Exhibit 1
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TENDER AND OPTION AGREEMENT
AND IRREVOCABLE PROXY
BY AND AMONG
FOUR SEASONS HEALTH CARE LIMITED,
DELTA I ACQUISITION, INC.,
OMEGA WORLDWIDE, INC.
AND
XXXX X. XXXXXXXX
Dated as of July 31, 2002
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TENDER AND OPTION AGREEMENT
AND
IRREVOCABLE PROXY
TENDER AND OPTION AGREEMENT AND IRREVOCABLE PROXY (this
"Agreement") dated as of July 31, 2002, by and among FOUR SEASONS HEALTH CARE
LIMITED, a private limited company organized under the laws of England and Wales
("Parent"), DELTA I ACQUISITION, INC., a corporation organized under the laws of
Delaware and an indirect wholly owned subsidiary of Parent ("Sub"), OMEGA
WORLDWIDE, INC., a corporation organized under the laws of Maryland (the
"Company"), and XXXX X. XXXXXXXX (the "Stockholder").
W I T N E S S E T H:
WHEREAS, Parent, Sub and the Company propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement"), pursuant to which Sub is to
make a tender offer to purchase, subject to the terms and conditions of the
Merger Agreement, any and all of the Shares of the Company and thereafter be
merged with the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder beneficially owns
(as such term is defined in Rule 13d-3 promulgated under the Exchange Act) and
the Stockholder is entitled to dispose of and to vote the number of Shares set
forth on Exhibit A hereto, as such shares may be adjusted by stock dividend,
stock split, recapitalization, combination, merger (other than the Merger),
consolidation, reorganization or other change in the capital structure of the
Company affecting the Shares (such shares, together with any other shares the
beneficial ownership of which is acquired by the Stockholder during the period
from and including the date hereof through and including the date on which this
Agreement is terminated in accordance with its terms, are collectively referred
to herein as the Stockholder's "Subject Shares"); and
WHEREAS, as a condition to the willingness of Parent and Sub to
enter into the Merger Agreement, and as an inducement and in consideration
therefor, Parent has required that the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement,
capitalized terms used and not defined herein shall have the
respective meanings ascribed to them in the Merger Agreement.
ARTICLE II
TENDER OF SHARES
Section 2.1 Tender of Shares. The Stockholder hereby agrees to
tender validly (and not to withdraw), or to cause to be tendered validly (and
not withdrawn), pursuant to and in accordance with the terms of the Offer and
Rule 14d-2 under the Exchange Act, all of the Stockholder's Subject Shares
(other than Shares for which unexercised options are exercisable unless such
options shall have been exercised) not later than (i) the fifth (5th) Business
Day after commencement of the Offer and (ii) in the case of any Subject Shares
acquired after the date hereof, whether upon the exercise of options, warrants
or rights, the conversion or exchange of convertible or exchangeable securities,
or otherwise, the next succeeding Business Day after acquisition thereof, and
will cause the Stockholder's Subject Shares to remain validly tendered and not
withdrawn until the Offer is terminated or has expired without Sub purchasing
all Shares validly tendered in the Offer. Notwithstanding the provisions of the
preceding sentence, in the event that any Subject Shares are for any reason
withdrawn from the Offer or are not purchased pursuant to the Offer, such
Subject Shares shall remain subject to the terms of this Agreement until the
termination hereof. The parties hereby acknowledge and agree that the obligation
of Sub to accept for payment and pay for Shares tendered into the Offer,
including the Subject Shares, is subject to the conditions set forth in Annex A
to the Merger Agreement. The obligations of the Stockholder hereunder are
conditioned on the Merger Agreement not being amended to decrease the Offer
Price or in any manner that materially delays or adversely affects the ability
of the Company, Parent or Sub to consummate the Offer, the Merger or the other
transactions contemplated by the Merger Agreement.
