-----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, BfwsePbdV5x37MNqiq5BZsnxVfSDtPQdAWsX/jl70rsjYt7PtWkuZxXow3/nUVQH 2qOJRxq900DIrDdwbldf1g== 0000898430-95-000856.txt : 19950516 0000898430-95-000856.hdr.sgml : 19950516 ACCESSION NUMBER: 0000898430-95-000856 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19950331 FILED AS OF DATE: 19950515 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMSERV HEALTHCARE INC CENTRAL INDEX KEY: 0000078302 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HELP SUPPLY SERVICES [7363] IRS NUMBER: 941627467 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-08547 FILM NUMBER: 95538949 BUSINESS ADDRESS: STREET 1: 3252 HOLIDAY COURT #204 CITY: LA JOLLA STATE: CA ZIP: 92037 BUSINESS PHONE: 6195971000 MAIL ADDRESS: STREET 1: 3252 HOLIDAY COURT STREET 2: SUITE 204 CITY: LA JOLLA STATE: CA ZIP: 92037 FORMER COMPANY: FORMER CONFORMED NAME: AMSERV INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: PHONE A GRAM SYSTEM INC DATE OF NAME CHANGE: 19871101 FORMER COMPANY: FORMER CONFORMED NAME: PETERSEN FRED J CO INC DATE OF NAME CHANGE: 19750131 10-Q 1 FORM 10-Q FORM 10-Q SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 1995 ------------------------------------------------ OR [_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ______________________ to ______________________ Commission file number 0-8547 ---------------------- AMSERV HEALTHCARE INC. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in charter) DELAWARE 94-1627467 - ------------------------------- ------------------- (State or other jurisdiction (I.R.S. Employer incorporation or organization) Identification No.) 3252 Holiday Court, #204, La Jolla, CA 92037 - ---------------------------------------- ---------- (Address of principal executive offices) (Zip code) (Registrant's telephone number, including area code) (619) 597-1000 ----------------------- Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X . No _____. ----- Common stock, $.01 par value, 3,150,838 shares outstanding as of May 8, 1995. AMSERV HEALTHCARE INC. I N D E X __________________________
Page PART I - FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS A. CONDENSED CONSOLIDATED BALANCE SHEETS, MARCH 31, 1995 AND JUNE 30, 1994 3 B. CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE THREE AND NINE MONTH PERIODS ENDED MARCH 31, 1995 AND 1994 4 C. CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE NINE MONTH PERIODS ENDED MARCH 31, 1995 AND 1994 5 D. NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS 6 - 7 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 8 PART II - OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS 9 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 9 SIGNATURES 10
2 PART I - FINANCIAL INFORMATION AMSERV HEALTHCARE INC. CONDENSED CONSOLIDATED BALANCE SHEETS -------------------------------------
March 31, June 30, 1995 1994 ----------- ----------- (unaudited) ASSETS CURRENT ASSETS: Cash and cash equivalents....................................... $ 963,049 $ 643,987 Marketable securities, net of unrealized losses of $44,941 and $40,510............................................ 1,844,445 676,615 Customer accounts receivable, net of allowance for doubtful accounts of $181,697 and $237,687..................... 1,142,796 1,964,903 Federal income tax receivable................................... - 326,628 Other current assets............................................ 68,127 335,389 ----------- ----------- Total current assets......................................... 4,018,417 3,947,522 PROPERTY & EQUIPMENT, NET........................................ 393,662 252,234 INTANGIBLE ASSETS, NET........................................... 1,766,810 2,047,540 OTHER ASSETS..................................................... 382,204 311,090 ----------- ----------- $ 6,561,093 $ 6,558,386 =========== =========== LIABILITIES AND SHAREHOLDERS' EQUITY CURRENT LIABILITIES: Accounts payable................................................ $ 15,808 $ 70,735 Accrued payroll and related taxes............................... 370,734 580,035 Net liabilities of discontinued operations...................... 370,157 116,718 Other current liabilities....................................... 70,278 277,928 Current maturities of note payable.............................. 333,334 333,334 ----------- ----------- Total current liabilities................................... 1,160,311 1,378,750 ----------- ----------- LONG-TERM LIABILITIES: Note payable.................................................... 499,999 666,666 Other........................................................... 159,322 165,000 ----------- ----------- Total long-term liabilities................................. 659,321 831,666 SHAREHOLDERS' EQUITY: Preferred stock, $.01 par value; authorized 3,000,000 shares; none outstanding Common stock, $.01 par value, authorized 15,000,000 shares; 3,087,794 shares issued....................................... 30,877 30,877 Treasury stock; 143,268 shares; at cost.......................... (296,053) (296,053) Additional paid-in capital...................................... 6,373,936 6,373,936 Retained earnings (deficit)...................................... (1,367,299) (1,760,790) ----------- ----------- Total shareholders' equity.................................. 4,741,461 4,347,970 ----------- ----------- $ 6,561,093 $ 6,558,386 =========== ===========
(See Notes to Condensed Consolidated Financial Statements) 3 AMSERV HEALTHCARE INC. CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE THREE AND NINE MONTHS ENDED MARCH 31, 1995 AND 1994 ----------------------------------------------------------- (unaudited)
Three Months Ended Nine Months Ended March 31, March 31, ------------------------ ------------------------ 1995 1994 1995 1994 ---------- ---------- ---------- ---------- NET SALES....................................................... $2,899,543 $1,853,074 $8,402,485 $5,270,963 OPERATING EXPENSES: Selling, general and administrative............................ 2,693,274 1,849,216 7,783,797 5,184,262 Depreciation and amortization.................................. 110,939 92,582 330,806 277,067 ---------- ---------- ---------- ---------- Total Expenses............................................. 2,804,213 1,941,798 8,114,603 5,461,329 ---------- ---------- ---------- ---------- OPERATING INCOME (LOSS)......................................... 95,330 (88,724) 287,882 (190,366) Interest Expense................................................ (14,422) - (50,726) - Interest Income................................................. 35,617 26,580 66,599 67,173 ---------- ---------- ---------- ---------- INCOME (LOSS) FROM CONTINUING OPERATIONS BEFORE INCOME TAXES............................................ 116,525 (62,144) 303,755 (123,193) Income Tax Provision (Benefit).................................. 32,000 (17,672) 79,000 (35,034) ---------- ---------- ---------- ---------- INCOME (LOSS) FROM CONTINUING OPERATIONS........................ 84,525 (44,472) 224,755 (88,159) DISCONTINUED OPERATIONS: Loss from discontinued operations (less applicable income tax benefit of $34,328 and $266,266).................... - (56,858) - (496,111) Gain on disposal of discontinued operations (less applicable income tax provision of $29,777)............................... - - 168,736 - ---------- ---------- ---------- ---------- NET INCOME (LOSS)............................................... $ 84,525 $ (101,330) $ 393,491 $ (584,270) ========== ========== ========== ========== INCOME (LOSS) PER SHARE: Income (Loss) from Continuing Operations....................... $.03 $ (.01) $ .07 $ (.03) Loss from Discontinued Operations.............................. $. - $ (.02) $ . - $ (.16) Gain on Disposal of Discontinued Operations.................... $. - $ . - $ .05 $ . - Net Income (Loss).............................................. $.03 $ (.03) $ .12 $ (.19) WEIGHTED AVERAGE COMMON SHARES OUTSTANDING................................................... 3,132,660 2,944,526 3,132,660 2,944,526 ========== ========== ========== ==========
(See Notes to Condensed Consolidated Financial Statements) 4 AMSERV HEALTHCARE INC. CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE NINE MONTHS ENDED MARCH 31, 1995 AND 1994 ------------------------------------------------- (unaudited)
Nine Months Ended March 31, ---------------------------- 1995 1994 ----------- ------------ CASH FLOWS FROM OPERATING ACTIVITIES: Cash received from customers............................. $ 13,213,288 $ 14,224,953 Cash paid to suppliers and employees..................... (12,346,290) (14,841,163) Interest received........................................ 76,338 50,750 Interest paid............................................ (37,115) - Income taxes paid........................................ (145,884) (5,294) Income taxes refunded.................................... 330,826 513,861 ----------- ------------ Net Cash Provided By (Used In) Operating Activities....... 1,091,163 (56,893) CASH FLOWS FROM INVESTING ACTIVITIES: Proceeds from sale of discontinued operations............ 813,941 - Proceeds from sale of marketable securities.............. 405,000 - Cash received on notes receivable........................ 50,411 131,250 Purchase of property and equipment....................... (256,028) (9,044) Purchase of marketable securities........................ (1,577,260) (497,125) Proceeds from sale of property & equipment............... 31,851 2,884 ----------- ------------ Net Cash Used In Investing Activities..................... (532,085) (372,035) CASH FLOWS FROM FINANCING ACTIVITIES: Issuance of Note Payable................................. - 130,587 Repayment of Notes Payable............................... (240,016) - ----------- ------------ Net Cash Provided By (Used In) Financing Activities....... (240,016) 130,587 ----------- ------------ Net Increase (Decrease) in Cash and Cash Equivalents..... 319,062 (298,341) Cash and Cash Equivalents, Beginning of Period............ 643,987 1,208,170 ----------- ------------ Cash and Cash Equivalents, End of Period.................. $ 963,049 $ 909,829 =========== ============
(See Notes to Condensed Consolidated Financial Statements) 5 AMSERV HEALTHCARE INC. NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS ---------------------------------------------------- 1. ADJUSTMENTS In the opinion of management of the Company, the accompanying unaudited condensed consolidated financial statements reflect all adjustments necessary (which are of a normal recurring nature) to present fairly the Company's financial position as of March 31, 1995, and the results of its operations for the three and nine months ended March 31, 1995 and 1994 and its cash flows for the nine months ended March 31, 1995 and 1994. Information included in the condensed consolidated balance sheet as of June 30, 1994 has been derived from the Company's Form 10-K for the year ended June 30, 1994 ("1994 Form 10-K"). The unaudited condensed consolidated financial statements contained herein should be read in conjunction with the consolidated financial statements and notes contained in the Company's 1994 Form 10-K. 2. EARNINGS PER SHARE Earnings per share for the three and nine month periods ended March 31, 1995 and 1994 are based on the weighted average number of common and common stock equivalent shares outstanding. Certain stock options were not included in the computation of earnings per share because their effect would be antidilutive. Earnings per share assuming full dilution are the same as primary earnings per share. 3. SUPPLEMENTAL SCHEDULE TO CONSOLIDATED STATEMENTS OF CASH FLOWS The reconciliation of net income (loss) to net cash provided by (used in) operating activities is summarized below:
Nine Months Ended March 31, ------------------------------- 1995 1994 ----------- --------- Net Income (Loss)............................................... $ 393,491 $(584,270) Adjustments to Reconcile Net Income (Loss) to Net Cash Provided By (Used In) Operating Activities: Depreciation and amortization.................................... 330,806 413,025 Write-off of intangibles......................................... - 137,616 Unrealized loss on marketable securities......................... 4,431 22,125 Other non-cash expenses.......................................... 32,680 5,130 Changes in Assets and Liabilities: Accounts receivable............................................... 822,107 (419,201) Other assets...................................................... 143,174 (15,459) Accounts payable.................................................. (54,927) (25,195) Income taxes..................................................... 105,942 207,267 Accruals on disposal of discontinued operations................... (560,502) - Other liabilities................................................. (126,039) 202,069 ----------- --------- Net Cash Provided By (Used In) Operating Activities............. $1,091,163 $ (56,893) =========== =========
There were no material non-cash financing or investing activities for the nine months ended March 31, 1995 and 1994. 6 AMSERV HEALTHCARE INC. NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS ---------------------------------------------------- 4. INTANGIBLE ASSETS Intangible assets acquired in acquisitions consist of the following:
March 31, June 30, 1995 1994 ---------- ---------- Excess of cost over acquired net assets... $1,588,063 $1,588,063 Assembled work force...................... 497,154 497,154 Accreditation and training programs....... 502,846 502,846 Covenant not to compete................... 525,000 525,000 ---------- ---------- 3,113,063 3,113,063 Less: Accumulated Amortization 1,346,253 1,065,523 ---------- ---------- $1,766,810 $2,047,540 ========== ==========
5. DISCONTINUED OPERATIONS On November 9, 1994, the Company sold substantially all of the fixed and intangible assets of its temporary nursing services business for $814,000 in an all cash transaction, resulting in a gain of $169,000, net of income taxes. The consolidated statement of operations for the three and nine month periods ended March 31, 1995 and 1994 excludes sales and expenses for its temporary nursing services business from captions applicable to continuing operations. Revenues from the discontinued operation were $3,988,696 and $9,373,191 for the nine months ended March 31, 1995 and 1994, respectively. 6. SUBSEQUENT EVENTS On April 6, 1995, the Company signed an amendment to the Asset Purchase Agreement dated June 10, 1994 with North Central Personnel, Inc. The amendment exchanged the Company's promissory note to North Central Personnel, Inc. with a principal balance of $833,333, as of March 31, 1995, and the related accrued interest for 426,794 shares of the Company's voting Class A Redeemable Preferred Stock, $.01 par value. The preferred shares pay no dividends, and may be redeemed at the option of the holder, in specified installments, for cash at a redemption price equal to $2.00 per share on May 29, 1995, November 29, 1995, May 29, 1996, November 29, 1996 and May 29, 1997. All of the remaining shares become redeemable in the event of default or change of control. The amendment also provides for a maximum earnout of $2,000,000 in consideration for a minimum earnout of $1,600,000 and an earnout advance in the amount of $500,000, which was paid in cash on April 6, 1995. The earnout advance and all future earnout payments will be accounted for as additional purchase price of North Central Personnel, Inc. On April 18, 1995, the Company's Chief Executive Officer exercised options for 67,562 shares of common stock for $154,997 in cash, according to the Company's Employee Stock Option Plan. On April 20, 1995, the Company accepted a non- recourse promissory note in the amount of $198,440, bearing interest at a rate of 10% per annum, and $1,100 in cash for the exercise of options for 110,000 shares of common stock by the Chief Executive Officer in accordance with a stock option agreement dated February 27, 1987 and amended on January 15, 1988. The promissory note is secured by all 177,562 shares purchased by the Company's Chief Executive Officer, including those purchased for cash. 7 AMSERV HEALTHCARE INC. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS --------------------------------------------- LIQUIDITY AND CAPITAL RESOURCES Cash, cash equivalents and marketable securities increased $1,486,892 during the first nine months of fiscal year 1995. This increase is the result of the sale of the temporary nursing services business, the collection of related accounts receivable and a federal income tax refund. The Company's balance sheet remains strong with a current ratio of 3.5 to 1. In April 1995, the Company amended its original Asset Purchase Agreement with North Central Personnel, Inc., by exchanging an interest bearing (7%) promissory note for voting Class A Redeemable Preferred Stock, and making an earnout advance in the amount of $500,000 in cash. The Company believes that its present working capital position will be sufficient to meet its anticipated cash requirements for operations, and to move forward with its expansion program. OPERATING RESULTS Net sales from continuing operations for the three and nine month periods ended March 31, 1995 increased $1,046,469, or 56%, and $3,131,522, or 59%, respectively, over the same periods of the prior fiscal year. Higher sales are due to the June 10, 1994, acquisition of North Central Personnel and the opening of the Union City office in New Jersey, which has continued to grow steadily since its start-up in October 1994. Selling, general and administrative expenses for the three and nine months ended March 31, 1995 increased $844,058 and $2,599,535, respectively, compared to the same periods of the prior year. These increases were primarily the result of the direct variable costs associated with an increase in net sales and the acquisition of North Central Personnel. Depreciation and amortization for the three and nine months ended March 31, 1995, increased $18,357, or 20%, and $53,739, or 19%, respectively, over the same period of fiscal 1994. This increase is the result of depreciation on property and amortization of goodwill and intangible assets acquired in the acquisition of North Central Personnel. Interest expense of $14,422 and $50,726, respectively, for the three and nine month periods during fiscal 1995 are due to interest on the note issued in the acquisition of North Central Personnel. There was no interest expense during the three and nine month periods of fiscal 1994. The net income for the nine months ended March 31, 1995 includes an after-tax gain of $168,736 as a result of the sale of the Company's temporary nursing services business. An after-tax loss from discontinued operations of $56,858 and $496,111 for the three and nine months ended March 31, 1994 is included in the net loss for fiscal 1994. 8 PART II - OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS On April 27, 1995, Stockbridge Investment Partners, Inc., filed a complaint against AMSERV HEALTHCARE INC. and its Board of Directors, Melvin L. Katten, Eugene J. Mora, Michael A. Robinton, George A. Rogers and Ben L. Spinelli in the Delaware Court of Chancery. The complaint alleges a breach of fiduciary duty was committed by the directors of AMSERV HEALTHCARE INC. by (a) delaying initiation of the consent solicitation by holding out the possibility of a negotiated transaction with plaintiff; (b) adopting a bylaw that purports to give the directors the power to postpone the setting of a record date for a stockholder consent solicitation; (c) exchanging 426,794 shares of voting preferred stock for a promissory note issued in connection with a June 1994 acquisition; (d) signing a letter of intent to acquire a healthcare services company; and (e) accepting a non-recourse note of $198,440 from Eugene J. Mora, AMSERV's CEO, to exercise his stock option for 110,000 shares of the Company's common stock. The complaint seeks relief by (a) rescinding the transaction which exchanges 426,794 shares of Class A Preferred Stock for a promissory note; (b) rescinding the transaction which exercises 110,000 stock options by Mr. Mora; and (c) receiving an award for plaintiff's costs and disbursements of this action, including reasonable attorneys' and experts' fees in connection with this complaint. The Company is engaged in settlement discussions with respect to this action. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits: 1. Amendment No. 2 to Asset Purchase Agreement, dated April 7, 1995, by and between North Central Personnel, Inc., Diane Gurik and AMSERV HEALTHCARE OF OHIO INC. 2. Stock Purchase Agreement dated April 7, 1995 by and between AMSERV HEALTHCARE INC. and North Central Personnel, Inc. 3. Certificate of Designations, Preferences and Rights of Class A Redeemable Preferred Stock of AMSERV HEALTHCARE INC. dated April 7, 1995. 