Exhibit 99(d)(8)
EXECUTION COPY
HILLTOPPER HOLDING CORP.
SUBSCRIPTION AND CONTRIBUTION AGREEMENT
February 24, 2000
TO THE INVESTORS WHOSE
NAMES AND ADDRESSES ARE SET
FORTH ON SCHEDULES I AND II HERETO
Gentlemen:
This letter is being written for the purpose of setting forth
the understandings between Hilltopper Holding Corp., a Delaware corporation (the
"Company"), and each of the Investors whose names and addresses are set forth on
Schedule I or Schedule II hereto (each, an "Investor" and collectively, the
"Investors") in connection with the purchase by the Investors and sale by the
Company of shares of its Series A Convertible Preferred Stock, par value $0.01
per share (the "Series A Preferred Stock"), and its Series B Convertible
Preferred Stock, par value $0.01 per share (the "Series B Preferred Stock" and,
together with the Series A Preferred Stock, the "Preferred Stock") as set forth
below.
If you are in agreement with the terms and conditions set
forth herein, please sign the last page of one copy of this letter and return it
to us, whereupon this letter shall represent a legally binding agreement between
us and shall supersede any prior agreement between you and the Company or any
third party as regards the sale and purchase of stock of the Company. Please
keep the other copy of this letter for your files.
1. AUTHORIZATION OF CAPITAL STOCK. The Company will prior to the
Closing Date (as herein defined) authorize the creation of (i) 20,000,000 shares
of Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"),
(ii) 5,000,000 shares of Class B Common Stock, par value $0.01 per share (the
"Class B Common Stock" and, together with the Class A Common Stock, the "Common
Stock"), (iii) 15,000,000 shares of Series A Preferred Stock and (iv) 5,000,000
shares of Series B Preferred Stock. The terms, limitations and relative rights
and preferences of the Preferred Stock are set forth in the Amended and Restated
Certificate of Incorporation (the "Amended and Restated
Certificate"), substantially in the form in which it will be in effect on the
Closing Date, attached hereto as EXHIBIT A.
2. PURCHASE AND SALE OF SHARES.
(a) Subject to the terms and conditions hereof, on the Closing
Date, the Company shall issue to each Investor whose name and address is set
forth on Schedule I hereto (the "Cash Investors") and each Cash Investor shall
purchase from the Company, the number of shares (as herein defined) set forth
opposite its name on Schedule I hereto, for the amount per share in cash set
forth on Schedule I hereto.
(b) Subject to the terms and conditions hereof, on the Closing
Date the Company shall issue to each Investor whose name and address is set
forth on Schedule II hereto (the "Exchange Investors") and each Exchange
Investor shall purchase from the Company, the number of Shares set forth
opposite its name on Schedule II hereto, in exchange for the number of shares of
Common Stock, par value $.01 per share ("Target Common Stock"), of Centennial
HealthCare Corporation, a Georgia corporation ("Target"), set forth on Schedule
II hereto (the "Exchange Shares"). The value per share of such shares of Target
Common Stock transferred by each Exchange Investor to the Company is set forth
opposite its name on Schedule II hereto.
(c) The issuances and sales referred to in Sections 2(a) and
2(b) hereof shall be effected by the Company executing and delivering to each
Investor duly executed certificates evidencing the Shares to be subscribed by
such Investor, duly registered in such Investor's name against delivery by such
Investor to the Company of the consideration set forth opposite such Investor's
name on Schedule I or II. Any cash payment shall be made by wire transfer.
(d) The closing of the sale (the "Closing") shall take place
one business day after the date on which Hilltopper Acquisition Corp. ("Merger
Sub"), a wholly owned subsidiary of the Company, shall have accepted for payment
the shares of Target Common Stock tendered in the Offer (as defined in the
Agreement and Plan of Merger to be entered into after the date hereof by and
among the Company, Merger Sub and Target (the "Merger Agreement")), and has
deposited with the depositary funds sufficient to purchase such shares of Target
Common Stock. The date of the closing is herein referred to as the "Closing
Date."
(e) On the Closing Date, the Company shall deliver to each
Investor such officers' certificates, good standing certificates and instruments
as shall be reasonably requested relating to the transactions contemplated
hereby.