ARTICLE III
VOTING AND PROXY
Section 3.1 Agreement to Vote the Subject Shares. The Stockholder,
in its capacity as such, hereby agrees that during the period commencing on the
date hereof and continuing until the termination of this Agreement (such period,
the "Voting Period"), at any meeting (or any adjournment or postponement
thereof) of the holders of any class or classes of the capital stock of the
Company, however called, or in connection with any written consent of the
holders of any class or classes of the capital stock of the Company, the
Stockholder shall vote (or cause to be voted) the Subject Shares (x) in
favor of the Merger and the approval of the terms of the Merger Agreement and
each of the other transactions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof, (y) against any
action, transaction or agreement that the Stockholder knows would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company or any of its Subsidiaries under the
Merger Agreement or of the Stockholder under this Agreement and (z) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement, including the PHFL Offer and the sale of the Company's equity
interests in PHFT): (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or any
of its Subsidiaries and any Acquisition Proposal; (ii) a sale, lease or transfer
of all or substantially all of the assets of the Company or any of its
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its Subsidiaries (each of the actions in (i) or (ii), a
"Business Combination"); and (iii) (A) any change in the Persons who constitute
the board of directors of the Company; (B) any change in the present
capitalization of the Company or any amendment of the Company's Articles of
Amendment and Restatement or Bylaws; (C) any other material change in the
Company's corporate structure or business; or (D) any other action involving the
Company or any of its Subsidiaries that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Merger and the transactions contemplated by this Agreement or the Merger
Agreement. The Stockholder hereby agrees that the Stockholder shall not, and
shall cause its Affiliates not to, enter into any agreement, letter of intent,
agreement in principle or understanding with any Person that violates or
conflicts with, or could reasonably be expected to violate or conflict with, the
provisions and agreements contained in this Agreement or the Merger Agreement.
Section 3.2 Grant of Proxy. The Stockholder hereby appoints Parent,
Sub and any designee of Parent or Sub, and each of them individually, the
Stockholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the Voting Period with
respect to the Stockholder's Subject Shares in accordance with Section 3.1. This
proxy is given to secure the performance of the duties of the Stockholder under
this Agreement. The Stockholder affirms that this proxy is coupled with an
interest and shall be irrevocable. Each Stockholder shall take such further
action or execute such other instruments as may be necessary to effectuate the
intent of this proxy.
Section 3.3 Nature of Proxy. The proxy and power of attorney
granted pursuant to Section 3.2 by the Stockholder shall be irrevocable during
the term of this Agreement, shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy and shall revoke all prior
proxies granted by the Stockholder. The Stockholder agrees that it will not
grant any proxy to any Person that conflicts with the proxy granted by the
Stockholder pursuant to Section 3.2, and any attempt to do so shall be void and
of no force and effect. The power of attorney granted herein is a durable
power of attorney and shall survive the dissolution, bankruptcy, death or
incapacity of the Stockholder.
ARTICLE IV
PURCHASE OPTION
Section 4.1 Option Grant. The Stockholder hereby severally grants
to each of Parent and Sub an irrevocable option (each such option, a "Stock
Option") to purchase, at any time after the occurrence of a Triggering Event (as
defined below) but prior to the termination of the Stock Option pursuant to
Section 4.5, all but not less than all of the Stockholder's Subject Shares at a
purchase price (the "Exercise Price") per Share equal to the Offer Price. A
Stock Option shall not be exercisable (i) unless all waiting periods under any
Antitrust Laws required for the purchase of such Shares pursuant to such Stock
Option shall have expired or been waived, (ii) if there shall then be in effect
any preliminary injunction or other non-final order issued by any Governmental
Entity prohibiting the exercise of any Stock Option, (iii) unless Parent has
exercised its rights to purchase shares pursuant to the terms of the Other
Tender Agreements as in effect on the date hereof and (iv) unless an Affiliate
of Parent has purchased the ordinary shares of PHFL and the warrants to purchase
ordinary shares of PHFL held by Stockholder pursuant to the PHFL Offer or, in
the event the PHFL Offer has terminated, Parent has irrevocably committed to
offer to purchase such shares and warrants on the terms set forth in the PHFL
Offer as soon as practicable, subject to compliance with applicable laws and the
Articles of Association of PHFL. The Stockholder shall promptly notify Parent
and Sub in writing in the event that it obtains current actual knowledge
(without any duty of inquiry or investigation) of the occurrence of any
Triggering Event, it being understood that the giving of such notice is not a
condition to the right of Parent to exercise the Stock Option.
Section 4.2 Adjustment upon Changes in Capitalization or Merger.
(c) In the event of any change in the outstanding number of Shares by reason of
a stock dividend, stock split, reverse stock split, split-up, merger,
consolidation, recapitalization, combination, conversion, exchange of shares,
extraordinary or liquidating dividend or similar transaction that would affect
Parent's or Sub's rights hereunder, the type and number of shares or securities
purchasable upon the exercise of the Stock Option and the Exercise Price shall
be adjusted appropriately, and proper provision will be made in the agreements
governing such transaction, as shall fully preserve the economic benefits
provided hereunder to Parent and Sub and the full satisfaction of the
Stockholder's obligations hereunder.
