Exhibit (c)(12)
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INVESTMENT REPRESENTATION
AND
"ROLL OVER" SUBSCRIPTION AGREEMENT
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Investment Representation and "Roll Over"
Subscription Agreement (the "Agreement"), dated as of
February 25, 1998, by and among X.X. Childs Equity
Partners, L.P., a Delaware limited partnership
("Childs"), UHS Acquisition Corp., a Minnesota
corporation ("Merger Sub"), and Xxxxxx X. Xxxxx
(the "Stockholder").
WHEREAS, Childs and Merger Sub are parties to
an Agreement and Plan of Merger (the "Merger Agreement")
dated as of November 25, 1997 by and among Merger Sub,
Childs and Universal Hospital Services, Inc., a Minnesota
corporation (the "Company"), providing for, among other
things, the merger (the "Merger") of Merger Sub with and
into the Company, with the Company being the surviving
corporation in the Merger (the "Surviving Corporation");
WHEREAS, the Merger Agreement provides, among
other things, that subject to the terms and conditions of
the Merger Agreement, at the effective time of the Merger
(the "Effective Time"), except as otherwise agreed in
writing between Merger Sub and any holder thereof, each
share of the Company's common stock, par value $.01 per
share, together with the associated preferred stock
purchase rights (the "Common Stock"), issued and
outstanding immediately prior to the Effective Time,
shall be canceled, extinguished and converted into a
right to receive $15.50 in net cash per share without
interest thereon (the "Merger Consideration");
WHEREAS, the Stockholder is the beneficial and
record owner of 984 shares of Common Stock;
WHEREAS, the Stockholder is currently a member
of management or key employee of the Company;
WHEREAS, Childs, Merger Sub and the Stockholder
desire to allow the shares of Common Stock held by the
Stockholder to remain issued and outstanding in the
Merger, in lieu of receipt of the Merger Consideration
therefor;
WHEREAS, this Agreement is one of several
subscription agreements being entered into by Childs and
Merger Sub with certain members of management or key
employees of the Company;
NOW, THEREFORE, in consideration of the
foregoing and in consideration of the mutual agreements
contained herein, the parties hereto agree as follows:
1. "Roll Over" of Shares.
a. Upon the terms and subject to the
conditions hereinafter set forth, the Stockholder hereby
agrees that at the Effective Time, the number of shares
of Common Stock owned beneficially and of record by such
Stockholder (together with the associated preferred
stock purchase rights, the "Rollover Shares"), as set
forth opposite such Stockholder's name on Appendix I
hereto, will not be cancelled, extinguished or converted
into the right to receive the Merger Consideration, but
instead each such Rollover Share will remain issued and
outstanding as one fully paid and nonassessable share of
common stock, par value $.01 per share, of the Surviving
Corporation ("Surviving Corporation Stock"). For
purposes of this Section 1(a) only, "Rollover Shares"
includes any shares of Common Stock acquired by the
undersigned after the date hereof and prior to the
Effective Time pursuant to employee benefit plans of the
Company or otherwise. The Stockholder further agrees
that he will not, and will not permit any company, trust
or other entity controlled by him, to (i) contract to
sell, sell or otherwise transfer or dispose of any of the
Rollover Shares or any interest therein or any voting
rights with respect thereto, other than as contemplated
hereby, or (ii) take any action which would make any
representation or warranty made by him in this Agreement
untrue or incorrect. Capitalized terms used and not
defined herein shall have the respective meanings
ascribed to such terms in the Merger Agreement.
b. Upon the terms and subject to the
conditions hereinafter set forth, as soon as practicable
following the Effective Time, the Stockholder shall
surrender to the Surviving Corporation a certificate or
certificates representing the Rollover Shares, and the
Surviving Corporation shall deliver to the Stockholder in
exchange therefor a certificate or certificates
representing a like number of fully paid and
nonassessable shares of Surviving Corporation Stock. The
Stockholder further agrees that prior to receipt of any
shares of Surviving Corporation Stock, the Stockholder
will execute a Stockholders' Agreement (the
"Stockholders' Agreement") by and among the Surviving
Corporation and each of the stockholders of the Surviving
Corporation, substantially in the form attached as
Exhibit C to the Private Placement Memorandum (as
hereinafter defined). The shares of Surviving
Corporation Stock acquired by the Stockholder pursuant to
the terms of this Agreement or after the Closing pursuant
to any employee benefit plans of the Surviving
Corporation, the Stockholders' Agreement or otherwise are
hereinafter sometimes referred to collectively herein as
the "Stock."
c. Notwithstanding anything to the contrary
contained herein, the Surviving Corporation shall have no
obligation to issue or deliver any shares of Surviving
Corporation Stock to (i) any person who is not a member
of management or key employee of the Surviving
Corporation on the date of such issuance and delivery or
(ii) any person who is a resident of a state or foreign
jurisdiction in which such issuance or delivery to him
would constitute a violation of the securities or "blue
sky" laws of such state or foreign jurisdiction.