4. Voting Agreement and Irrevocable Proxy to Vote dated April 7, 1995 by and between North Central Personnel, Inc. and AMSERV HEALTHCARE INC. (b) Reports on Form 8-K: 1. A Form 8-K dated March 6, 1995, was filed with the Securities and Exchange Commission adopting an amendment to the Company's By-laws. The amendment ensures (i) orderly procedures for determining which stockholders will be able to take part in a written consent action; (ii) compliance with Rule 14a-13 of the Securities and Exchange Act of 1934; and (iii) that any written consent action be efficiently and effectively undertaken without disenfranchising any of the stockholders of the Company. The amendment was filed as an exhibit to Form 8-K. 2. A Form 8-K dated March 21, 1995, was filed with the Securities and Exchange Commission reporting a change in the Registrant's independent auditors. The Company's decision to dismiss Deloitte & Touche LLP and retain Ernst & Young LLP was approved by its Board of Directors at a meeting held on March 21, 1995. A letter dated March 27, 1995, from Deloitte & Touche LLP concerning dismissal as Registrant's principal accountant was filed as an exhibit to Form 8-K. A Form 8-K/A was subsequently filed on April 27, 1995 which amended the letter dated March 27, 1995 from Deloitte & Touche LLP. The amended letter dated April 25, 1995 from Deloitte & Touche LLP was filed as an exhibit to Form 8-K/A. 9 SIGNATURES ---------- Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. AMSERV HEALTHCARE INC. - ---------------------- Registrant /s/ EUGENE MORA - ------------------------------------ Eugene J. Mora May 10, 1995 Chairman and President /s/ LORI ANDERSON - ------------------------------------ Lori Anderson May 10, 1995 Treasurer 10 EX-1 2 AMEND. #1 ASSET PURCHASE AGREEMENT AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT ------------------------ This Amendment No. 2 to Asset Purchase Agreement (the "Agreement") is made and entered into this 7th day of April, 1995, by and among North Central Personnel, Inc., an Ohio corporation (the "Seller"), Diane Gurik, its sole stockholder and AMSERV HEALTHCARE OF OHIO INC., a Delaware corporation (the "Purchaser"), a wholly-owned subsidiary of AMSERV HEALTHCARE INC. ("AMSERV"). W I T N E S S E T H: ------------------- WHEREAS, as of June 10, 1994, the Seller and the Purchaser entered into the original Asset Purchase Agreement, which was amended as of November 30, 1994 (collectively, the "Original Agreement"); WHEREAS, the Seller and Purchaser desire to amend the Original Agreement with this Agreement; WHEREAS, in connection herewith, the Seller is purchasing certain shares of Preferred Stock of AMSERV, Purchaser is surrendering the Subordinated Note issued to Seller in connection with the Original Agreement, AMSERV is providing the Seller with a $500,000 advance against the "Earnout" (as hereinafter defined) (the "Earnout Advance"), and AMSERV is immediately vesting all of the stock options held by Diane Gurik; and WHEREAS, in connection herewith, the Seller is agreeing to limit the amount of the Earnout due to it from the Purchaser; and WHEREAS, AMSERV is the guarantor of the Purchaser's obligations under the Original Agreement. NOW THEREFORE, in consideration of the premises and of the mutual and dependent covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: Section 1. Section 2(b)(i) of the Agreement is hereby deleted in its --------- entirety and replaced with the following: (b) Earnout. ------- (i) In addition to the amounts paid for the Purchased Assets in accordance with subsection (a) above, Seller shall receive an earn out payment (the "Earnout") in an amount equal to the Operating Income (as hereinafter defined) of the Business for the three year earn out period ("Earnout Period") immediately following the Closing Date (as hereinafter defined) less $1,500,000; provided, however, in no event shall the Earnout exceed $500,000 and provided further, however, in no event shall the Earnout be less than $100,000. As used herein, Operating Income shall mean (i) net sales from the operation of the Business less cost of sales (which shall include but not be limited to salaries and wages of field employees, the related payroll taxes, vacation and benefits, workers' compensation, professional liability insurance, and recruiting and advertising costs) less (ii) the operating expenses of the Business. The operating expenses of the Business shall include all direct and indirect expenses as reflected in financial statements currently prepared by the Seller in accordance with generally accepted accounting principles ("GAAP") as evidenced by Exhibit E, and shall exclude all management fees, AMSERV state and federal franchise and income taxes, interest paid on the Note, and charges from AMSERV, unless such charges are approved by Diane Gurik. Section 2. Earnout Advance. In consideration for the Seller's agreement --------- --------------- to amend Section 2(b)(i) as set forth above, AMSERV shall pay to the Seller, upon the execution and delivery of this Agreement, the amount of $500,000 in immediately available funds (the "Earnout Advance"). Section 3. Full Force and Effect. All of the other terms of the Original --------- --------------------- Agreement not hereby amended shall remain in full force and effect. 2 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written. PURCHASER: SELLER: AMSERV HEALTHCARE OF OHIO INC. NORTH CENTRAL PERSONNEL, INC. - ------------------------------ ------------------------------------ By: Eugene Mora By: Diane Gurik Its: Chairman Its: President ------------------------------------ Diane Gurik ------------------------------------ John Gurik 3 EX-2 3 STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT ------------------------ This Stock Purchase Agreement (the "Agreement") is made and entered into this 7th day of April, 1995, by and among AMSERV HEALTHCARE INC., a Delaware corporation (the "Company") and NORTH CENTRAL PERSONNEL, INC., an Ohio corporation (the "Purchaser"). W I T N E S S E T H: ------------------- WHEREAS, the Company desires to sell to the Purchaser, and the Purchaser desires to buy from the Company 426,794 shares of the Company's Class A Redeemable Preferred Stock, $.01 par value per share (the "Preferred Stock"); WHEREAS, the Purchaser and the Company are entering into this Agreement to provide for such purchase and sale and to establish various rights and obligations in connection therewith; WHEREAS, in connection herewith, the Company is also amending that certain Asset Purchase Agreement dated as of June 10, 1994 (the "Asset Agreement") among the Company, the Purchaser and AMSERV HEALTHCARE OF OHIO INC. (the "AMSERV OHIO"), making an advance of $500,000 against an earnout in the Asset Agreement (the "Earnout Advance") and immediately vesting all stock options held by a shareholder of the Purchaser; and WHEREAS, the Company is the guarantor of the AMSERV OHIO's obligations under the Asset Agreement. NOW THEREFORE, in consideration of the premises and of the mutual and dependent covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: Section 1. PURCHASE AND SALE OF SHARES. --------- --------------------------- (a) Sale and Purchase: ----------------- On the Closing Date (as hereinafter defined), in reliance upon the representations, warranties and agreements of the parties, the Company shall sell and deliver to the Purchaser, and the Purchaser shall purchase from Seller, free and clear of all liens and encumbrances, an aggregate of 426,794 shares of Preferred Stock (the "Shares"). Section 2. PURCHASE PRICE AND PAYMENT. --------- -------------------------- (a) Payment. In consideration for the sale and delivery of the Shares by ------- the Company to the Purchaser, and as the full purchase price hereunder, the Purchaser agrees to surrender to the Company the $1,000,000 promissory note from AMSERV HEALTHCARE OF OHIO INC. to the Purchaser, dated June 10, 1994, with the remaining principal balance of $833,333 and all accrued but unpaid interest due as of the date hereof (the "Note") . No payments shall be due and owing to the Purchaser with respect to interest accrued and unpaid on the Note after the date hereof. Section 3. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE --------- --------------------------------------------------------- COMPANY. ------- As an inducement to the Purchaser to execute, deliver and perform its obligations arising under or pursuant to this Agreement, the Company represents and warrants to the Purchaser as follows: (a) Organization; Standing; Power. The Company is a corporation duly ----------------------------- organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to conduct business under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own, lease and operate its properties, to carry on its business as now being conducted and to execute, deliver and perform this Agreement. The Company is qualified to do business in each state which the nature of its business conducted make qualification necessary and where the failure to so qualify would have a material adverse effect on the business of the Company as a whole. (b) Authorization of the Company. The execution, delivery and performance ---------------------------- of this Agreement and all other actions relating hereto by the Company have been duly and validly authorized by the Board of Directors of the Company. This Agreement to be signed by the Company constitutes validly executed and delivered and binding obligations of the Company enforceable in accordance with its terms. (c) Consents; Conflicts. Neither the execution and delivery of this ------------------- Agreement nor the consummation by the Company of the transactions contemplated hereby, nor compliance with any of the provisions hereof will: (i) conflict with or result in a breach of the Certificate of Incorporation or Bylaws of the Company; (ii) violate any statute, law, rule or regulation or any order, writ, injunction or decree of any court or governmental authority; or (iii) violate or conflict with or constitute a default under (or give rise to any right of termination, cancellation or acceleration under) any material agreement or writing of any nature to which the Company is a party or by which it or its assets or properties may be bound. Except as otherwise described herein, no consent, approval, authorization of, or designation, declaration or filing with any governmental authority or other persons or entities on the part of the Company is required in 2 connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby. Prior to the Closing, the Certificate of Amendment to the Certificate of Incorporation in the Form of EXHIBIT A will have been filed with the Secretary of State of the State of Delaware. (d) The Shares. The Shares being issued on the date hereof have been duly ---------- authorized by all necessary corporate action on the part of the Company (no consent or approval of stockholders being required by law), and such Shares, upon Closing, will be validly issued, fully paid and nonassessable, and the issuance of such Shares is not and will not be subject to preemptive rights of any other stockholder of the Company. (e) Litigation. There are no actions, suits, claims, investigations or ---------- legal or administrative or arbitration proceedings pending or, to the knowledge of the Company, threatened against the Company or the transactions contemplated hereby. (f) Capitalization. The authorized capital of stock of the Corporation -------------- consists of (i) 15,000,000 shares of Common Stock, $.01 par value and 2,944,526 are issued and outstanding as of March 31, 1995, (ii) 426,794 shares of Preferred Stock, all of which will be issued in connection with this Agreement and (iii) 2,573,206 shares of undesignated preferred stock, none of which are issued and outstanding. No class of capital stock is entitled to preemptive rights. (g) Brokers or Finders. No agent, broker, investment banker, or other firm ------------------ or person, including any of the foregoing that is an Affiliate of the Company, is or will be entitled to any broker's or finder's fee for any other compensation or similar fee from the Company in connection with any of the transactions contemplated by this Agreement that the Purchaser will be responsible for. (h) Registration Under Exchange Act. The Company has not registered the ------------------------------- Preferred Stock as a class pursuant to Section 12 of the Securities Exchange Act of 1934, as amended. The Shares will not be registered as such class and such registration is not required. (i) Disclosure. No representation or warranty by the Company contained in ---------- this Agreement, and no statement contained in any certificate, schedule, exhibit, list or other writing furnished to the Purchaser in connection with the transactions contemplated by this Agreement, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading. All copies of all writings furnished to the Purchaser hereunder or in connection with the transactions contemplated hereby are true and complete. 