(d) Without limiting the foregoing, whenever the number of Shares
purchasable upon exercise of the Stock Option is adjusted as provided in this
Section 4.2, the Exercise Price shall be adjusted by multiplying the Exercise
Price by a fraction, the numerator of which is equal to the number of Subject
Shares purchasable prior to the adjustment and the denominator of which is equal
to the number of Subject Shares purchasable after the adjustment.
(e) Without limiting or altering the parties' rights and
obligations under the Merger Agreement, in the event that the Company enters
into an agreement (i) to consolidate with or merge into any Person, other than
Parent or one of its Subsidiaries, and the Company will not be the continuing or
surviving corporation in such consolidation or merger, (ii) to permit any
Person, other than Parent or one of its Subsidiaries, to consolidate with or
merge into the Company and the Company will be the continuing or surviving
corporation, but in connection with such consolidation or merger, the Shares
outstanding immediately prior to the consummation of such consolidation or
merger will be changed into or exchanged for stock or other securities of the
Company or any other Person or cash or any other property, or the Shares
outstanding immediately prior to the consummation of such consolidation or
merger will, after such consolidation or merger, represent less than 50% of the
outstanding voting securities of the merged company or (iii) to sell or
otherwise transfer all or substantially all of its assets (other than the
Company's equity interest in PHFT) to any Person, other than Parent or one of
its Subsidiaries, then, and in each such case, the Company and, if Stockholder
is a party thereto, Stockholder agrees that the agreement governing such
transaction will make proper provision so that the Stock Option will, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option with identical terms
appropriately adjusted to acquire the number and class of shares or other
securities or property that Parent would have received in respect of Subject
Shares had the Stock Option been exercised immediately prior to such
consolidation, merger, sale or transfer or the record date therefor, as
applicable, and shall make any other necessary adjustments. The Company and the
Stockholder to the extent, if any, that it is able to do so, shall take such
steps in connection with such consolidation, merger, sale or transfer as may be
reasonably necessary to assure that the provisions hereof shall thereafter apply
as nearly as possible to any securities or property thereafter deliverable upon
exercise of the Stock Option.
Section 4.3 Exercise of Option. In the event that a Triggering
Event has occurred, the Stock Option has not terminated and Parent or Sub wishes
to exercise any Stock Option, it shall send a written notice (the "Notice") to
the Stockholder specifying (i) the number of Subject Shares for which the Stock
Option is being exercised (which must constitute all of the Subject Shares held
by Stockholder) and (ii) a date (not less than two (2) Business Days and not
later than ten (10) Business Days after the date of such Notice) for the closing
(the "Option Closing") of the purchase of the Stockholder's Subject Shares. The
Option Closing shall take place at the offices of White & Case LLP, 1155 Avenue
of the Americas, New York, New York. At any Option Closing, Parent or Sub will
deliver to the Stockholder, by wire transfer of immediately available funds to
the account designated by the Stockholder to Parent or Sub prior to the Option
Closing, the Exercise Price payable in respect of the Subject Shares to be
purchased from the Stockholder at the Option Closing, and the Stockholder will
deliver to Parent or Sub such Subject Shares, free and clear of all Liens, with
any and all certificates evidencing such Subject Shares, if any, being duly
endorsed for transfer by the Stockholder and accompanied by all powers of
attorney and/or other instruments reasonably necessary to convey valid and
unencumbered title thereto to Parent or Sub. The Company will pay all
expenses, and any and all United States federal, state and local taxes and other
charges that may be payable in connection with the preparation, issue and
delivery of stock certificates under this Section 4.3 in the name of Parent or
its designee.
Section 4.4 Definitions. (a) "Triggering Event" shall mean any one
of the following:
(i) the Merger Agreement is terminated under Section 8.1 and as a
result of such termination Parent may be entitled to receive
termination fees under Section 9.1(b) of the Merger Agreement
(regardless of whether such fees are then actually payable); or
(ii) Stockholder fails to validly tender and not withdraw the Subject
Shares as required by Section 2.1 hereof regardless of whether the
Offer is consummated or expires.