2. Representations of the Stockholder.
a. The Stockholder hereby represents and
warrants that he is the beneficial and record owner of
the number of shares of Common Stock set forth opposite
his name on Appendix I hereto, free and clear of all
liens, charges, encumbrances, adverse claims, voting
agreements and commitments of every kind, except as
disclosed on Appendix I. Except as set forth on Appendix
I and except for options to purchase 17,630 shares of
Common Stock, none of the Stockholder or any company,
trust or other entity controlled by the Stockholder owns
any additional shares of the capital stock of the Company
or securities convertible thereinto or any interest
therein or has any voting rights with respect to any
additional shares of capital stock of the Company.
b. The Stockholder hereby represents and
warrants that (i) the Stockholder is acquiring the Stock
for the Stockholder's own account, for investment only
and not with a view toward resale or other distribution
of the Stock within the meaning of the Securities Act of
1933, as amended (the "Securities Act"); (ii) the
Stockholder has no present intention of selling or
otherwise disposing of all or any portion of the Stock;
and (iii) the Stockholder understands that the Stock has
not been registered under the Securities Act, in reliance
upon exemptions contained in the Securities Act and
applicable regulations promulgated thereunder or
interpretations thereof, and cannot be offered for sale,
sold or otherwise transferred unless such sale or
transfer is so registered or qualifies for exemption from
registration under the Securities Act.
c. The Stockholder acknowledges that he has
been advised by the Company that: (i) the Stock must be
held indefinitely and the Stockholder must continue to
bear the economic risk of the investment in the Stock
unless the offer and sale of such Stock is subsequently
registered under the Act and all applicable state or
foreign securities laws or an exemption from such
registration is available; (ii) it is not anticipated
that there will be any public market for the Stock in the
foreseeable future; (iii) the Stock may be considered
"restricted securities" within the meaning of Rule 144
promulgated under the Act; (iv) Rule 144 is not currently
expected to be available with respect to the offers or
sales of any securities of the Surviving Corporation
after the Merger, and the Surviving Corporation has made
no covenant and is under no obligation to make such Rule
available; (v) when and if the Stock may be disposed of
without registration under the Act in reliance on Rule
144, such disposition can be made by certain persons only
in limited amounts in accordance with the terms and
conditions of such Rule; (vi) if the Rule 144 exemption
is not available, public offer or sale without
registration will require the availability of an
exemption under the Act and if an exemption for such
offers or sales is not available, registration of the
Stock may be required, but that the Surviving Corporation
is under no obligation to register the Stock or to
facilitate compliance or to comply with any exemption,
except as otherwise provided in the Stockholders'
Agreement; (vii) a restrictive legend or legends
substantially in the form set forth in the Stockholders'
Agreement shall be placed on the certificates
representing the Stock; and (viii) a notation shall be
made in the appropriate records of the Surviving
Corporation indicating that the Stock is subject to
restrictions on transfer and, if the Surviving
Corporation should at some time in the future engage the
services of a stock transfer agent, appropriate stop
transfer restrictions will be issued to such transfer
agent with respect to the Stock.