3 Section 4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE --------- --------------------------------------------------------- PURCHASER. --------- As an inducement to the Company to execute, deliver and perform its obligations arising under or pursuant to this Agreement, the Purchaser represents and warrants to and agrees with the Company as follows: (a) Organization; Standing; Power. The Purchaser is a corporation duly ----------------------------- organized, validly existing and in good standing under the laws of the State of Ohio and is qualified to conduct business under the laws of the State of Ohio. The Purchaser has all requisite corporate power and authority to own, lease and operate its properties, to carry on its business as now being conducted and to execute, deliver and perform this Agreement. (b) Authorization of the Purchaser. The execution, delivery and ------------------------------ performance of this Agreement and all other actions relating hereto by the Purchaser have been duly and validly authorized by the Board of Directors of the Purchaser. This Agreement to be signed by the Purchaser constitutes validly executed and delivered and binding obligations of the Purchaser enforceable in accordance with its terms. (c) Consents; Conflicts. Neither the execution nor the delivery of this ------------------- Agreement nor the consummation of the transactions contemplated hereby, nor compliance with any of the provisions hereof will (i) conflict with or result in a breach of the Certificate of Incorporation or Bylaws of the Purchaser, or (ii) violate any statute, law, rule or regulation or any order, writ, injunction or decree of any court or governmental authority or (iii) violate or conflict with or constitute a default under (or give rise to any right of termination, cancellation or acceleration under) any material agreement or writing of any nature to which the Purchaser is bound. Except as otherwise described herein, no consent, approval or authorization of, or designation, declaration or filing with any governmental authority or other persons or entities on the part of the Purchaser is required in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby. The Purchaser owns the Note free and clear of all security interests, liens, pledges, claims, charges, escrows, encumbrances, options, rights of first refusal, mortgages, indentures, security agreements or other agreements, arrangements, contracts or commitments. (d) Litigation. There are no actions, suits, claims, investigations or ---------- legal or administrative or arbitration proceedings pending or, to the knowledge of the Purchaser, threatened against the Purchaser or the transactions contemplated hereby. (e) Acquisition for Investment. The Purchaser is acquiring the Shares for -------------------------- its own account for the purpose of investment and not with a view to or for sale in connection with any distribution thereof, and the Purchaser has no present intention or plan to effect any distribution of the Shares. 4 (f) Ownership of Securities. At the date hereof, except for the 20,000 ----------------------- stock options and any open market purchases Diane Gurik may have made, the Purchaser does not beneficially own, directly or indirectly (or have any option or other right to acquire), any securities of the Company other than the Shares being purchased by it hereunder. (g) Brokers or Finders. No agent, broker, investment banker or other firm ------------------ or Person, including any of the foregoing that is an Affiliate of the Purchaser, is or will be entitled to any broker's or finder's fee or any other commission or similar fee from the Purchaser in connection with any of the transactions contemplated by this Agreement that the Company will be responsible for. (h) Accredited Investor. The Purchaser is an "accredited investor" within ------------------- the meaning of Rule 501 promulgated under the Securities Act of 1933, as amended. The Purchaser has access to the information regarding the Company, has access to management of the Company, has asked management of the Company the questions the Purchaser has deemed advisable and has received responses in satisfaction to those inquiries, all in order for the Purchaser to make the decision to acquire the Shares. (i) Disclosure. No representation or warranty by the Purchaser contained ---------- in this Agreement, and no statement contained in any certificate, schedule, exhibit, list or other writing furnished to the Company in connection with the transactions contemplated by this Agreement, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading. All copies of all writings furnished to the Company hereunder or in connection with the transactions contemplated hereby are true and complete. Section 5. COVENANTS. ---------- --------- (a) Status of Stock. The Company will not in any report to stockholders, --------------- or to any governmental body having jurisdiction over the Company or otherwise treat the Preferred Stock other than as equity capital unless required to do so by a governmental body having jurisdiction over the accounts of the Company or by a change in application or interpretation of or a change in generally accepted accounting principles required as a result of action by an authoritative accounting standards-setting body. The Company will not issue any additional Preferred Stock, except for the Shares. (b) Transfer of Shares. The Purchaser understands and agrees that no ------------------ shares of Preferred Stock have been or will be registered under the Securities Act of 1933, as amended (the "Securities Act") or the securities laws of any state and that they may be sold or otherwise disposed of only in one or more transactions registered under the Securities Act and, where applicable, such laws or as to which an exemption from the registration requirements of the Securities Act and, where applicable, such laws is available. The Purchaser acknowledges that the Purchaser has no right to require the Company to register the Shares or any shares of 5 Preferred Stock. The Purchaser understands and agrees that each certificate representing the Shares shall bear the following legends: "ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE TAKES SUCH SECURITIES SUBJECT TO THE TERMS AND CONDITIONS OF THE CERTIFICATE OF DESIGNATIONS OF THE COMPANY AND THE VOTING AGREEMENT BETWEEN NORTH CENTRAL PERSONNEL, INC. AND THE COMPANY, DATED AS OF APRIL 7, 1995, A COPY OF EACH IS ON FILE AT THE OFFICES OF THE COMPANY." "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS." Section 6. CLOSING. --------- ------- (a) Closing Date. The consummation of the transaction contemplated by this ------------ Agreement (the "Closing") shall take place on April 7, 1995, at 10:00 a.m. at 70 Park Avenue West, Mansfield, Ohio 44902 or at such place and time as hereafter may be agreed upon by the Purchaser and the Company (the "Closing Date"). (b) The Company's Deliveries. At Closing, the Company shall deliver, or ------------------------ cause to be delivered to the Purchaser, in exchange for the Purchaser's deliveries delineated in Section 6(c) below, the following, all of which shall be in form and substance satisfactory to the Purchaser and the Purchaser's counsel: (i) a stock certificate or stock certificates in definitive form registered in the name of the Purchaser, representing the Shares being purchased hereunder; (ii) appropriate evidence of all necessary corporate action by the Company in connection with the transactions contemplated hereby, including without limitation certified copies of resolutions duly adopted by the Company's Board of Directors approving the transactions contemplated by, and authorizing the execution, delivery and performance by the Company of, this Agreement; 6 (iii) a certificate from the Secretary of State of Delaware stating the Company is currently in good standing under the laws of the State of Delaware; (iv) a copy of the Certificate of Designations in the form of EXHIBIT A, certified by the Secretary of State of Delaware; (v) a legal opinion from the Company's legal counsel in a form acceptable to the Purchaser's legal counsel; (vi) the Earnout Advance in immediately available funds; (vii) evidence that the Stock Option Committee of the Company has immediately vested Diane Gurik's stock options in the Company as of the Closing Date; (viii) an executed counterpart of the Amendment No. 2 to the Asset Agreement in the form of EXHIBIT B; and (ix) an executed counterpart of the Voting Agreement in the form of EXHIBIT C. (c) The Purchaser's Deliveries. At Closing, the Purchaser shall deliver, -------------------------- or cause to be delivered, in exchange for the deliveries delineated in Section 6(b) above, the following, all of which shall be in form and substance satisfactory to the Company or the Company's counsel: (i) the Note, surrendered for cancellation; (ii) appropriate evidence of all necessary corporate action by the Purchaser in connection with the transactions contemplated hereby, including without limitation certified copies of resolutions duly adopted by the Purchaser's Board of Directors approving the transactions contemplated by, and authorizing the execution, delivery and performance by the Purchaser of this Agreement; (iii) an executed counterpart of the Amendment No. 2 to the Asset Agreement in the form of EXHIBIT B; (iv) an executed counterpart of the Voting Agreement in the form of EXHIBIT C; and (v) an executed copy of the Proxy (as defined in the Voting Agreement). 