1
Exhibit 10.5
EXCHANGE AGREEMENT
Exchange Agreement ("Agreement") made effective this 30th day of June,
1997 by and among Xxxxxxxx Xxxxx, an individual residing at 00 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxx 00000 ("Xxxxx"), and Xxxxx X. Xxxxxx, with an address at
Capital Senior Living Corporation, 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000 ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxx desires to transfer and Xxxxxx desires to acquire
41,666.5 shares (the "Shares") of the capital stock of Capital Senior Living
Corporation, a Delaware corporation (the "Corporation"), owned by Xxxxx in
exchange for the Exchange Shares (as hereinafter defined) owned by Xxxxxx, on
the terms and subject to the conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises hereof and other good
and valuable consideration, and intending to be legally bound hereby, Xxxxx and
Xxxxxx hereby agrees as follows:
1. Exchange of Shares of the Corporation. Subject to the terms
and conditions hereof, Xxxxx hereby agrees to transfer, assign and convey to
Xxxxxx and Xxxxxx hereby agrees to accept from Xxxxx the Shares, and in
exchange therefor Xxxxxx agrees to transfer, assign and convey to Xxxxx the
Exchange Shares on the terms and conditions hereinafter set forth. At the
Closing (as hereinafter defined), Xxxxx will deliver the stock certificate
representing the Shares duly endorsed by Xxxxx to Xxxxxx.
2. Exchange of Exchange Shares. At the Closing, Xxxxxx shall
transfer, assign and convey to Xxxxx 75 shares (the "Exchange Shares") of the
capital stock of Quality Home Care, Inc., an Indiana corporation ("Quality
Home") owned by Xxxxxx in exchange for the Shares of the
1
2
Corporation set forth in Section 1 hereof. At the Closing, Xxxxxx will
deliver the stock certificate representing the Exchange Shares duly endorsed by
Xxxxxx to Xxxxx.
3. Adjustment in Number of Exchange Shares. Xxxxx and Xxxxxx
hereby acknowledge and agree that the number of Exchange Shares may be
increased or decreased immediately prior to an initial public offering of the
common stock of the Corporation to reflect the initial offering price of such
common stock of the Corporation in such initial public offering. The number of
Exchange Shares exchanged hereunder is intended to be valued in the formation
transaction immediately preceding such initial public offering at an amount
("Exchange Value") equal to 41,666.5 multiplied by an amount equal to the
initial public offering price of each share of the common stock of the
Corporation to be offered in such offering and therefor the number of Exchange
Shares shall be adjusted as necessary to equal the Exchange Value. Xxxxx and
Xxxxxx each agree to take such action as necessary to reflect any increase or
decrease in the number of Exchange Shares as provided herein.
4. Representations and Warranties Concerning the Transaction.
(a) REPRESENTATIONS AND WARRANTIES OF XXXXX. Xxxxx
represents and warrants to Xxxxxx that the statements contained in this Section
4(a) are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were submitted for the date of this Agreement throughout this
Section 4(a)).
(i) AUTHORIZATION OF TRANSACTION. Xxxxx has full
power and authority to execute and deliver this Agreement and to perform his
obligations hereunder and this Agreement has been duly executed and delivered
by Xxxxx. This Agreement constitutes the valid and legally binding obligation
of Xxxxx, enforceable in accordance with its terms and conditions. To the best
of Xxxxx'x knowledge, Xxxxx need not give any notice to, make any filing with,
or obtain any
2
3
authorization, consent, or approval of, any government or governmental agency
or third party in order to consummate the transactions contemplated by this
Agreement, except for the Stock Purchase and Stockholders' Agreement entered
into as of the 1st day of November, 1996, by and among the Corporation, Senior
Living Trust ("Trust"), Xxxxxxx X. Xxxx ("Xxxx") and Xxxxx (the "Stockholder
Agreement").
