WARRANT SURRENDER AGREEMENT
EXHIBIT 99.9
This Warrant Surrender Agreement (this “Warrant Surrender Agreement”) is entered into
as of [_________], 2009 by each of the undersigned in favor and for the benefit of
Triumph HealthCare Holdings, Inc., a Delaware corporation (the “Company”), and RehabCare
Group, Inc., a Delaware corporation (“Parent”).
RECITALS
A. Each of the undersigned holds outstanding and unexercised warrant agreements (the
“Warrants”) entitling them to purchase, in the aggregate, such number of shares of common
stock of the Company, par value $0.01 per share (the “Warrant Shares”) as set forth
opposite such undersigned’s name on Exhibit A hereto.
B. The Company, Parent, RehabCare Group East, Inc., RehabCare Hospital Holdings, LLC,
RehabCare Merger Sub Corporation, and TA Associates, Inc., in its capacity as Securityholder
Representative, have entered into that certain Agreement and Plan of Merger (the “Merger
Agreement”), dated as of the date hereof, pursuant to which each of the undersigned will be
entitled to certain consideration as described in the Merger Agreement and other documents
referenced therein in exchange for the surrender and cancellation of the Warrants and the
undertaking to be bound by the obligations described in Section 3 of this Warrant Surrender
Agreement.
C. Subject to the consummation of the Merger, each of the undersigned desires to terminate the
Warrants and undertakes to be bound by the obligations described in Section 3 of this
Warrant Surrender Agreement in consideration of the consideration described in the Merger Agreement
and the other documents referenced therein.
Now, therefore, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees as follows:
AGREEMENT
1. Representation and Warranties. Each of the undersigned represents and warrants to
the Company and Parent that: (a) the Warrants have not been exercised by the undersigned, that
these are the only Warrants granted to the undersigned by the Company or any of its Subsidiaries;
(b) the undersigned is the sole owner of the Warrants free and clear of any liens, pledges,
mortgages, deeds of trust, charge, option, right of first refusal, easements, servitudes, proxies,
voting trusts or other agreements, restrictions, security interests, claims, rights of another or
encumbrances; (c) the Warrants constitute all of the warrants or other rights to purchase
securities of the Company and its Subsidiaries held by the undersigned; (d) it has full limited
partnership power and authority to execute and deliver this Warrant Surrender Agreement and any
other agreements or instruments executed by it in connection herewith and to consummate the
transactions contemplated herein or therein; (e) this Warrant Surrender Agreement and the other
agreements and instruments executed by the undersigned in connection herewith are valid and binding
obligations of the undersigned enforceable in accordance with their respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws relating to or affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general principles of equity; (f)
it has executed this Warrant Surrender Agreement voluntarily and without any duress or undue
influence; (g) it has read this Warrant Surrender Agreement, understands the terms and
consequences of it and has had adequate time to think about this Warrant Surrender Agreement
and discuss it with its own counsel and advisors; and (h) it is fully aware of the legal and
binding effect of this Warrant Surrender Agreement.
2. Termination of Warrants and Warrant Shares. Each of the undersigned hereby agrees
to deliver to Parent at or prior to the Effective Time the original Warrants and hereby agrees
that, effective as of the Effective Time and subject to the consummation of the Merger, the
Warrants shall be automatically exchanged for the right to receive the consideration required to be
paid to the undersigned as set forth and subject to the conditions in the Merger Agreement. Each
of the undersigned further agrees that the Warrants are hereby cancelled and terminated and shall
be of no further force or effect, and each of the undersigned hereby surrenders all of the
undersigned’s rights in the Warrants and any Warrant Shares.
3. Merger Agreement Obligations. Each of the undersigned hereby (i) agrees to be
bound by all of the provisions of the Merger Agreement applicable to the Warrantholders, (ii)
agrees to the appointment of TA Associates, Inc. as the Securityholder Representative pursuant to
Section 10.1 of the Merger Agreement and (iii) acknowledges that TA Associates, Inc. will
act on the undersigned’s behalf as the Securityholder Representative pursuant to the terms of the
Merger Agreement. Each of the undersigned also acknowledges that a portion of the Warrant Payment
will be held in Escrow Accounts in connection with post-closing purchase price adjustments,
reimbursement obligations and indemnification obligations pursuant to terms and conditions of the
Merger Agreement. Finally, each of the undersigned acknowledges that pursuant to Section
10.1 of the Merger Agreement, in the event that the Representative Expense Fund is insufficient
to satisfy the expenses of the Securityholder Representative, the Securityholder Representative is
entitled to recover any such expenses directly from the Securityholders.
4. Defined Terms. Any capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to such terms in the Merger Agreement.
5. Entire Agreement. This Warrant Surrender Agreement, together with the Merger
Agreement, the Backstop Securities Agreement, the Registration Rights Agreement and the Escrow
Agreement, constitutes the complete and entire understanding between the undersigned, the Company
and Parent with respect to the subject matter of this Warrant Surrender Agreement. The terms of
this Warrant Surrender Agreement may not be changed, altered, modified or amended, except in a
writing signed by the undersigned and Parent.
6. Severability. Any term or provision of this Warrant Surrender Agreement that is
invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms or provisions of this Warrant Surrender Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Warrant Surrender Agreement in any other
jurisdiction. If any provision of this Warrant Surrender Agreement is so broad as to be
unenforceable, then the provision will be interpreted to be only so broad as is enforceable.
7. Governing Law. This Warrant Surrender Agreement shall be governed by the internal
laws of the State of Delaware, without regard to the conflict-of-laws provisions thereof.
9. Counterparts; Electronic Transmission. This Warrant Surrender Agreement may be
executed in two or more counterparts (any of which may be delivered by facsimile or email
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transmission followed promptly by an executed original), each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Warrant Surrender
Agreement as of the date and year first above written.
| TA SUBORDINATED DEBT FUND, LP |
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| By: | TA Associates, Inc., its general partner | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| TA INVESTORS II, LP |
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| By: | TA Associates, Inc., its general partner | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Warrant Surrender Agreement]
Exhibit A
| Name | Warrant Shares | |||