(f) In order to facilitate the contribution of the Exchange
Shares by the Exchange Investors, each Exchange Investor shall deliver within
ten business days of the date hereof one or
-2-
more certificates representing all of the Exchange Shares to be contributed by
such Exchange Investor to the Company, together with stock powers or other
instruments duly endorsed or otherwise sufficient for transfer (the "Exchange
Instruments"). The Company shall hold the Exchange Instruments in escrow pending
the Closing Date. On the Closing Date, the Company is authorized to present the
Exchange Instruments to the transfer agent for Target and instruct the transfer
agent to register the Exchange Shares in the name of the Company or its
designee.
(g) Each Investor agrees for US federal income tax purposes to
treat its purchase of Preferred Stock as described herein as a transaction
described in Section 351(a) of the Internal Revenue Code of 1986, as amended.
3. RESTRICTIONS ON STOCK. None of the Shares (including any shares
received as a result of dividends, splits or any other forms of recapitalization
in respect of such Shares) shall be Transferred (as hereinafter defined), either
voluntarily or involuntarily, directly or indirectly, except (i) pursuant to an
effective registration under the Securities Act (as hereinafter defined), or in
a transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Securities Act and the
rules and regulations promulgated thereunder and (ii) in accordance with the
terms of the Stockholders Agreement, dated as of the Closing Date, by and among
the Company and the Investors (as the same may be amended from time to time, the
"Stockholders Agreement"), such agreement to be substantially in the form
attached hereto as EXHIBIT B.
4. WARRANTIES AND REPRESENTATIONS OF THE COMPANY
The Company represents and warrants that:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Attached
hereto as Exhibits C and D, respectively, are true and complete copies of the
Certificate of Incorporation and the Bylaws of the Company as in effect on the
date hereof.
(b) The Company has been recently formed to enter into the
Merger Agreement and to consummate the transactions contemplated thereby and has
not conducted any business other than in connection therewith and certain
start-up activities. As of the Closing Date, the Company will have no assets or
liabilities other than those incurred in connection with the Company's
incorporation and the Company's start-up activities, and those acquired or
assumed pursuant to the Merger Agreement and those acquired or incurred in
connection with the transactions contemplated thereby.
(c) The execution, delivery and performance by the Company of
this Agreement and the Merger Agreement and the
-3-
consummation of the transactions contemplated hereby and thereby are within the
corporate powers of the Company. The Board of Directors of the Company (the
"Board") has authorized the execution, delivery, and performance of this
Agreement and the Merger Agreement, and each of the transactions contemplated
hereby and thereby. No other corporate action is necessary to authorize such
execution, delivery and performance, and upon such execution and delivery, each
of this Agreement and the Merger Agreement shall constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. The Board has authorized the issuance and delivery of the Shares in
accordance with this Agreement.
(d) The Shares to be issued and sold by the Company pursuant
to this Agreement, when issued in accordance with the provisions hereof, will be
validly issued by the Company, fully paid and nonassessable shares of the
Company, upon delivery thereof, the Investors will acquire good title to the
Shares, free and clear of any lien or claim of any kind, other than as
contemplated by this Agreement and the Stockholders Agreement or any liens
incurred by the Investors, and no stockholder of the Company has any preemptive
rights to subscribe for any such Shares. The shares of Common Stock issuable
upon conversion of the Shares will be, when issued in accordance with the terms
of the Amended and Restated Certificate, validly issued by the Company, fully
paid and nonassessable shares of the Company, upon delivery thereof, the
Investors will acquire good title to the shares of Common Stock, free and clear
of any lien or claim of any kind, other than as contemplated by this Agreement
and the Stockholders Agreement or any liens incurred by the Investors, and no
stockholder of the Company will have any preemptive rights to subscribe for any
such shares.