Section 4.5 Termination of Option. The Stock Option will terminate
upon the earliest of (v) the issuance of any non-appealable permanent injunction
or other final order issued by any Governmental Entity prohibiting the exercise
of the Stock Option, (w) the Effective Time, (x) termination of the Merger
Agreement (I) pursuant to Section 8.1(a) thereof, (II) by the Company pursuant
to Section 8.1(b)(i), Section 8.1(c)(ii) or Section 8.1(c)(iii)(x) thereof,
(III) by the Company pursuant to Section 8.1(b)(ii) or Section 8.1(c)(iii)(y),
other than, in each case, upon or during the continuance of an event which would
become a Triggering Event if the Merger Agreement was terminated or (III) by
Parent, other than upon or during the continuance of a Triggering Event, (y)
seven (7) days following any termination of the Merger Agreement upon or during
the continuance of a Triggering Event (or if, at the expiration of such seven
(7) day period, the Stock Option cannot be exercised by reason of any applicable
judgment, decree, order, law or regulation (other than those judgments and final
orders described in clause (v) above) or by reason of the failure of any waiting
period under any Antitrust Laws applicable to the purchase of the Subject Shares
pursuant to the Stock Option to have expired or been waived provided that Parent
has not unreasonably delayed any filing required by such Antitrust Laws, seven
(7) Business Days after such impediment to exercise has been removed or has
become final and not subject to appeal) and (z) the eighty second (82nd) day
immediately following the commencement of the Offer.
ARTICLE V
COVENANTS
Section 5.1 Generally. The Stockholder agrees that, except for
tendering the Subject Shares in accordance with Section 3.1 and for the granting
of the proxy and power of attorney pursuant to Section 3.2, the Stockholder
shall not and shall cause its Affiliates not to (i) sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other agreement with respect to, or consent to, the sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all
of the Stockholder's Subject Shares, (ii) except with respect to matters not
covered by this Agreement or the Merger Agreement, grant any proxies or powers
of attorney in respect of the Subject Shares, deposit any of the Stockholder's
Subject Shares into a voting trust or enter into a voting agreement with respect
to any of the Stockholder's Subject Shares and (iii) take any action that would
have the effect of preventing or disabling (A) the Stockholder from performing
its obligations under this Agreement or (B) Parent, Sub or their designees from
exercising their rights under Section 3.2.
Section 5.2 No Solicitation of Other Offers. Each Stockholder
shall, and shall take all actions reasonably necessary to cause its Affiliates
and each of its and their respective officers, directors, employees,
representatives, consultants, investment bankers, attorneys, accountants and
other agents (to the extent such agents are acting on the Stockholder's behalf)
immediately to, cease any discussions or negotiations with any other Person or
Persons that may be ongoing with respect to any Acquisition Proposal. No
Stockholder shall take, and shall not authorize or permit its Affiliates and its
and their respective officers, directors, employees, representatives,
consultants, investment bankers, attorneys, accountants or other agents (to the
extent such agents are acting on the Stockholder's behalf) to take, any action
(i) to encourage, solicit, initiate or facilitate, directly or indirectly, the
making or submission of any Acquisition Proposal (including, without limitation,
by taking any action that would make the Rights Agreement inapplicable to an
Acquisition Proposal), (ii) to enter into any agreement, arrangement or
understanding with respect to any Acquisition Proposal, or to agree to approve
or endorse any Acquisition Proposal or enter into any agreement, arrangement or
understanding that would require the Company to abandon, terminate or fail to
consummate the Merger or any other transaction contemplated by this Agreement,
(iii) to initiate or participate in any way in any discussions or negotiations
with, or furnish or disclose any information to, any Person (other than Parent
or Sub) in connection with any Acquisition Proposal, (iv) to facilitate or
further in any other manner any inquiries or the making or submission of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal or (v) to grant any waiver or release under any standstill,
confidentiality or similar agreement entered into by the Company or any of its
Affiliates or representatives regarding or in connection with an Acquisition
Proposal. Without limiting the foregoing, Parent, Sub, the Company and the
Stockholder agree that any violation of the restrictions set forth in this
Section 5.2 by any Person who is an officer, director, employee or wholly owned
subsidiary of Stockholder, or any, representative, consultant, investment
banker, attorney, accountant or other agent of the Stockholder or any of its
wholly owned subsidiaries, (to the extent such Persons are acting on the
Stockholder's behalf) and has been informed by the Stockholder, or otherwise
made aware or had knowledge, of its obligations hereunder shall constitute a
breach by the Stockholder of this Section 5.2; provided, however, that if the
Stockholder is aware that any such Person is in violation of the restrictions
contained in this Section 5.2, the Stockholder shall be in breach of this
Section 5.2 if such agent does not refrain from such action. The Stockholder
shall enforce, to the fullest extent permitted under applicable law, the
provisions of any standstill, confidentiality or similar agreement entered into
by the Stockholder or any of its Affiliates or representatives including, but
not limited to, where necessary, seeking to
obtaining injunctions to prevent any breaches of such agreements and to enforce
specifically the terms and provisions thereof in any court having jurisdiction.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
The Stockholder hereby represents and warrants to Parent and Sub as
follows:
Section 6.1 Due Organization, etc. The Stockholder (if it is a
company or partnership) is duly organized and validly existing under the laws of
the jurisdiction of its incorporation or organization. The Stockholder (i) if it
is a company or partnership, has the requisite power and authority and/or (ii)
if it is an individual, has the capacity, in each case to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by the Stockholder
(if it is a company or partnership) have been duly authorized by all necessary
action on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder and, assuming that this Agreement constitutes a
valid and binding obligation of Parent and Sub, constitutes a valid and binding
obligation of the Stockholder enforceable against the Stockholder in accordance
with its terms, except to the extent that its enforceability may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles.