7 Section 7. ADDITIONAL CONDITIONS PRECEDENT OR SUBSEQUENT TO THE --------- ---------------------------------------------------- OBLIGATIONS OF THE PURCHASER. ---------------------------- The obligations of the Purchaser to perform this Agreement are subject to the satisfaction of the following conditions on or prior to the Closing Date, unless waived in writing by the Purchaser, and the Company, shall use its best efforts to cause such conditions to be fulfilled: (a) Representations and Warranties. The representations and warranties of ------------------------------ the Company in this Agreement or in any schedule, certificate or document delivered in connection herewith shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date. (b) Performance of Obligations of the Company. The Company shall have ----------------------------------------- performed in all material respects all agreements and obligations required to be performed by it under this Agreement prior to the Closing Date. (c) No Litigation. No action, suit or other proceeding shall be pending ------------- before any court, tribunal or governmental authority seeking or threatening to restrain or prohibit the consummation of the transactions contemplated by this Agreement, or seeking to obtain substantial damages in respect thereof, or involving a claim that consummation thereof would result in the violation of any law, decree or regulation of any governmental authority having appropriate jurisdiction. Section 8. ADDITIONAL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE --------- --------------------------------------------------------- COMPANY. ------- The obligations of the Company to perform this Agreement are subject to the satisfaction, on or prior to the Closing Date, of the following conditions, unless waived in writing by the Company, and the Purchaser shall use its best efforts to cause such conditions to be fulfilled. (a) Representations and Warranties. The representations and warranties of ------------------------------ the Purchaser in this Agreement or in any schedule, certificate or document delivered pursuant hereto shall be true and correct in all material respects and as of the date hereof and on and as of the Closing Date. (b) Performance of Obligations of the Purchaser. The Purchaser shall have ------------------------------------------- performed in all material respects all their respective obligations required to be performed under this Agreement on or prior to the Closing Date, including, without limitation, surrender of the Note. (c) No Litigation. No action, suit or other proceeding shall be pending ------------- before any court, tribunal or governmental authority seeking or threatening to restrain or prohibit the consummation of the transactions contemplated by this Agreement, or seeking to obtain 8 substantial damages in respect thereof, or involving a claim that consummation thereof would result in the violation of any law, decree or regulation of any governmental authority having appropriate jurisdiction. Section 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. --------- ------------------------------------------ All of representations and warranties made by any party to this Agreement or pursuant hereto shall survive for a period of one year after the Closing. The representations and warranties hereunder shall not be affected or diminished by any investigation at any time by or on behalf of the party for whose benefit such representations and warranties were made. All statements contained herein or in any certificate, schedule list or other document delivered pursuant hereto or in connection with the transactions contemplated hereby shall be deemed to be representations and warranties. Section 10. INDEMNIFICATION. ---------- --------------- (a) Indemnification of the Purchaser. Subject to the limitations -------------------------------- hereinafter set forth, the Company and its successors and assigns shall indemnify, hold harmless and save the Purchaser and its affiliates, officers and directors (in their respective capacities as such) from, against, for and in respect of: (i) any and all damages, losses, settlement payments, obligations, liabilities, claims, actions or causes of action, encumbrances and reasonable costs and expenses suffered, sustained, incurred or required to be paid by any indemnified party because of (A) the claims of any broker or finder engaged by the Company; (B) the untruth, inaccuracy or breach of any representation, warranty, agreement or covenant of the Company contained in or made in connection with this Agreement; or (C) claims with respect to the issuance of the Shares; and (ii) all reasonable costs and expenses (including, without limitation, attorney's fees, interest and penalties) incurred by any indemnified party in connection with any action, suit, proceeding, demand, assessment or judgment incident to any of the matters indemnified against in this Section 10(a). (b) Indemnification of the Company. Subject to the limitations hereinafter ------------------------------ set forth, the Purchaser and its successors and assigns shall indemnify, hold harmless and save the Company, and its affiliates, officers and directors (in their respective capacities as such) from and against, for and in respect of: (i) any and all damages, losses, settlement payments, obligations, liabilities, claims, actions or causes of action, encumbrances and reasonable costs and expenses suffered, sustained, incurred or required to be paid by any indemnified party because of (A) the claims of any broker or finder engaged by the Purchaser; or (B) the untruth, inaccuracy or breach of 9 any representation, warranty, agreement or covenant of the Purchaser contained in or made pursuant to this Agreement; and (ii) all reasonable costs and expenses (including, without limitation, attorney's fees, interest and penalties) incurred by any indemnified party in connection with any action, suit, proceeding, demand, assessment or judgment incident to any of the matters indemnified against in this Section 10(b). (c) Indemnification Procedures. -------------------------- (i) The indemnified party shall give prompt written notice to the indemnifying party of any claim which might give rise to a claim by the indemnified party against the indemnifying party based on the indemnity agreements contained in Sections 10(a) and 10(b) hereof, stating the nature and basis of said claims and the amounts thereof, to the extent known. (ii) In the event any action, suit or proceeding is brought against the indemnified party, with respect to which the indemnifying party may have liability under the indemnity agreements contained in Sections 10(a) or 10(b) hereof, the action, suit or proceeding shall, upon the written acknowledgment by the indemnifying party that it is obligated to indemnify under such indemnity agreement, be defended (including all proceedings on appeal or for review which counsel for the indemnifying party shall deem appropriate) by the indemnifying party. The indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the indemnified party's own expense unless (A) the employment of such counsel and the payment of such fees and expenses both shall have been specifically authorized by the indemnifying party in connection with the defense of such action, suit or proceeding, or (B) such indemnified party shall have reasonably concluded and specifically notified the indemnifying party that there may be specific defenses available to it which are different from or additional to those available to the indemnifying party or that such action, suit or proceeding involves or could have an effect upon matters beyond the scope of the indemnity agreements contained in Sections 10(a) and 10(b) hereof, in any of which events the indemnifying party, to the extent made necessary by such defenses, shall not have the right to direct the defense of such action, suit or proceeding on behalf of the indemnified party. In such case only that portion of such fees and expenses reasonably related to matters covered by the indemnity agreements contained in Sections 10(a) or 10(b) hereof shall be borne by the indemnifying party. The indemnified party shall be kept fully informed of such action, suit or proceeding at all stages thereof whether or not it is so represented. The indemnifying party shall make available to the indemnified party and its attorneys and accountants, all books and records of the indemnifying party relating to such proceeding or litigation and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit or proceeding. 10 (iii) The indemnified party shall not make any settlement of any claims without the written consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed. (d) Cumulative Remedies. Except as herein expressly provided, the remedies ------------------- provided in this Section 10 hereof shall be cumulative and shall not preclude assertion by any party of any other rights or the seeking of any other rights or remedies against any other party hereto. (e) Tax Benefits. Tax benefits, if any, received by the indemnified party ------------ shall be taken into account when calculating the amount of any liability of the indemnifying party. Section 13. MISCELLANEOUS. ---------- ------------- (a) Expenses; Transfer Taxes, Etc. No costs, fees or expenses (or any ------------------------------ liability relating thereto) (including, for example, commission and brokerage fees, attorney's fees or similar costs) incurred by the Company in connection with this Agreement shall be borne by or charged to the Purchaser. No costs, fees or expenses (or any liability relating thereto) (including, for example, commission and brokerage fees, attorneys' fees or similar costs) incurred by the Purchaser in connection with this Agreement shall be borne by or charged to the Company. (b) Parties in Interest. This Agreement shall be binding upon, inure to ------------------- the benefit of, and be enforceable by the Company and its successors and assigns and the Purchaser and its successors and assigns. (c) Entire Agreement; Amendments. This Agreement contains the entire ---------------------------- understanding of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, expressed or implied, oral or written, except as herein contained. This Agreement may be amended only by a written instrument duly executed by the parties. (d) Headings. The section and subsection headings contained in this -------- Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. (e) Notices. All notices, claims, certificates, requests, demands and ------- other communications (a "Communication") hereunder shall be in writing and shall be deemed to have been duly given when (i) mailed by registered or certified mail, postage prepaid, (ii) sent by reliable overnight courier, or (iii) telecopied and followed immediately by copy mailed, addressed as follows: 11 If to the Company, to: AMSERV HEALTHCARE INC. 3252 Holiday Court, Suite 204 La Jolla, California 92037 Attn: Eugene J. Mora, Chairman Telecopy No.: (619) 597-1001 with a copy to: Katten Muchin & Zavis 525 West Monroe Street Suite 1600 Chicago, Illinois 60661-3693 Attn: Jeffrey R. Patt, Esq. Telecopy No.: (312) 902-1061 If to the Purchaser, to: North Central Personnel, Inc. 713 South Main Street Mansfield, Ohio 44907 Attn: Diane Gurik, President with a copy to: 70 Park Avenue West Mansfield, Ohio 44902 Attn: Bud Vetter, Esq. Telecopy No.: (419) 525-3810 or to such other addresses as the person to whom notice is to be given may have furnished to the other in writing in accordance herewith. A Communication given by any other means shall be deemed duly given when actually received by the addressees. (f) Public Announcements. The Purchaser acknowledges and agrees that the -------------------- Company will disseminate information and announcements relating to this Agreement. The Purchaser agrees not to make any public announcement regarding this Agreement without the prior written consent of the Company. (g) Further Assurances. After the Closing Date, without further ------------------ consideration, the Company and the Purchaser shall execute and deliver such further instruments and documents 12 as either party shall reasonably request to consummate the transaction contemplated by the Agreement. (h) Waivers. Any party to this Agreement may, by written notice to the ------- other party hereto, waive any provision of this Agreement. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent, same or different breach. (i) Choice of Law and Performance. The Agreement shall be construed under ----------------------------- and in accordance with the laws of the State of Delaware. If a party hereunder shall default on any term under this Agreement, the other party may enforce this Agreement by specific performance; or such party shall have any and all other remedies available to it at law or in equity. (j) Definitions. Where appropriate in the context used, the descriptive ----------- word "material" shall mean an aggregate of or amounting to an aggregate of $5,000. As used herein the term "Affiliate" shall mean as to the Company or the Purchaser, any person or entity who or which directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with the Company or the Purchaser, as the case may be. 