(e) Except for the filing of the Amended and Restated
Certificate with the Secretary of State of the State of Delaware and for filings
by the Investors, if any, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, the creation, authorization, issuance, offer and sale of the Shares do
not require any consent, approval or authorization of, or filing, registration
or qualification with, any governmental authority on the part of the Company or
the vote, consent or approval in any manner of the holders of any Security (as
hereinafter defined) of the Company as a condition to the execution and delivery
of this Agreement or the creation, authorization, issuance, offer and sale of
the Shares. The execution and delivery by the Company of this Agreement and the
Merger Agreement and the performance by the Company of its obligations hereunder
and thereunder will not violate (i) the terms and conditions of the Certificate
of Incorporation or the Bylaws of the Company, or any agreement or instrument to
which the Company is a party or by which it is bound or (ii) subject to the
accuracy of the Investors' representations and warranties contained in Section 5
hereof, any federal or state law.
-4-
(f) Immediately prior to the Closing, the outstanding capital
stock of the Company will consist of one share of Common Stock. Immediately
after the Closing, the outstanding capital stock of the Company will consist of
one share of Common Stock and the Shares. Except as set forth in this Section
4(f) or the Amended and Restated Certificate and except for options to be made
available to the management of the Company there are, and immediately after the
Closing there will be, no outstanding (i) shares of capital stock or voting
securities of the Company, (ii) securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company,
(iii) options or other rights to acquire from the Company, or other obligations
of the Company to issue any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of the
Company or (iv) obligations of the Company to repurchase or otherwise acquire or
retire any shares of capital stock or any convertible securities, rights or
options of the type described in clause (i), (ii), or (iii).
(g) Other than this Agreement, the Merger Agreement, the
Stockholders Agreement and the Registration Rights Agreement, no agreement or
other arrangement regarding any class of capital stock of the Company exists
between the Company, or any of its affiliates and any Person. The Company is not
a party to, has not agreed to be a party to, and does not plan to become a party
to any agreement or arrangement with any affiliate, stockholder or other person
or entity who will become a stockholder of the Company in connection with the
transactions contemplated by the Merger Agreement and this Agreement, which has
not been disclosed to each Investor.
(h) There is no investment banker, broker or finder which has
been retained by, will be retained by or is authorized to act on behalf of the
Company who will be entitled to any fee or commission from the Target or the
Company upon consummation of the transactions contemplated by this Agreement.
(i) Neither Company, Merger Sub nor any executive officer or
director of Company or Merger Sub has acquired any shares of Target Common Stock
(or any security exchangeable for or convertible into such shares) since January
30, 1998 at a price in excess of the Per Share Amount (as defined in the Merger
Agreement.
5. INVESTOR REPRESENTATIONS
Each Investor severally (and not jointly) represents and
warrants that:
(a) OFFERING EXEMPTION. The Investor understands that the
Shares and the shares of Common Stock issuable upon conversion of the Shares
have not been registered under the Securities Act, nor qualified under any state
securities laws,
-5-
and that they are being offered and sold pursuant to an exemption from such
registration and qualification based in part upon such Investor's
representations contained herein.
(b) KNOWLEDGE OF OFFER. The Investor is familiar with the
business and operations of the Company and has been given the opportunity to
obtain from the Company all information that such Investor has requested
regarding its business plans and prospects.
(c) KNOWLEDGE AND EXPERIENCE; ABILITY TO BEAR ECONOMIC RISKS.
The Investor has such knowledge and experience in financial and business matters
that the Investor is capable of evaluating the merits and risks of the
investment contemplated by this Agreement; and the Investor is able to bear the
economic risk of this investment in the Company (including a complete loss of
this investment).
(d) LIMITATIONS ON DISPOSITION. The Investor recognizes that
no public market exists for the Shares, and none will exist in the future (other
than as set forth in the Registration Rights Agreement). The Investor
understands that the Investor must bear the economic risk of this investment
indefinitely unless the Shares are registered pursuant to the Securities Act or
an exemption from such registration is available, and unless the disposition of
such Shares is qualified under applicable state securities laws or an exemption
from such qualification is available, and that the Company has no obligation or
present intention of so registering the Shares (other than as set forth in the
Registration Rights Agreement). The Investor further understands that there is
no assurance that any exemption from the Securities Act will be available, or,
if available, that such exemption will allow the Investor to Transfer any or all
the Shares, in the amounts, or at the times the Investor might propose. The
Investor understands at the present time Rule 144 promulgated under the
Securities Act by the SEC ("Rule 144") is not applicable to sales of the Shares
because they are not registered under Section 12 of the Exchange Act (as herein
defined) and there is not publicly available the information concerning the
Company specified in Rule 144. The Investor further acknowledges that the
Company is not presently under any obligation to register under Section 12 of
the Exchange Act or to make publicly available the information specified in Rule
144 and that it may never be required to do so. The Investor further
acknowledges the restrictions on disposition and other terms set forth in the
Stockholders Agreement.
