Exhibit (d)(4)
OPTION AGREEMENT (this "Agreement"), dated as of August 1,
2002, between OMEGA WORLDWIDE, INC., a Maryland corporation
("Omega"), and FOUR SEASONS HEALTH CARE LIMITED, a private
limited company organized under the laws of England and Wales
("Four Seasons").1
WHEREAS, Omega, Four Seasons and Delta I Acquisition Inc., a
Delaware corporation and a newly formed wholly owned indirect subsidiary of Four
Seasons ("Omega Acquisition"), have contemporaneously with the execution of this
Agreement entered into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), which provides, among other things, that upon
the terms and subject to the conditions thereof, Omega Acquisition will commence
a tender offer (the "Offer") for all of the issued and outstanding shares of
common stock of Omega (the "Omega Common Stock") and, after accepting for
payment and paying for the Omega Common Stock validly tendered and not withdrawn
pursuant to the Offer (the "Tendered Shares"), Omega Acquisition shall merge
with and into Omega with Omega continuing as the surviving entity as a wholly
owned subsidiary of Four Seasons; and
WHEREAS, as an essential condition and inducement to Four
Seasons' entering into the Merger Agreement and in consideration therefor, Omega
has agreed to grant Four Seasons the Option (as hereinafter defined); and
WHEREAS, capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein and in the Merger Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. GRANT OF OPTION.
Omega hereby grants to Four Seasons an irrevocable option (the
"Option") to purchase for a price per share equal to the Offer Price (the
"Option Price"), subject to the terms hereof, a number of fully paid and
nonassessable shares of Omega Common Stock (such shares being referred to herein
as the "Option Shares") equal to the Applicable Omega Common Stock Amount (as
hereafter defined). The "Applicable Omega Common Stock Amount" shall be the
number of shares of Omega Common Stock which, when added to the number of shares
of Omega Common Stock owned by Omega Acquisition immediately prior to the
exercise of the Option, would result in Omega Acquisition owning, in the
aggregate, immediately after exercise of the Option no more than 90.0% of the
then outstanding shares of Omega Common Stock; PROVIDED, HOWEVER, that in no
event shall the Applicable Omega Common Stock Amount exceed 19.8% of the Omega
Common Stock then issued and outstanding (without giving effect to any shares of
Omega Common Stock issued pursuant to the Option).
2. EXERCISE OF OPTION.
(a) EXERCISE OF OPTION. Four Seasons may exercise the Option
if, but only if (a) Omega Acquisition shall have accepted for payment and paid
for all Omega Common Stock
validly tendered and not withdrawn pursuant to the Offer and (b) after giving
effect to such exercise, the Omega Acquisition would own 90.0% of the then
outstanding shares of Omega Common Stock.
(b) EXPIRATION OF THE OPTION. The Option shall expire on the
date thirty (30) Business Days after the expiration of the Offer, if not
exercised on or prior thereto. Notwithstanding the expiration of the Option, and
provided that the conditions set forth in Section 2(a) hereof have been
satisfied, Four Seasons shall be entitled to purchase those Option Shares with
respect to which it may have exercised the Option in accordance with the terms
hereof prior to the expiration of the Option, and the expiration of the Option
will not affect any rights hereunder which by their terms do not terminate or
expire prior to or at such expiration.
(c) NOTICE OF EXERCISE; CLOSING. In the event that Four
Seasons is entitled to and desires to exercise the Option, it shall send to
Omega a written notice (such notice being herein referred to as an "Exercise
Notice" and the date of issuance of an Exercise Notice being herein referred to
as the "Notice Date'") indicating that Four Seasons is exercising the Option and
specifying (i) the total number of Option Shares that it will purchase pursuant
to such exercise and (ii) a place and date not earlier than one (1) Business Day
and not later than five (5) Business Days from the Notice Date for the closing
of such purchase (the "Option Closing Date").
(d) PURCHASE PRICE. At the Option Closing Four Seasons shall
pay the full purchase price for the Option Shares being purchased under the
Option in immediately available funds by wire transfer to a bank account
designated by Omega; PROVIDED that the failure by Four Seasons to effect such a
wire transfer because of a failure or refusal of Omega to designate such a bank
account shall not relieve Omega of its obligations under Section 2(e) at the
Option Closing.
(e) ISSUANCE OF OPTION SHARES. At the Option Closing,
simultaneously with the payment of the purchase price therefor as provided in
Section 2(d), Omega shall deliver to Four Seasons a certificate or certificates
representing the number of Option Shares purchased by Four Seasons. If at the
time of issuance of the Option Shares Omega shall have issued any rights or
other securities which are attached to or otherwise associated with the Omega
Common Stock, then each Option Share issued pursuant to such exercise shall also
represent such rights or other securities with terms substantially the same as
and at least as favorable to Four Seasons as are provided under any shareholder
rights agreement or similar agreement of Omega then in effect.