(ii) NONCONTRAVENTION. To the best of Xxxxx'x
knowledge, neither the execution and the delivery of this Agreement by Xxxxx,
nor the consummation of the transactions contemplated hereby by Xxxxx, will (A)
violate any statute, regulation, rule, judgment, order, decree, stipulation,
injunction, charge, or other restriction of any government, governmental
agency, or court to which Xxxxx is subject, or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any part the right to accelerate, terminate, modify, or cancel, or require any
notice under any contract, agreement or mortgage for borrowed money, instrument
of indebtedness, or other arrangement to which Xxxxx is a party or by which he
is bound or to which the Shares are subject, except for the Stockholder
Agreement.
(iii) SHARES. Xxxxx holds of record and owns
beneficially the Shares, free and clear of any restrictions on transfer,
claims, liens, security interests, encumbrances, options, warrants, rights,
contracts, calls, commitments, equities, and demands, except as set forth in
the Stockholder Agreement. Xxxxx is not a party to any option, warrant, right,
contract, call, put, or other agreement or commitment providing for the
disposition or acquisition of any capital stock of the Corporation, except as
set forth in the Stockholder Agreement. Upon payment for the Shares in
accordance with the terms hereof Xxxxxx will acquire good and clear title to
all of the Shares, all of which will be fully paid and non-assessable.
3
4
(b) REPRESENTATIONS AND WARRANTIES OF XXXXXX. Xxxxxx
represents and warrants to Xxxxx that the statements contained in this Section
4(b) are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout
this Section 4(b)).
(i) AUTHORIZATION OF TRANSACTION. Xxxxxx has
full power and authority to execute and deliver this Agreement and to perform
his obligations hereunder and this Agreement has been duly executed and
delivered by Xxxxxx. This Agreement constitutes the valid and legally binding
obligation of Xxxxxx, enforceable in accordance with its terms and conditions.
To the best of Xxxxxx'x knowledge, Xxxxxx need not give any notice to, make any
filing with, or obtain any authorization, consent, or approval of, any
government or governmental agency or third party in order to consummate the
transactions contemplated by this Agreement.
(ii) NONCONTRAVENTION. To the best of Xxxxxx'x
knowledge, neither the execution and the delivery of this Agreement by Xxxxxx,
nor the consummation of the transactions contemplated hereby by Xxxxxx, will
(A) violate any statute, regulation, rule, judgment, order, decree,
stipulation, injunction, charge, or other restriction of any government,
governmental agency, or court to which Xxxxxx is subject, or (B) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any contract, agreement or mortgage for borrowed
money, instrument of indebtedness, or other arrangement to which Xxxxxx is a
party or by which it is bound or to which any of its assets is subject.
(iii) EXCHANGE SHARES. Xxxxxx holds of record and
owns beneficially the Exchange Shares, free and clear of any restrictions on
transfer, claims, liens, security interest,
4
5
encumbrances, option warrants, rights, contracts, calls, commitments, equities
and demands. Xxxxxx is not a party to any option, warrant, right, contract,
call, put, or other agreement or commitment providing for the disposition or
acquisition of any capital stock of Quality Home. Upon payment for the
Exchange Shares in accordance with the terms hereof, Xxxxx will acquire good
and clear title to all of the Exchange Shares, all of which will be fully paid
and non-assessable.
(c) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties, covenants and agreements of Xxxxx and Xxxxxx
contained in this Agreement (or in any document delivered pursuant hereto)
shall survive the execution and delivery hereof and the Closing.
5. The Closing.
The closing ("Closing") shall take place effective as of June 30, 1997
("Closing Date").
6. Consent of Corporation and Other Shareholders.
Xxxxx and Xxxxxx acknowledge that the transfer of the Shares is
subject to restrictions set forth in the Stockholder Agreement. The
Corporation, Xxxxx, Xxxx and Trust hereby consent to the transfer of the Shares
hereunder and waive any rights whatsoever that the Corporation, Xxxx or Trust
may have to the Shares.