(e) INVESTMENT PURPOSE. The Investor is acquiring the Shares
solely for its own account for investment and not with a view toward the resale,
Transfer, or distribution thereof, nor with any present intention of
distributing the Shares. No other Person (as hereinafter defined) has any right
with respect to or interest in the Shares to be purchased by the Investor, nor
has
-6-
the Investor agreed to give any Person any such interest or right in the future.
(f) CAPACITY. The Investor has full power and legal right to
execute and deliver this Agreement and to perform its obligations hereunder.
(g) PREVIOUS ACQUISITIONS OF TARGET SHARES. Neither Warburg
nor any Investor who is an executive officer of Target has acquired any shares
of Target Common Stock (or any security exchangeable for or convertible into
such shares) since January 30, 1998 at a price in excess of the Per Share Amount
(as defined in the Merger Agreement).
(h) EXCHANGE SHARES. Each Exchange Investor represents that it
is the sole beneficial owner of its Exchange Shares, free and clear of any
pledge, lien, security interest, mortgage, charge, claim, equity, option, proxy,
voting restriction, voting trust or agreement, understanding, arrangement, right
of first refusal, limitation on disposition, adverse claim of ownership or use
or encumbrance of any kind, other than restrictions imposed by the securities
laws or pursuant to this Agreement, the Voting Agreement (as defined in the
Merger Agreement) and the Merger Agreement.
The Investor understands and acknowledges that, following the effective
time of the merger contemplated by the Merger Agreement, the Target shall pay,
or, to the extent previously paid, reimburse the Company, Merger Sub or Warburg,
▇▇▇▇▇▇ Equity Partners, L.P. ("Warburg"), as applicable, for, all fees, costs
and expenses incurred by the Company, Merger Sub and Warburg in connection with
the Merger Agreement and the transactions contemplated by the Merger Agreement.
6. COVENANTS
(a) FINANCIAL AND BUSINESS INFORMATION
From and after the date hereof, the Company shall deliver to
each of the Investors so long as such Investor owns beneficially (within the
meaning of Rule 13d-3 under the Exchange Act) any shares of Common Stock:
(i) MONTHLY AND QUARTERLY STATEMENTS -as soon as
practicable, and in any event within 30 days after
the close of each month of each fiscal year of the
Company in the case of monthly statements and 45 days
after the close of each of the first three fiscal
quarters of each fiscal year of the Company in the
case of quarterly statements, a consolidated balance
sheet, statement of income and statement of cash
flows of the Company and any subsidiaries as at the
close of such month or
-7-
quarter and covering operations for such month or
quarter, as the case may be, and the portion of the
Company's fiscal year ending on the last day of such
month or quarter, all in reasonable detail and
prepared in accordance with GAAP, subject to audit
and year-end adjustments, setting forth in each case
in comparative form the figures for the comparable
period of the previous fiscal year.
(ii) ANNUAL STATEMENTS - as soon as practicable after the
end of each fiscal year of the Company, and in any
event within 90 days thereafter, duplicate copies of:
(a) consolidated and consolidating balance
sheets of the Company and any subsidiaries at the end
of such year; and
(b) consolidated and consolidating
statements of income, stockholders' equity and cash
flows of the Company and any subsidiaries for such
year, setting forth in each case in comparative form
the figures for the previous fiscal year, all in
reasonable detail and accompanied by an opinion
thereon of independent certified public accountants
of recognized national standing selected by the
Company, which opinion shall state that such
financial statements fairly present the financial
position of the Company and any subsidiaries on a
consolidated basis and have been prepared in
accordance with GAAP (except for changes in
application in which such accountants concur) and
that the examination of such accountants in
connection with such financial statements has been
made in accordance with generally accepted auditing
standards, and accordingly included such tests of the
accounting records and such other auditing procedures
as were considered necessary in the circumstances.