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written. THE COMPANY: THE PURCHASER: AMSERV HEALTHCARE INC. NORTH CENTRAL PERSONNEL, INC. - --------------------------------- ---------------------------------- By: Eugene Mora By: Diane Gurik Its: Chairman Its: President 14 EX-3 4 CERTIFICATE CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF CLASS A REDEEMABLE PREFERRED STOCK OF AMSERV HEALTHCARE INC. AMSERV HEALTHCARE INC. (the "Corporation"), a corporation organized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: that, pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation (as amended) of said corporation, and pursuant to the provisions of Section 151 of the General Corporation Law of Delaware, said Board of Directors adopted a resolution providing for designations, preferences and relative, participating, optional or other rights and the related qualifications, limitations or restrictions thereof, of the Class A Redeemable Preferred Stock, $.01 par value per share (the "Class A Preferred") which resolution is as follows: RESOLVED, that the rights, designations and preferences of the Class A Preferred Stock of the Corporation is as follows: PART A. TERMS APPLICABLE TO CLASS A PREFERRED. ------------------------------------- Section 1. Liquidation. --------- ----------- 1.1 Preference. Upon any voluntary or involuntary liquidation, ---------- dissolution or winding up of the Corporation, the holders of Class A Preferred will be entitled to be paid, before any distribution or payment is made upon any Common Stock, an amount in cash equal to the aggregate Liquidation Value (as defined below) of all shares of Class A Preferred outstanding. The Corporation will mail written notice of such liquidation, dissolution or winding up, not less than sixty (60) days prior to the payment date stated therein, to each record holder of Class A Preferred. At the option of a holder of Class A Preferred with respect to its Class A Preferred Shares, a "Change in Control" (as defined below) or an "Organic Change" (as defined below) will be deemed to be a liquidation, dissolution or winding up of the Corporation for purposes of this Section 1. 1.2 Insufficient Funds. If upon any liquidation, dissolution or winding ------------------ up of the Corporation, whether voluntary or involuntary, the assets available for distribution to the stockholders of the Corporation (the "Distributable Funds") shall be insufficient to permit the payment to the holders of Class A Preferred of the full preferential amount set forth above, then the Distributable Funds shall be distributed to the holders of Class A Preferred, ratably in proportion to the number of Class A Preferred Shares held by each such holder on the date of liquidation, dissolution or winding up of the Corporation. 1.3 Remaining Funds. If any of the Distributable Funds shall remain after --------------- the payment to the holders of Class A Preferred of the full preferential amount set forth in Section 1.1 above, then such remainder shall be distributed to the holders of Common Stock and to the holders of the Class A Preferred, ratably in proportion to the number of shares of stock that each such holder holds. Section 2. Ranking. The Class A Preferred shall, with respect to rights --------- ------- on liquidation, dissolution or winding up, rank senior to all other equity securities of the Corporation, and any other series or class of the Corporation's preferred or common stock, now or hereafter authorized. Section 3. Voting Rights. The Class A Preferred shall have those voting --------- ------------- rights set forth for the Class A Preferred in Part B below. Section 4. Redemption. --------- ---------- 4.1 Holders' Right to Require Redemption. ------------------------------------ (a) At the written request delivered to the Corporation by any holder of Class A Preferred then outstanding (a "Requesting Class A Holder") made upon any Event of Default (as defined below) or Redemption Date (as defined below), the Corporation shall redeem (unless otherwise prevented by law) at a redemption price per share equal to 100% of the Liquidation Preference for such Class A Preferred Shares in cash (i) with respect to an Event of Default, all, but not less than all of the Class A Preferred Shares held by such Requesting Class A Holder or (ii) with respect to each Redemption Date, a number of Class A Preferred Shares equal to (A) 85,359 multiplied by the quotient of (i) the number of Class A Preferred Shares then held by such holder divided by (ii) the total number of Class A Preferred Shares outstanding at the time of the demand for redemption, plus (B) the number of Class A Preferred Shares, if any, of ---- which such holder (or a predecessor-in-interest) was entitled to demand redemption on any prior Redemption Date but for which such holder (or a predecessor-in-interest) did not make such demand. Notwithstanding the foregoing, if the holders do not demand for redemption the maximum number of Class A Preferred Shares the holder can have redeemed, such holders may demand redemption of such amount not redeemed, but subject to redemption, at any time thereafter. The total sum payable per share of Class A Preferred to be redeemed pursuant to this Section 4.1(a) or Section 4.4 (the "Redeemed Class A Shares") on the Redemption Date, an Event of Default or optional redemption, as the case may be, is hereinafter referred to as the "Redemption Price", and the payment to be made on the Redemption Date, an Event of Default or optional redemption, as the case may be, for the Redeemed Class A Shares is hereinafter referred to as the "Redemption Payment". (b) If at any time after any holders of Class A Preferred Shares shall have demanded redemption pursuant to this Section for an Event of Default, if all Events of Default 2 shall be remedied or waived by such holders, then, and in every such case, such holders may in their sole discretion, by written notice to the Corporation, rescind and annul such demand for immediate redemption and its consequences. 4.2 Redemption Date. The holders shall be entitled to demand redemption --------------- on each of May 29, 1995, November 29, 1995, May 29, 1996, November 29, 1996 and May 29, 1997 (each such date a "Redemption Date"). 4.3 Events of Default. An Event of Default shall be ----------------- deemed to have occurred: (a) If the Corporation shall fail to make any redemption payment it is obligated to make and such failure continues for a period of five days thereafter; or (b) Any representation or warranty made by the Corporation in the Stock Purchase Agreement herewith, or that is contained in any certificate furnished at any time under or in connection therewith, shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or (c) The Corporation shall default in the material observance or performance of any covenant or agreement contained in this Certificate or the Stock Purchase Agreement, and such default shall continue unremedied for a period of thirty (30) days after the Corporation has received notice of the occurrence thereof; or (d) (i) The Corporation shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its properties or assets, or the Corporation shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Corporation any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against the Corporation any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets, that results 3 in the entry of an order for any such relief that shall not have been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) the Corporation shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) the Corporation shall generally not pay its debts as they become due; or (e) The lapse of thirty (30) days following the day on which Eugene Mora is no longer employed on a full-time basis by the Corporation. (f) If there shall occur a Change of Control of the Corporation or an Organic Change. 4.4 Optional Redemption. The Corporation may at any time redeem all, but ------------------- not less than all, of the Class A Preferred Shares owned by each holder or holders at a price per share equal to 100% of the Liquidation Value thereof in cash or in the form of a mutually agreeable promissory note. The Corporation shall give written notice of any such redemption to all holders of Class A Preferred. Each such holder shall then have seven (7) days after receipt of the Corporation's notice to acknowledge such redemption and to surrender their certificates evidencing such Class A Preferred. 4.5 Redemption Payment. For each Class A Preferred Share that is to be ------------------ redeemed, the Corporation shall be obligated to pay to the holder thereof (upon surrender by such holder at the Corporation's principal office of the certificate representing such Class A Preferred Shares) an amount in immediately available funds equal to 100% of the Liquidation Value of such Class A Preferred Shares within five (5) business days of the receipt of the demand for redemption. If the funds of the Corporation legally available for redemption of Class A Preferred on any Redemption Date are insufficient to redeem the total number of Class A Preferred Shares to be redeemed on such date, those funds which are legally available shall be paid to the holders of the Class A Preferred ratably in proportion to the number of Class A Preferred Shares requested to be redeemed by each Requesting Class A Holder. At any time thereafter when additional funds of the Corporation are legally available for the redemption of Class A Preferred Shares, such funds shall immediately be used to redeem the balance of the Class A Preferred Shares which the Corporation had become obligated to redeem but had not redeemed, paid to the Requesting Class A Holders ratably in proportion to the number of Class A Preferred Shares requested to be redeemed by each such holder on the date such funds become legally available. In case fewer than the total number of Class A Preferred Shares represented by any certificate are redeemed, a new certificate representing the number of unredeemed Class A Preferred Shares shall be issued to the holder thereof without cost to such holder within five (5) business days after surrender of the certificate representing the redeemed Class A Preferred Shares. 4 4.6 No Rights After Redemption. Subject to Section 4.1(b), upon delivery -------------------------- of notice of redemption, all rights of any Class A Preferred Holder with respect to the Redeemed Class A Shares, except the right to receive the Redemption Price for each Redeemed Class A Share as herein provided, shall cease and terminate except for those shares for which the Company has insufficient funds to redeem pursuant to Section 4.5; and such Redeemed Class A Shares shall no longer be deemed to be outstanding, whether or not the certificates representing such shares have been received by the Corporation; provided, however, that, if the Corporation defaults in the payment of the Redemption Payment, the rights of the Requesting Class A Holder shall continue until the Corporation cures such default. At any time on or after the Redemption Date, the Requesting Class A Holder shall be entitled to receive the Redemption Price for each of the Redeemed Class A Shares upon actual delivery to the Corporation of the certificate(s) representing the Redeemed Class A Shares. 