modification Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy under this Modification Agreement. The remedies provided in this Modification Agreement are cumulative and not exclusive of any remedies provided by law. (b) Amendments, Etc. No amendment, modification, termination, or waiver of any provision of this Modification Agreement nor consent to any departure by AM therefrom, shall in any event be effective unless the same shall be in writing and signed by Decisions, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No notice or demand on AM in any case shall entitle AM to any other or further notice or demand in similar or other circumstances. (c) Addresses for Notices, Etc. All notices, requests, demands, directions and other communications provided for under this Modification Agreement (including, without limitation, Section 1 hereof) shall be in writing and shall be effective when delivered at the addresses indicated below: If to the AM: Advanced Medical, Inc. 9775 Businesspark Avenue San Diego, California 92131 Attention: Chief Financial Officer If to the Decisions: Decisions Incorporated 22 Saw Mill River Road Hawthorne, New York 10532 Attention: President or, as to each party, at such other address as shall be designated by such party in a written notice to each other party complying as to delivery with the terms of this Section. (d) Payment on Non-Business Days. Whenever any payment to be made under this Modification Agreement shall be stated to be due on a Saturday, Sunday or holiday such payment may be made on the next succeeding business day, and such extension of time shall in such case be included in the computation of payment of interest. (e) Binding Effect; Assignment. This Modification Agreement shall be binding upon and inure to the benefit of such parties and their respective successors and assigns. (f) Governing Law. This Modification Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed wholly within such State. (g) Severability of Provisions. Any provision of this Modification Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. (h) Headings. Article and Section headings in this Modification Agreement are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose. (i) Debentures. The Indebtedness under the Decisions Notes, as modified and supplemented hereby, constitutes "Senior Indebtedness" within the meaning ascribed to such term under the indenture creating the Debentures and under the New Notes. (j) Counting Days. In computing any number of days for purposes of this Modification Agreement, all days will be counted, including Saturdays, Sundays and holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or holiday on which Federal banks are or may elect to be closed, then the final day will be deemed to be the next day which is not a Saturday, Sunday or such holiday. IN WITNESS WHEREOF, the parties hereto have caused this Modification Agreement to be executed by their proper corporate officers thereunto duly authorized as of the date first above written. ADVANCED MEDICAL, INC. By: /s/ Joseph W. Kuhn DECISIONS INCORPORATED By: /s/ Jeffry M. Picower -----END PRIVACY-ENHANCED MESSAGE-----