(iii) BUSINESS PLAN; PROJECTIONS - no later than 30 days
prior to the commencement of each fiscal year of the
Company, an annual business plan of the Company and
projections of operating results, prepared on a
monthly basis, and a three year business plan of the
Company and projections of operating results. Within
45 days of the close of each semi-annual fiscal
period of the Company, the Company shall provide the
Investors with an update of such monthly projections.
Such business plans, projections and updates shall
contain such
-8-
substance and detail and shall be in such form
as will be reasonably acceptable to the Investors.
(iv) AUDIT REPORTS - promptly upon receipt thereof, one
copy of each other financial report and internal
control letter submitted to the Company by
independent accountants in connection with any
annual, interim or special audit made by them of the
books of the Company.
(v) OTHER REPORTS - promptly upon their becoming
available, one copy of each financial statement,
report, notice or proxy statement sent by the Company
to stockholders generally, of each financial
statement, report, notice or proxy statement sent by
the Company or any of its subsidiaries to the SEC, if
applicable, of each regular or periodic report and
any registration statement, prospectus or written
communication (other than transmittal letters) in
respect thereof filed by the Company or any
subsidiary with, or received by such Person in
connection therewith from, any domestic or foreign
securities exchange, the SEC or any foreign
regulatory authority performing functions similar to
the SEC, of any press release issued by the Company
or any subsidiary, and of any material of any nature
whatsoever prepared by the SEC or any state blue sky
or securities law commission which relates to or
affects in any way the Company or any subsidiary.
(vi) PROGRESS REPORT - promptly following each regularly
scheduled meeting of the Board, a narrative report
shall be delivered to each of the Investors
describing the Company's activities since the date of
the last such report, including a description of
business development, operating results and marketing
efforts.
(vii) REQUESTED INFORMATION - with reasonable promptness,
the Company shall furnish each of the Investors with
such other data and information as from time to time
may be reasonably requested.
(b) INSPECTION
-9-
As long as an Investor owns beneficially (within the meaning of
Rule 13d-3 under the Exchange Act) at least five percent (5%) of the outstanding
Common Stock, the Company shall permit such Investor, its nominee, assignee, and
its representative to visit and inspect any of the properties of the Company and
its subsidiaries, to examine all its and its subsidiaries books of account,
records, reports and other papers not contractually required of the Company to
be confidential or secret, to make copies and extracts therefrom, and to discuss
its and its subsidiaries affairs, finances and accounts with its and its
subsidiaries officers, directors, key employees and independent public
accountants or any of them (and by this provision the Company authorizes said
accountants to discuss with such Investor, its nominees, assignees and
representatives the finances and affairs of the Company and any subsidiaries),
all at such reasonable times and as often as may be reasonably requested.
(c) CONFIDENTIALITY
As to so much of the information and other material furnished under
or in connection with this Agreement (whether furnished before, on or after the
date hereof, including without limitation information furnished pursuant to
Sections 6(a) and 6 (b) hereof) as constitutes or contains confidential
business, financial or other information of the Company or any subsidiary, each
of the Investors covenants for itself and its directors, officers and partners
that it will use due care to prevent its officers, directors, partners,
employees, counsel, accountants and other representatives from disclosing such
information to Persons other than their respective authorized employees,
counsel, accountants, shareholders, partners, limited partners and other
authorized representatives; PROVIDED, HOWEVER, that each Investor may disclose
or deliver any information or other material disclosed to or received by it
should such Investor be advised by its counsel that such disclosure or delivery
is required by law, regulation or judicial or administrative order. In the event
of any termination of this Agreement prior to the Closing Date, each Investor
shall return to the Company all confidential material previously furnished to
such Investor or its officers, directors, partners, employees, counsel,
accountants and other representatives in connection with this transaction. For
purposes of this Section 6(c), "due care" means at least the same level of care
that such Investor would use to protect the confidentiality of its own sensitive
or proprietary information, and this obligation shall survive termination of
this Agreement.