(f) RECORD HOLDER; EXPENSES. Upon the delivery by Four Seasons
to Omega of the Exercise Notice and the tender of the applicable Option Price in
immediately available funds, Four Seasons shall be deemed to be the holder of
record of the Option Shares issuable upon such exercise, notwithstanding that
the stock transfer books of Omega may then be closed, that certificates
representing such Option Shares may not then have been actually delivered to
Four Seasons or that Omega may have failed or refused to designate the bank
account described in Section 2(d). Omega shall pay all expenses that may be
payable in connection with the preparation. issuance and delivery of stock
certificates and/or substitute option agreement under this Section 2 in the name
of Four Seasons or its assignee, transferee or designee and any filing
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fees and other expenses arising from compliance by Four Seasons with any
requirements of any Governmental Entity.
3. INVESTMENT INTENT. Four Seasons represents and warrants that it is
entering into this Agreement and is acquiring and/or will acquire the Option
Securities (as defined below) for its own account and not with a view to resale
or any public distribution of all or any part of the Option Securities in
violation of applicable Law.
4. EVALUATION OF INVESTMENTS. Four Seasons, by reason of its knowledge
and experience in financial and business matters, believes itself capable of
evaluating the merits and risks of an investment in the Option and the Option
Shares to be purchased pursuant to this Agreement (collectively, the "Option
Securities").
5. RESERVATION OF SHARES. Omega agrees (i) that it shall at all times
maintain, free from preemptive rights, sufficient authorized but unissued or
treasury shares of Omega Common Stock (or Other Option Securities (as defined
below)) issuable pursuant to this Agreement so that the Option may be exercised
without additional authorization of shares of Omega Common Stock (or Other
Option Securities) after giving effect to all other options, warrants,
convertible securities and other rights to purchase Omega Common Stock (or Other
Option Securities); (ii) that it will not, by charter amendment or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observance or performance of any
of the covenants to be observed or performed hereunder by Omega; and (iii)
promptly to take all action as may from time to time be required in order to
permit Four Seasons to exercise the Option and Omega to duly and effectively
issue Omega Common Stock (or Other Option Securities) pursuant hereto.
6. LOST OPTIONS. Upon receipt by Omega of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Omega will execute and deliver a new agreement of like
tenor and date.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. The number of Option
Shares purchasable upon the exercise of the Option shall be subject to
adjustment from time to time as provided in this Section 7.
(a) TRANSACTION ADJUSTMENT. In the event of any change in
Omega Common Stock by reason of stock dividends, splits, mergers,
recapitalizations, combinations, subdivisions, conversions, exchanges of shares
or other similar transactions, then the Option Shares purchasable upon exercise
hereof shall be appropriately adjusted so that Four Seasons shall receive upon
exercise of the Option and payment of the aggregate Option Price hereunder the
number and class of shares or other securities (any such shares or other
securities referred to herein as "Other Option Securities") or property
(including cash) that Four Seasons would have owned or been entitled to receive
after the happening of any of the events described above if the Option had been
exercised immediately prior to such event, or the record date therefor, as
applicable.
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(b) OPTION PRICE ADJUSTMENT. Whenever the number of Option
Shares subject to this Option are adjusted pursuant to Section 7(a), the Option
Price shall be appropriately adjusted, if applicable, by multiplying the Option
Price by a fraction, the numerator of which shall be equal to the aggregate
number of Option Shares purchasable under the Option prior to the adjustment and
the denominator of which shall be equal to the aggregate number of Option Shares
purchasable under the Option immediately after the adjustment.
8. EXTENSION OF TIME FOR REGULATORY APPROVALS. The periods related to
exercise of the Option and the other rights of Four Seasons hereunder shall be
extended (i) to the extent necessary to obtain all regulatory approvals for the
exercise of such rights, and for the expiration of all statutory waiting periods
and (ii) to the extent necessary to avoid liability under Section 10(b) of the
Exchange Act by reason of such exercise.
9. REPRESENTATIONS AND WARRANTIES OF OMEGA. Omega hereby represents and
warrants to Four Seasons as follows:
(a) AUTHORITY, ETC. Omega has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Omega and no other corporate
proceedings on the part of Omega are necessary to authorize this Agreement or to
consummate the transactions so contemplated. This Agreement has been duly and
validly executed and delivered by Omega and constitutes the legal, valid and
binding obligation of Omega, enforceable against Delta In accordance with the
terms hereof.