4.7 Redeemed or Otherwise Acquired Shares. Any Class A Preferred Shares ------------------------------------- that are redeemed or otherwise acquired by the Corporation shall be cancelled and no longer exist. 4.8 Other Redemptions. The Corporation shall not redeem or otherwise ----------------- acquire any Class A Preferred Shares, except as expressly authorized in this Section or pursuant to an offer made pro rata to all holders of the Class A Preferred on the basis of the number of Class A Preferred Shares held by each such holder. Section 5. Miscellaneous. --------- ------------- 5.1 Registration of Transfer. The Corporation will keep at its principal ------------------------ office a register for the registration of Class A Preferred Shares. Upon the surrender of any certificate representing Class A Preferred Shares at such place, the Corporation will, at the request of the record holder of such certificate, execute and deliver (at the Corporation's expense) a new certificate or certificates in exchange therefor representing in the aggregate the number of Class A Preferred Shares represented by the surrendered certificate. Each such new certificate will be registered in such name and will represent such number of Class A Preferred Shares as is requested by the holder of the surrendered certificate and will be substantially identical in form to the surrendered certificate. 5.2 Replacement. Upon receipt of evidence reasonably satisfactory to the ----------- Corporation (an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing Class A Preferred Shares, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Corporation, or, in the case of any such mutilation upon surrender of such certificate, the Corporation will (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of Class A Preferred Shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate. 5 5.3 Amendment and Waiver. No amendment, modification or waiver will be -------------------- binding or effective with respect to any provision of Article IV, Part A without the prior written consent of the holders of at least fifty one (51%) of the Class A Preferred Shares outstanding at the time such action is taken; provided that no action will discriminate against any holder of Class A Preferred other than as a result of a difference in the number of Class A Preferred Shares held by such holders. 5.4 Notices. Except as otherwise expressly provided, all notices referred ------- to herein will be in writing and will be delivered by registered or certified mail, return receipt requested, postage prepaid and will be deemed to have been given when so mailed (a) to the Corporation, at its principal executive offices and (b) to any stockholder, at such holder's address as it appears in the stock records of the Corporation (unless otherwise indicated in writing by such holder). PART B. VOTING RIGHTS. ------------- Section 1. In General. Except as otherwise provided by the by the --------- ---------- Delaware General Corporation Law or by this Certificate of Incorporation or any amendments thereto, each Class A Preferred Share shall entitle the holder thereof to vote, in proxy or in person, on all matters voted on by the holders of Common Stock voting together as a single class with the holders of Common Stock and with the holders of all other shares entitled to vote thereon. Each holder of Class A Preferred shall have one vote per share of Class A Preferred held by such holder on the date as of which the holders of Class A Preferred of record entitled to vote were determined and each holder of Common Stock shall have one vote per share of Common Stock held by such holder on the date as of which the holders of Common Stock of record entitled to vote were determined. PART C. DEFINITIONS. ----------- "Affiliate" shall have the same meaning as the term is defined in the --------- Securities Exchange Act of 1934, as amended and the rules and regulations thereunder or any successor statute or rules and regulations (the "Exchange Act"). "Change of Control" means the happening of any of the following events: ----------------- (a) (i) any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of greater than 50% of the then outstanding shares of Common Stock or (ii) the stockholders of the Corporation approve a reorganization, merger, consolidation, complete liquidation or dissolution of the Corporation, the sale or disposition of all or substantially all of the assets of the Corporation or similar corporate transaction, unless such acquisition (as described in clause (i) above) or such transaction (as described in clause (ii) above) is approved prior thereto by the Corporation's Board in accordance with the Corporation's Bylaws. 6 (b) A change in the composition of the Board such that the individuals who, as of the date of this Certificate, constitute the Board (such Board shall be hereinafter referred to as the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a member of the Board subsequent to the date of this Certificate whose election, or nomination for election by the Corporation's stockholders, was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this provision) shall be considered as though such individual were a member of the Incumbent Board; but, provided, further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board shall not be so considered as a member of the Incumbent Board. "Liquidation Value" of any share of Class A Preferred as of any particular ----------------- date will be equal to $2.00 per share. "Organic Change" means any capital reorganization, reclassification, -------------- consolidation, merger, lease, or sale of all or substantially all of the Corporation's assets to another Person which is effected in such a way that holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for shares of Common Stock. "Person" means an individual, a partnership, a corporation, an association, ------ a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof. "Stock Purchase Agreement" means the Stock Purchase Agreement, dated as of ------------------------ April 7, 1995, by and among the Corporation and North Central Personnel, Inc., as such agreement may be amended from time to time in accordance with its terms. 7 IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations, Preferences and Rights of Class A Preferred Stock to be signed by Eugene J. Mora, its Chairman on this 7th day of April, 1995. AMSERV HEALTHCARE INC. ---------------------------------------- By: Eugene J. Mora Its: Chairman 8 EX-4 5 VOTING AGREEMENT VOTING AGREEMENT ---------------- This Voting Agreement (this "Agreement") is made as of April 7, 1995 by and among NORTH CENTRAL PERSONNEL, INC., an Ohio corporation ("NCP") and AMSERV HEALTHCARE INC., a Delaware corporation (the "Company"). WHEREAS, NCP will acquire 426,794 shares (the "Shares") of the Class A Redeemable Preferred Stock, par value $.01 per share, of the Company (the "Preferred Stock") pursuant to a Stock Purchase Agreement, dated as of April 7, 1995 ("Stock Agreement"); WHEREAS, NCP and the Company desire to provide greater certainty with respect to their future relationships including certain restrictions on the shares of Preferred Stock; WHEREAS, the Stock Agreement contemplates that this Agreement be executed and delivered by the parties hereto contemporaneously with the execution and delivery of the Stock Agreement and as a condition to effectuating the Stock Agreement; and NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows: ARTICLE I REPRESENTATIONS AND WARRANTIES SECTION 1.01 Representations and Warranties of NCP. NCP hereby represents and warrants to the Company as follows: (a) Authorization of NCP. The execution, delivery and performance of -------------------- this Agreement and all other actions relating hereto by NCP have been duly and validly authorized by the Board of Directors of NCP. This Agreement to be signed by NCP constitutes validly executed and delivered and binding obligations of NCP enforceable in accordance with its terms. (b) Consents; Conflicts. Neither the execution nor the delivery of ------------------- this Agreement nor the consummation of the transactions contemplated hereby, nor compliance with any of the provisions hereof will (i) conflict with or result in a breach of the Certificate of Incorporation or Bylaws of NCP, or (ii) to NCP's knowledge, violate any statute, law, rule or regulation or any order, writ, injunction or decree of any court or governmental authority or (iii) violate or conflict with or constitute a default under (or give rise to any right of termination, cancellation or acceleration under) any material agreement or writing of any nature to which NCP is bound. Except as otherwise described herein, no consent, approval or authorization of, or designation, declaration or filing with any governmental authority or other persons or entities on the part of NCP is required in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby. SECTION 1.02 Representations and Warranties of the Company. The Company hereby represents and warrants to NCP as follows: (a) Authorization of the Company. The execution, delivery and ---------------------------- performance of this Agreement and all other actions relating hereto by the Company have been duly and validly authorized by the Board of Directors of the Company. This Agreement to be signed by the Company constitutes validly executed and delivered and binding obligations of the Company enforceable in accordance with its terms. (b) Consents; Conflicts. Neither the execution and delivery of this ------------------- Agreement nor the consummation by the Company of the transactions contemplated hereby, nor compliance with any of the provisions hereof will: (i) conflict with or result in a breach of the Certificate of Incorporation or Bylaws of the Company; (ii) violate any statute, law, rule or regulation or any order, writ, injunction or decree of any court or governmental authority; or (iii) violate or conflict with or constitute a default under (or give rise to any right of termination, cancellation or acceleration under) any material agreement or writing of any nature to which the Company is a party or by which it or its assets or properties may be bound. Except as otherwise described herein, no consent, approval, authorization of, or designation, declaration or filing with any governmental authority or other persons or entities on the part of the Company is required in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby. ARTICLE II LIMITATIONS AND RESTRICTIONS SECTION 2.01 Voting; Impairment. NCP agrees that during the term of this Agreement, at every meeting of stockholders of the Company and at every adjournment thereof, and on every action or approval by written consent of the stockholders of the Company, NCP will vote all of the Shares in accordance with the recommendations of the Board on all matters with respect to possible change in contests