(d) CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE
-10-
The Company will continue, and will cause Target to continue, to
engage in business of the same general type as now conducted by it, and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business. The Company shall
require all of its and its subsidiaries' employees or consultants to enter into
appropriate confidentiality agreements to protect confidential information
relating to the Company and its business, including trade secrets.
(e) COMPLIANCE WITH LAWS
The Company will comply, and will cause each of its subsidiaries to
comply, in all material respects with all applicable laws, rules, regulations
and orders except where the failure to comply would not have a material adverse
effect on the business, properties, operations, prospects or financial condition
of the Company and its subsidiaries.
(f) INSURANCE
The Company will maintain, and will cause each of its subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies of similar size and credit standing engaged in similar business and
owning similar properties, provided that such insurance is and remains available
to the Company and its subsidiaries, as the case may be, at commercially
reasonable rates.
(g) KEEPING OF BOOKS
The Company will keep proper books of record and account, in which
full and correct entries shall be made of all financial transactions and the
assets and business of the Company and its subsidiaries in accordance with GAAP.
(h) LOST, ETC. CERTIFICATES EVIDENCING SHARES (OR SHARES
OF COMMON STOCK); EXCHANGE. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any
certificate evidencing any Shares or shares of Common Stock owned by any
Investor, and (in the case of loss, theft or destruction) of an unsecured
indemnity satisfactory to it, and upon reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
such certificate, if mutilated, the Company will make and deliver in lieu of
such certificate a new certificate of like tenor and for the number of shares
evidenced by such certificate which remain outstanding. An Investor's agreement
of
-11-
indemnity shall constitute an indemnity satisfactory to the Company for purposes
of this Section 6. Upon surrender of any certificate representing any Shares or
shares of Common Stock for exchange at the office of the Company, the Company at
its expense will cause to be issued in exchange therefor new certificates in
such denomination or denominations as may be requested for the same aggregate
number of Shares or shares of Common Stock represented by the certificate so
surrendered and registered as such holder may request. The Company will also pay
the cost of all deliveries of certificates for such shares to any Investor
(including the cost of insurance against loss or theft in an amount satisfactory
to the holders) upon any exchange provided for in this Section 6.
(i) TERMINATION. The provisions of this Section 6 (other
than Section 6(h), which shall survive) shall remain in effect until the closing
of a Qualified Public Offering (as defined in the Amended and Restated
Certificate).
7. SECURITIES ACT RESTRICTIONS. In addition to the legend required by
Section 1(a) of the Stockholders Agreement, the certificates evidencing the
Shares will bear the following legend reflecting the restrictions on the
transfer of such securities contained in this Agreement:
"The securities evidenced hereby have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may not
be transferred except pursuant to an effective registration under the
Act or in a transaction which, in the opinion of counsel reasonably
satisfactory to the Company, qualifies as an exempt transaction under
the Act and the rules and regulations promulgated thereunder."
8. OTHER AGREEMENTS. On the Closing Date, the Company and each of the
Investors shall execute and mutually deliver a counterpart of the Stockholders
Agreement and the Registration Rights Agreement.
9. INTERPRETATION OF THIS AGREEMENT
(a) TERMS DEFINED. As used in this Agreement, the following
terms have the respective meaning set forth below:
EXCHANGE ACT: the Securities Exchange Act of 1934, as
amended.
GAAP: generally accepted accounting principles,
consistently applied.
PERSON: an individual, partnership, joint-stock
company, corporation, limited liability company, trust or unincorporated
organization, and a government or agency or political subdivision thereof.
-12-
REGISTRATION RIGHTS AGREEMENT: that certain
registration rights agreement, dated as of the Closing Date, by and among the
Company and each of the Investors, such agreement to be substantially in the
form attached hereto as EXHIBIT E.
SEC: the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
SECURITIES ACT: the Securities Act of 1933, as
amended.
SECURITY, SECURITIES: as defined in Section 2(1) of
the Securities Act.
SHARES: Shares of Preferred Stock issued pursuant to
Section 2 hereunder.
TRANSFER: any sale, assignment, pledge,
hypothecation, or other disposition or encumbrance.
(b) DIRECTLY OR INDIRECTLY. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person.