d. The Stockholder further represents and
warrants that (i) he and his representatives have
carefully reviewed the Private Placement Memorandum dated
February 4, 1998, including the exhibits thereto, and any
supplement thereto furnished to the undersigned
(collectively, the "Private Placement Memorandum"); (ii)
he understands and has taken cognizance of, or has been
advised by his representatives as to, all the risk
factors related to the acquisition of the Stock,
including those set forth in the Private Placement
Memorandum and the exhibits thereto, and no
representations have been made to the Stockholder or such
representatives concerning the Stock, the Surviving
Corporation or its business or prospects or other
matters, except as set forth in the Private Placement
Memorandum; (iii) the Stockholder and his representatives
have been granted the opportunity to ask questions of,
and receive answers from, representatives of the
Surviving Corporation concerning the terms and conditions
of the acquisition of the Stock and to obtain any
documents, records or other additional information which
the Stockholder, or his representatives, deem necessary
to verify the accuracy of the information contained in
the Private Placement Memorandum; (iv) the Stockholder's
knowledge and experience in financial and business
matters is such that he is capable of evaluating the
merits and risks of the investment in the Stock, or he
has been advised by a representative possessing such
knowledge and experience; (v) the Stockholder is a member
of management or key employee of the Company and will,
after the consummation of the Merger, be a member of
management or key employee of the Surviving Corporation;
(vi) in making the Stockholder's decision to invest in
the Stock hereby subscribed for, he has relied solely
upon the independent investigations made by him and, to
the extent believed by the Stockholder to be appropriate,
his representatives, including his own professional
legal, tax and other advisors; (vii) his financial
condition is such that he can afford to bear the economic
risk of holding the unregistered Stock for an indefinite
period of time and has adequate means for providing for
his current needs and personal contingencies; (viii) he
can afford to suffer a complete loss of his investment in
the Stock; (ix) the Stock is a speculative investment
which involves a high degree of risk of loss of his
investment therein and there are substantial restrictions
on the transferability of, and there will be no public
market for, the Stock and, accordingly, it may not be
possible to liquidate his investment without a
substantial loss in the case of an emergency, if at all;
and (x) the Stockholder resides at the address set forth
on the signature page hereto and does not have any
present intention of establishing a residence in any
other state or jurisdiction.
e. The Stockholder further represents and
warrants that (i) he has full right, power and authority
to enter into and perform this Agreement, and this
Agreement has been duly authorized, executed and
delivered by him and is valid, binding and enforceable
against him in accordance with its terms, and (ii) either
(A) he is not legally married or (B) this Agreement has
been duly executed by his spouse on the signature page
hereof.
3. Conditions to the Company's Obligations. The
Surviving Corporation's obligation to issue the Stock
hereunder is subject to the occurrence of the Effective
Time and to the satisfaction at or prior to the Effective
Time of the following further conditions:
a. The representations and warranties of the
Stockholder contained in Section 2 hereof shall be true
and correct as of the Effective Time.
b. The Stockholder shall have performed all
obligations and complied with all agreements required to
be performed or complied with by the Stockholder under
this Agreement at or prior to the Effective Time.
c. The Stockholder shall have executed and
delivered to Childs the Stockholders' Agreement.
4. Binding Effect. The provisions of this
Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs,
successors and assigns. Notwithstanding the foregoing,
neither this Agreement nor any right, remedy, obligation
or liability arising hereunder or by reason hereof shall
be assignable by any of the parties hereto without the
prior written consent of the other parties hereto.
5. Applicable Law. The laws of the state of
Minnesota shall govern the interpretation, validity and
performance of the terms of this Agreement, regardless of
the law that might be applied under applicable principles
of conflicts of law.
6. Survival of Representations and Warranties.
The representations and warranties of the parties hereto
contained in this Agreement shall survive the execution
and delivery of this Agreement.
7. Headings; Execution in Counterparts. The
headings and captions contained herein are for
convenience of reference only and shall not control or
affect the meaning or construction of any provision
hereof. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an
original and which together shall constitute one and the
same instrument.
8. Pronouns. Unless otherwise indicated herein
or the context otherwise requires, the masculine pronoun
shall include the feminine and neuter, and the singular
shall include the plural.
9. Amendment. This Agreement may not be amended,
modified or supplemented and no waivers of or consents to
departures from the provisions hereof may be given unless
consented to in writing by the parties hereto. Unless
otherwise specified in such waiver or consent, a waiver
or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which
given.
10. Entire Agreement. This Agreement and the
Stockholders' Agreement and the other documents referred
to herein contain the entire agreement of the parties in
respect of the matters set forth herein and therein.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above
written.
X.X. Childs Equity Partners, L.P.
By: X.X. Childs Advisors, L.P.
General Partner
By: X.X. Childs Associates, L.P.
General Partner
By: X.X. Childs Associates, Inc.
General Partner
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
UHS Acquisition Corp.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
STOCKHOLDER:
/s/ Xxxxxx X. Xxxxx
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Signature of Stockholder
Xxxxxx X. Xxxxx
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Name of Stockholder
1262 Wilderness Curve
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Xxxxx, XX 00000
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Address of Stockholder
Acknowledgment and Agreement of Spouse
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The undersigned spouse of the above-named
Stockholder acknowledges that he/she has read the foregoing
Agreement and agrees to be bound thereby.
/s/ Xxxx Xxxxx
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Signature of Spouse
Xxxx Xxxxx
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Name of Spouse
Appendix I
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Name of Stockholder: Xxxxxx X. Xxxxx
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Number of Shares of Common Stock
Owned Beneficially or of Record
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984