transactions, change in Board composition contests and Board elections, including but not limited to, consent, proxy and stockholder solicitations. Concurrent with the execution of this Agreement, NCP agrees to deliver to the Company a proxy (which is coupled with an interest) in the form of EXHIBIT A (the "Proxy"), which shall be irrevocable to the extent provided in Section 212 of the Delaware General Corporation Law, covering all of the Shares. Notwithstanding this Section, nothing herein shall require NCP to take any action which would directly and adversely impair the priority or redemption rights of the Preferred Stock. In the event of any such action, the Board will promptly notify NCP. 2 SECTION 2.02 Transfer of Shares. Any transferee of any shares of the Preferred Stock takes such shares of Preferred Stock subject to this Agreement and the Proxy. In the event NCP transfers any shares of Preferred Stock, such transferee shall be subject to and bound by this Agreement and the Proxy as if such transferee actually executed a copy of this Agreement. SECTION 2.03 Effect of Non-Compliance. No action or inaction, sale, purchase or other acquisition or assignment, transfer, grant of an option with respect to or other disposition of any interest in (or agreement, arrangement or understanding with respect to the foregoing) any of the Preferred Stock in violation of the provisions of this Agreement shall be valid; and the Company shall not transfer such Preferred Stock on the books of the Company, nor shall such Preferred Stock be entitled to vote during the period of any violation of this Agreement. Nothing in the preceding sentence shall waive or deprive the Company of any other rights or remedies it may have in this Agreement or at law for any sale of Preferred Stock in violation of this Agreement. The above disqualifications shall be in addition to and not in lieu of any other remedies, legal or equitable, to enforce these provisions. ARTICLE III MISCELLANEOUS SECTION 3.01 Board Action. For purposes of this Agreement all references in this Agreement to any recommendation, action, consent, invitation, approval, determination, request or waiver by the Board shall mean recommendation, action, consent, invitation, approval, determination, request or waiver which is authorized by a majority of the directors or any committee so delegated by the Board. Unless otherwise determined by the Board, it shall also mean action, consent, invitation, approval, determination, request or waiver which is authorized by a majority of the directors who serve on the Executive Committee of the Board. SECTION 3.02 Interpretation. For all purposes of this Agreement, the term Shares of Preferred Stock shall include any securities of an issuer entitled to vote for the election of directors of an issuer which securities the holders of the Preferred Stock shall have received or as a matter of right be entitled to receive as a result of (i) any capital reorganization or reclassification of the capital stock of the Company, (ii) any consolidation, merger or share exchange of the Company with or into another corporation or (iii) any sale of all or substantially all the assets of the Company. SECTION 3.03 Enforcement. (a) The Company and NCP each acknowledge and agree that irreparable damage would occur if any of the provisions of this Agreement were not complied with in accordance with their specific terms. Accordingly, each of the parties will be entitled to any injunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any state having 3 jurisdiction, this being in addition to any other remedy to which they may be entitled at law or in equity. (b) No failure or delay on the part of any party in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. SECTION 3.04 Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, expressed or implied, oral or written, except as herein contained. This Agreement may be amended only by a written instrument duly executed by the parties. SECTION 3.05 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect. It is declared to be the intention of the parties that they would have executed the remaining provisions without including any that may be declared unenforceable. SECTION 3.06 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any provision of this Agreement. SECTION 3.07 Counterparts. This Agreement may be executed in two or more counterparts, and each such executed counterpart will be an original instrument. SECTION 3.08 Notices. All notices, claims, certificates, requests, demands and other communications ("Communication") hereunder shall be in writing and shall be deemed to have been duly given when (i) mailed by registered or certified mail, postage prepaid, (ii) sent by reliable overnight courier, or (iii) telecopied and followed immediately by copy mailed, addressed as follows: If to the Company, to: AMSERV HEALTHCARE INC. 3252 Holiday Court, Suite 204 La Jolla, California 92037 Attn: Eugene J. Mora, Chairman Telecopy No.: (619) 597-1001 4 with a copy to: Katten Muchin & Zavis 525 West Monroe Street Suite 1600 Chicago, Illinois 60601-3693 Attn: Jeffrey R. Patt, Esq. Telecopy No.: (312) 902-1061 If to NCP to: North Central Personnel, Inc. 713 South Main Street Mansfield, Ohio 44907 Attn: Diane Gurik, President with a copy to: 70 Park Avenue West Mansfield, Ohio 44902 Telecopy No.: (419) 525-3810 Attn: Bud Vetter, Esq. or to such other addresses as the person to whom notice is to be given may have furnished to the other in writing in accordance herewith. A Communication given by any other means shall be deemed duly given when actually received by the addressees. SECTION 3.09 Assignment No Third-Party Beneficiaries. Except as expressly provided in this Agreement, this Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by any party without the prior written consent of the Company. Any other assignment or delegation of rights, duties or obligations hereunder made without the prior written consent of the Company shall be void and of no effect. If any party assigns any rights or duties hereunder pursuant to the provisions of this Agreement, such party shall not be relieved of its obligations hereunder and such party unconditionally guarantees the performance by the assignee of such party's obligation hereunder. This Agreement is intended for the benefit of and is enforceable by the Company. This Agreement is not intended, and shall not, confer any rights or benefits on any persons other than the parties hereto. Notwithstanding the foregoing, a transferee who acquires any shares of the Preferred Stock will succeed and be subject to the rights and obligations of the transferor under this Agreement. SECTION 3.10 Term. This Agreement shall continue in full force and effect until the earlier to occur of: (a) there are no shares of Preferred Stock outstanding or (b) the tenth anniversary of the date of this Agreement. 5 SECTION 3.11 Governing Law. This Agreement shall be construed under and in accordance with the laws of the State of Delaware. If a party hereunder shall default on any term under this Agreement, the other party may enforce this Agreement by specific performance; or such party shall have any and all other remedies available to it at law or in equity. 6 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first referred to above. AMSERV HEALTHCARE INC. NORTH CENTRAL PERSONNEL, INC. - ----------------------------- ----------------------------------- By: Eugene Mora By: Diane Gurik Its: Chairman Its: President 7 EXHIBIT A IRREVOCABLE PROXY TO VOTE AMSERV HEALTHCARE INC. The undersigned stockholder (the "Stockholder") of AMSERV HEALTHCARE INC., a Delaware corporation (the "Company"), hereby irrevocably (to the full extent permitted by Section 212 of the Delaware General Corporation Law) appoints Eugene Mora, as agent for the Board of Directors of the Company, as the sole and exclusive attorney and proxy of the Stockholder, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the full extent that the undersigned is entitled to do so) with respect to the 426,794 shares of Class A Redeemable Preferred Stock, $.01 par value (the "Preferred Stock") of the Company and any and all other shares or securities of the Company issued or issuable in respect thereof on or after the date hereof (collectively, the "Shares") in accordance with the terms of this Proxy. The Shares beneficially owned by the Stockholder as of the date of this Proxy are listed on the final page of this Proxy. Upon the Stockholder's execution of this Proxy, any and all prior proxies given by the Stockholder with respect to any Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Shares until after the Expiration Date (as defined below). This proxy is irrevocable (to the extent provided in Section 212 of the Delaware Corporation law), coupled with an interest and is granted pursuant to that certain Voting Agreement of even date herewith by and between the Company and the Stockholder, and is granted in consideration of Company entering into that certain Amendment No. 2 to the Asset Purchase Agreement of even date herewith, among the Company, the Stockholder and AMSERV HEALTHCARE OF OHIO, INC. and the Stock Purchase Agreement of even date herewith between the Company and the Stockholder. As used herein the term "Expiration Date" shall mean the earlier to occur of (i) there are no shares of Preferred Stock outstanding or (ii) the tenth anniversary of this Irrevocable Proxy. The attorney and proxy named above is hereby authorized and empowered by the Stockholder, at any time prior to the Expiration Date, to act as the Stockholder's attorney and proxy to vote the Shares, and to exercise all voting rights of the Stockholder with respect to the Shares (including, without limitation, the power to execute and deliver written consents pursuant to Section 228 of the Delaware General Corporation Law), at every annual, special or adjourned meeting of the stockholders of the Company and in every written consent in lieu of such meeting in accordance with the recommendations of the Board of Directors of the Company on all matters with respect to possible change in control contests, change in Board composition contests and Board elections, including but not limited to, consent, proxy and stockholder solicitations. Any obligation of the Stockholder hereunder shall be binding upon the successors and assigns of the Stockholder. A-1 This proxy is irrevocable (to the extent provided in Section 212 of the Delaware General Corporation Law). Dated: April 7, 1995 NORTH CENTRAL PERSONNEL, INC. ______________________________ By: Diane Gurik Its: President Shares beneficially owned: 426,794 shares of Class A Redeemable Preferred Stock A-2 EX-27 6 ART. 5 FINANCIAL DATA SCHEDULE
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONDENSED CONSOLIDATED BALANCE SHEETS AS OF MARCH 31, 1995 AND JUNE 30, 1994; AND CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE THREE AND NINE MONTH PERIODS ENDED MARCH 31, 1995 AND 1994 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 9-MOS JUN-30-1995 JUL-01-1994 MAR-31-1995 963,049 1,844,445 1,324,493 181,697 0 4,018,417 572,968 179,306 6,561,093 1,160,311 659,321 30,877 0 0 4,710,584 6,561,093 0 8,402,485 0 0 0 0 50,726 303,755 79,000 224,755 168,736 0 0 393,491 .12 .12
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