(c) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State.
(d) SECTION HEADINGS. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
10. TERMINATION
(a) In the event (i) the Merger Agreement is terminated prior
to the Closing Date or (ii) the Merger Agreement is not executed and delivered
by the parties thereto within three business days of the date hereof, this
Agreement will be terminate automatically and shall have no further force or
effect.
(b) Upon a termination of this Agreement pursuant to Section 10(a), the Company
shall promptly return any Exchange Instruments delivered to it pursuant to
Section 2(f) to the Exchange Investors.
11. MISCELLANEOUS
(a) NOTICES. All communications under this Agreement shall be
in writing and shall be delivered by hand or facsimile
-13-
or mailed by overnight courier or by registered mail or certified mail, postage
prepaid:
(i) if to the Company, c/o Warburg, ▇▇▇▇▇▇ & Co., at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇),
or at such other address or facsimile number as
Warburg may have furnished the other parties hereto
in writing;
(ii) if to any Investor, at the address or facsimile
number set forth below such Investor's name on
Schedule I or Schedule II hereto, or at such other
address or facsimile number as the Investor may have
furnished the other parties hereto in writing.
(b) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery, if a business day,
otherwise the first business day thereafter; if mailed by courier, on the first
business day following the date of such mailing; and if mailed by registered or
certified mail, on the third business day after the date of such mailing.
(c) REPRODUCTION OF DOCUMENTS. This Agreement and all
documents relating thereto, including, without limitation, (i) consents, waivers
and modifications relating hereto which may hereafter be executed, (ii)
documents received by the Investors on the Closing Date (except for certificates
evidencing the Shares themselves), and (iii) financial statements, certificates
and other information previously or hereafter furnished to the Investors, may be
reproduced by the Investors by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process and the Investors
may destroy any original document so reproduced. All parties hereto agree and
stipulate that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by the
Investor in the regular course of business) and that any enlargement, facsimile
or further reproduction of such reproduction shall likewise be admissible in
evidence.
(d) SURVIVAL. All warranties, representations, and covenants
made by the Investors and the Company herein or in any certificate or other
instrument delivered by any Investor or the Company under this Agreement shall
be considered to have been relied upon by the Company or the Investors, as the
case may be, and shall survive all deliveries to the Investors of the Shares, or
payment to the Company for such Shares, regardless of any investigation made by
the Company or any of the Investors, as the case may be, or on the Company's or
the Investor's behalf. All statements in any such certificate or other
instrument shall
-14-
constitute warranties and representations by the Company hereunder.
(e) SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties. Nothing in this Agreement shall confer upon any
Person not a party to this Agreement any rights or remedies of any nature or
kind whatsoever under or by reason of this Agreement.
(f) ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement,
the Registration Rights Agreement, the Stockholders Agreement and the
Certificate of Incorporation (including the Amended and Restated Certificate)
constitute the entire understandings of the parties hereto and supersede all
prior agreements or understandings with respect to the subject matter hereof
among such parties. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and each of the Investors.
(g) SEVERABILITY. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(h) OBLIGATIONS SEVERAL. Notwithstanding anything to the
contrary contained in this Agreement, the representations and warranties,
covenants and other agreements under this Agreement shall be several, but not
joint.
(i) LIMITATION ON ENFORCEMENT OF REMEDIES. The Company hereby
agrees that it will not assert against the partners of any of the Investors any
claim it may have under this Agreement by reason of any failure or alleged
failure by any of the Investors to meet its obligations hereunder.
(j) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
-15-
Please indicate your acceptance and approval of the foregoing
in the space provided below.
HILLTOPPER HOLDING CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
ACCEPTED AND APPROVED
AS OF THE 24th DAY OF
FEBRUARY, 2000
WARBURG, ▇▇▇▇▇▇ EQUITY PARTNERS, L.P.
By: Warburg, ▇▇▇▇▇▇ & Co.,
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY PARTNERS I, C.V.
By: Warburg, ▇▇▇▇▇▇ & Co.,
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY PARTNERS II, C.V.
By: Warburg, ▇▇▇▇▇▇ & Co.,
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
-▇▇-
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ EQUITY PARTNERS III, C.V.