Section 6.2 Ownership of Shares. The Stockholder owns, of record
and beneficially, the number of Shares set forth on Exhibit A hereto and such
number represents all the Shares beneficially owned by the Stockholder. The
Stockholder has sole voting power and sole power of disposition, in each case
with respect to all of the Shares set forth on Exhibit A hereto, with no
limitations, qualifications or restrictions on such rights, subject only to
applicable securities laws and the terms of this Agreement. Except as set forth
on Exhibit A, the Stockholder does not own, of record or beneficially, any
options, warrants, rights, subscriptions, agreements, proxies, obligations,
convertible or exchangeable securities, or other commitments or claims of any
character, contingent or otherwise, relating to shares of capital stock of the
Company or any of its Subsidiaries.
Section 6.3 No Conflicts. (i) Except for compliance with Antitrust
Laws and applicable securities laws, including the Exchange Act, no filing with
any Governmental Entity, no Permit and no authorization, consent or approval of
any Governmental Entity or other Person is necessary for the execution of this
Agreement by the Stockholder and the consummation by the Stockholder of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by the Stockholder, the consummation by the Stockholder of the
transactions contemplated hereby or compliance by the Stockholder with any of
the provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to the Stockholder, (B) result in, or give
rise to, a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which the Stockholder is a party or by which the
Stockholder or any of the Stockholder's Subject Shares may be bound or (C)
assuming compliance with Antitrust Laws, violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to the
Stockholder, the Subject Shares or any of the Stockholder's other properties or
assets.
Section 6.4 No Finder's Fees. Except as disclosed pursuant to the
Merger Agreement, no broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or, to the Stockholder's knowledge, on
behalf of the Stockholder.
Section 6.5 No Encumbrances. The Stockholder's Subject Shares and
the certificates representing the Stockholder's Subject Shares are now, and at
all times during the term hereof will be, held by the Stockholder, or by a
nominee or custodian for the benefit of the Stockholder, free and clear of all
Liens except for any such encumbrances or proxies arising hereunder. The
transfer by the Stockholder of the Stockholder's Subject Shares to Sub pursuant
to this Agreement shall pass to and unconditionally vest in Sub good and valid
title to all of the Stockholder's Shares, free and clear of all claims, Liens,
restrictions, limitations and encumbrances whatsoever, other than any such
encumbrances created by Sub and any restrictions that may arise by virtue of
state securities laws.
Section 6.6 Reliance by Parent. The Stockholder understands and
acknowledges that Parent is entering into, and causing Sub to enter into, the
Merger Agreement in reliance upon the execution and delivery of this Agreement
by the Stockholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub hereby jointly and severally represent and warrant
to each Stockholder as follows:
Section 7.1 Due Organization, etc. Each of Parent and Sub is a
company duly organized and validly existing under the laws of the jurisdiction
of its incorporation or organization. Each of Parent and Sub has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Parent and Sub have been duly authorized by
all necessary action on the part of Parent and Sub. This Agreement has been duly
executed and delivered by Parent and Sub and, assuming its due authorization,
execution and delivery by each Stockholder constitutes a valid and binding
obligation of each of Parent and Sub, enforceable against each of Parent and Sub
in accordance with its terms, except to the extent that its enforceability may
be subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
Section 7.2 No Conflicts. (i) Except for compliance with Antitrust
Laws, no filing with any Governmental Entity, no Permit and no authorization,
consent or approval of any Governmental Entity or other Person is necessary for
the execution of this Agreement by Parent or Sub and the consummation by Parent
and Sub of the transactions contemplated hereby and (ii) none of the execution
and delivery of this Agreement by Parent or Sub, the consummation by Parent or
Sub of the transactions contemplated hereby or compliance by Parent or Sub with
any of the provisions hereof shall (A) conflict with or result in any breach of
the organizational documents of Parent or Sub, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Parent or Sub is a party or by which Parent or
Sub or any of their respective properties or assets may be bound or (C) assuming
compliance with Antitrust Laws, violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to Parent or Sub or any
of their respective properties or assets.