(b) CORPORATE ACTION. Omega has taken all necessary action to
authorize and reserve and to permit it to issue, and at all times from the date
hereof through the termination of this Agreement in accordance with its terms
will have reserved for issuance upon the exercise of the Option, that number of
shares of Omega Common Stock equal to the maximum number of shares of Omega
Common Stock at any such time and from time to time issuable hereunder, and all
such shares of Omega Common Stock, upon issuance pursuant hereto, will be duly
authorized, validly issued, fully paid, nonassessable, and will be delivered
free and clear of all Liens created by Omega and not subject to any preemptive
rights.
(c) NO CONFLICT. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with, result in any
violation of or default (with or without notice or lapse of time or both) under,
any provision of any agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to Omega or Omega's property or assets. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic, foreign or supranational, is required by
or with respect to Delta In connection with the execution and delivery of this
Agreement or the consummation by Omega of the transactions contemplated hereby.
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(d) ANTI-TAKEOVER STATUTES. The provisions of any applicable
state takeover law or applicable Charter provision containing change of control
or anti-takeover provisions will not, prior to the termination of this
Agreement, apply to this Agreement or the transactions contemplated hereby and
thereby. Omega has taken, and will in the future take, all steps necessary to
(i) irrevocably exempt the transactions contemplated by this Agreement from any
other applicable state takeover law and from any applicable Charter provision
containing change of control or anti-takeover provisions and (ii) waive the
ownership limit contained in the Charter with respect to any Omega Common Stock
or Other Option Securities acquired by Four Seasons pursuant to the Option.
10. ASSIGNMENT. Omega may not assign any of its rights or obligations
under this Agreement to any other Person, without the express written consent of
Four Seasons. Four Seasons may not assign any of its rights or obligations under
this Agreement to any other Person, except that Four Seasons may assign its
rights hereunder to any Affiliate of Four Seasons, including Omega Acquisition.
11. APPLICATION FOR REGULATORY APPROVAL. Each of Four Seasons and Omega
will use its reasonable efforts to make all flings with, and to obtain consents
of, all third parties and Governmental Entities necessary to the consummation of
the transactions contemplated by this Agreement; PROVIDED that neither Omega nor
Four Seasons nor any subsidiary or affiliate thereof will be required to agree
to any divestiture by itself or any of its affiliates of shares of capital stock
or of any business, assets or property, or the imposition of any material
limitation on the ability of any of them to conduct their businesses or to own
or exercise control of such assets, properties and stock.
12. SPECIFIC PERFORMANCE. The parties hereto acknowledge that damages
would be an inadequate remedy for a breach of this Agreement by either party
hereto and that the obligations of the parties hereto shall be enforceable by
either party hereto through injunctive or other equitable relief.
13. SEVERABILITV. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
14. NOTICES. All notices, claims, demands and other communications
hereunder shall be deemed to have been duly given or made when delivered in
accordance with Section 9.4 of the Merger Agreement.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Maryland, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
The state or Federal courts located within the State of Maryland shall have
jurisdiction over any and all disputes between the
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parties hereto, whether in law or equity, arising out of or relating to this
agreement and the agreements, instruments and documents contemplated hereby and
the parties consent to and agree to submit to the jurisdiction of such courts.
Each of the parties hereby waives and agrees not to asset in any such dispute,
to the fullest extent permitted under applicable law, any claim that (i) such
party is not personally subject to the jurisdiction of such courts, (ii) such
party and such party's property is immune from any legal process issued by such
courts or (iii) any litigation or other proceeding commenced in such courts is
brought in an inconvenient forum. The parties hereby agree that mailing of
process or other papers in connection with any such action or proceeding in the
manner provided in Section 9.4 of the Merger Agreement, or in such other manner
as may be permitted by law, shall be valid and sufficient service thereof and
hereby waive any objections to service accomplished in the manner herein
provided.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed to be an original, but all of which
shall constitute one and the same agreement.
17. EXPENSES. Except as otherwise expressly provided herein or in the
Merger Agreement, each of the parties hereto shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own financial
consultants, investment bankers, accountants and counsel.
18. ENTIRE AGREEMENT. Except as otherwise expressly provided herein or
in the Merger Agreement, this Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereto,
written or oral. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any party, other than the parties hereto, and their
respective successors and permitted assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly
provided herein. Any provision of this Agreement may be waived only in writing
at any time by the party that is entitled to the benefits of such provision.
19. AMENDMENT. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
20. FURTHER ASSURANCES. In the event of any exercise of the Option by
Four Seasons, Omega and Four Seasons shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary to the fullest extent permitted by law in order to consummate the
transactions provided for by such exercise. Nothing contained in this Agreement
shall be deemed to authorize Omega or Four Seasons to breach any provision of
the Merger Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Option Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
OMEGA WORLDWIDE, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President and Secretary
FOUR SEASONS HEALTH CARE LIMITED
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Director