By: Warburg, ▇▇▇▇▇▇ & Co.,
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VI, L.P.
By: /s/ ▇▇▇▇▇▇▇▇ Rather
------------------------
Name: ▇▇▇▇▇▇▇▇ Rather
Title: Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇▇ Rather
------------------------
Name: ▇▇▇▇▇▇▇▇ Rather
Title: Attorney-in-Fact
SOUTH ATLANTIC VENTURE FUND II, LIMITED PARTNERSHIP
By: South Atlantic Venture Partners II,
Limited Partnership, General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
SOUTH ATLANTIC VENTURE FUND III, LIMITED PARTNERSHIP
By: South Atlantic Venture Partners
III, Limited Partnership, General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PRIVATE EQUITY FUND IV, LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners
IV, Limited Partnership, General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
SOUTH ATLANTIC PRIVATE EQUITY FUND IV (QP), LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners
IV, Limited Partnership, General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
THE ▇▇▇▇▇▇ PARTNERSHIP, LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-18-
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ Rather
------------------------
Name: ▇▇▇▇▇▇▇▇ Rather
Title: Attorney-in-Fact
-19-
SCHEDULE I
CASH INVESTORS
Number of Number of Price Per
Shares of Shares of Share of
Series A Series B Preferred
Name/Address/Fax No. of Preferred Preferred Stock
Subscriber Stock Stock ---------
----------------------- --------- ---------
Warburg, ▇▇▇▇▇▇ Equity Partners, L.P. 8,534,813 $5.50
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners I, C.V. 270,946 $5.50
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners II, C.V. 180,631 $5.50
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Warburg, ▇▇▇▇▇▇ Netherlands Equity Partners III, C.V. 45,158 $5.50
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
South Atlantic Private Equity Fund, IV, L.P. 381,818 $5.50
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
South Atlantic Private Equity Fund, IV (QP), L.P.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 527,273 $5.50
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-21-
SCHEDULE II
EXCHANGE INVESTORS
Number of Number of
Shares of Shares of Value per
Series A Series A Number of Share of
Name/Address/Fax No. of Preferred Preferred Exchange Exchange
Subscriber Stock Stock Shares Shares
----------------------- --------- --------- --------- ---------
Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VI, L.P. 2,520,193 2,520,193 $5.50
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
WCAS Healthcare Partners, L.P. 81,384 81,384 $5.50
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
South Atlantic Venture Fund II, Limited Partnership 798,963 798,963 $5.50
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
South Atlantic Venture Fund III, Limited Partnership 206,214 206,214 $5.50
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Number of Number of
Shares of Shares of Value per
Series A Series A Number of Share of
Name/Address/Fax No. of Preferred Preferred Exchange Exchange
Subscriber Stock Stock Shares Shares
----------------------- --------- --------- --------- ---------
The ▇▇▇▇▇▇ Partnership, Limited Partnership 187,500 187,500 $5.50
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
with a copy to:
The ▇▇▇▇▇▇ Partnership,
Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 49,977 49,977 $5.50
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 49,977 49,977 $5.50
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 29,977 29,977 $5.50
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
-23-
Number of Number of
Shares of Shares of Value per
Series A Series A Number of Share of
Name/Address/Fax No. of Preferred Preferred Exchange Exchange
Subscriber Stock Stock Shares Shares
----------------------- --------- --------- --------- ---------
▇▇▇▇▇▇ ▇. ▇▇▇▇ 9,686 9,686 $5.50
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 10,000 10,000 $5.50
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 10,772 10,772 $5.50
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 705 705 $5.50
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 569,917 569,917 $5.50
c/o Centennial HealthCare Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-24-
Number of Number of
Shares of Shares of Value per
Series A Series A Number of Share of
Name/Address/Fax No. of Preferred Preferred Exchange Exchange
Subscriber Stock Stock Shares Shares
----------------------- --------- --------- --------- ---------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 83,225 83,225 $5.50
c/o Centennial HealthCare Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ 92,792 92,792 $5.50
c/o Centennial HealthCare Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. 8,970 8,970 $5.50
c/o Centennial HealthCare Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-25-