7. Initial Public Offering of the Corporation. If an initial
public offering of common stock of the Corporation is not completed by December
31, 1997, effective as of December 31, 1997, Xxxxx and Xxxxxx shall take all
actions necessary to have Xxxxx transfer, assign and convey back to Xxxxxx the
Exchange Shares and to have Xxxxxx transfer, assign and convey back to Xxxxx
the Shares.
8. Amendments to Stockholder Agreement. Section 5.3 of the
Stockholders Agreement concerning registration rights shall be deleted, except
that if the Shares and the Exchange Shares are reconveyed as provided in
Section 7 hereof, Section 5.3 of the Stockholder Agreement shall be
5
6
reinstituted and restored. Also, Section 5.4 of the Stockholder Agreement
provides anti-dilution rights to the stockholders. In recognition of the
exchange of shares set forth herein, the 2.8% minimum applicable to Xxxxx in
Section 5.4 shall be adjusted downward to take into account the Exchange Shares
which Xxxxx is receiving hereunder, except that if the Shares and the Exchange
Shares are reconveyed as provided in Section 7 hereof, the 2.8% minimum
applicable to Xxxxx in Section 5.4 shall be reinstituted and restored.
9. General Provisions.
(a) This Agreement may be amended, modified or terminated
only by written instrument executed by all parties hereto.
(b) Any party hereto may at any time waive compliance by
the other with any covenants or conditions contained in this Agreement but only
by written instrument executed by the party waiving such compliance. No such
waiver, however, shall be deemed to constitute the waiver of any such covenant
or condition in any other circumstance or the waiver of any other covenant or
condition.
(c) If any provision of this Agreement shall finally be
determined to be unlawful, then such provision shall be deemed to be severed
from this Agreement and every other provision of this Agreement shall remain in
full force and effect.
(d) This Agreement is not intended to, and shall not,
create any rights in or confer any benefits upon any person other than the
parties hereto.
(e) The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent, and no
rule of strict construction shall be applied against any party. The parties
intend that each representation, warranty, and covenant contained herein shall
have independent significance. If any party has breached any representation,
warranty, or covenant
6
7
relating to the same subject matter as any other representation, warranty or
covenant (regardless of the relative levels of specificity) which the party has
not breached, it shall not detract from or mitigate the fact that the party is
in breach of the first representation, warranty or covenant.
(f) All notices or other communications hereunder shall
be in writing and shall be deemed given on the date of delivery if delivered
personally or five days after deposit in a facility of the United States Post
Office if mailed by certified mail (return receipt requested) to the parties at
the addresses set forth above or at such other address as shall be specified by
like notice.
(g) The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between Xxxxx and Xxxxxx, with respect to the subject matter hereof, except the
Stockholder Agreement and as specifically provided or otherwise referred to
herein. This Agreement shall be governed in all respects including validity,
interpretation and effect by the laws of the State of Delaware and shall be
binding upon and shall inure to the benefit of the parties hereto, their heirs,
administrators or executives, successors and assigns.
(i) The parties hereto agree that they will, from time to
time, execute and deliver any and all additional and supplemental instruments,
and do such other acts and things which may be reasonably necessary or
desirable to effect the purposes and intent of this Agreement, and the
consummation of the transactions contemplated hereby.
7
8
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year first above stated.
/s/ XXXXXXXX XXXXX
--------------------------------------
Xxxxxxxx Xxxxx
/s/ XXXXX X. XXXXXX
--------------------------------------
Xxxxx X. Xxxxxx
Consented To:
-----------------------------------
Xxxxxxx X. Xxxx
Capital Senior Living Corporation
By:
--------------------------------
Xxxxxxx X. Xxxx
Senior Living Trust
By: /s/ XXXX X. XXXXXXXX
--------------------------------
Xxxx X. Xxxxxxxx, Trustee
8