Section 7.3 Investment Intent. The purchase of the Subject Shares
from the Stockholder pursuant to this Agreement is for the account of Parent or
Sub for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof in violation of any applicable
provisions of the Securities Act.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Stockholder Capacity. No Stockholder executing this
Agreement who is or becomes during the term hereof a director or officer of the
Company makes any agreement or understanding herein in his or her capacity as
such director or officer. Each Stockholder executes this Agreement solely in his
or her capacity as the record holder or beneficial owner (or Affiliate of such
record holder or beneficial owner) of the Stockholder's Subject Shares and
nothing herein shall limit or affect any actions taken by a Stockholder or any
officer, director, partner or Affiliate of the Stockholder in his, her or its
capacity as an officer or director of the Company.
Section 8.2 Publication. Each Stockholder hereby permits Parent and
Sub to publish and disclose in the Offer Documents and, if approval of the
Stockholders of the Company is required under applicable law, in the Proxy
Statement (including all documents and schedules filed with the Commission) its
identity and ownership of Shares
and the nature of its commitments, arrangements, and understandings pursuant to
this Agreement.
Section 8.3 Further Actions. Each of the parties hereto agrees that
it will use its commercially reasonable efforts to do all things reasonably
necessary to convey Subject Shares pursuant to the Stock Option in accordance
with this Agreement.
Section 8.4 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes all prior agreements and understandings, oral and written,
with respect thereto.
Section 8.5 Binding Effect; Benefit; Assignment. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
permitted assigns. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, except by
will or by the laws of descent and distribution, without the prior written
consent of each of the other parties, except that each of Parent and Sub may
assign and transfer its rights and obligations hereunder to any direct or
indirect wholly owned Subsidiary of Parent. Nothing in this Agreement, expressed
or implied, is intended to confer on any Person, other than the parties hereto,
any rights or remedies.
Section 8.6 Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by all of
the relevant parties hereto.
Section 8.7 Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered in
person or mailed, certified or registered mail with postage prepaid, or sent by
facsimile (upon confirmation of receipt), as follows:
(i) If to the Stockholder, at the address set forth on Exhibit A;
with a copy (which shall not constitute notice) to:
Omega Worldwide, Inc.
0000 Xxxxxxx Xxxx., Xxxxx 0
Xxx Xxxxx, Xxxxxxxx 00000
Fax:
Attention: President
and with a copy (which shall not constitute notice) to:
Mayer, Brown, Xxxx & Maw
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
and with a copy (which shall not constitute notice) to:
Xxxxx & Xxx Xxxxx PLLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx III
(ii) If to Parent or Sub, to it at:
Four Seasons Health Care Limited
Xxxxxxx Xxxxx, Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx XX0 0XX
Fax: 000-00-0000-000000
Attention: Xxxxxx Xxxxxx
with a copy (which shall not constitute notice) to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery, except for a notice of a change of address, which shall be effective
only upon receipt thereof.
Section 8.8 Specific Enforcement. The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section 8.9 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such party.
Section 8.10 No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 8.11 Applicable Law. THIS AGREEMENT AND THE LEGAL RELATIONS
BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES
THEREOF. THE COMPETENT STATE OR FEDERAL COURTS LOCATED WITHIN THE STATE OF
DELAWARE WILL HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE 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 ASSERT IN ANY SUCH DISPUTE, TO
THE FULLEST EXTENT PERMITTED BY 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 DELIVERY OR SENDING OF
PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE
MANNER PROVIDED IN SECTION 8.7, 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. EACH OF THE
PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.12 Headings. The descriptive headings of this Agreement
are inserted for convenience only, do not constitute a part of this Agreement
and shall not affect in any way the meaning or interpretation of this Agreement.
Section 8.13 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, and all
of which together shall be deemed to be one and the same instrument.
Section 8.14 Termination. Subject to the last sentence of this
Section 8.14, this Agreement shall terminate, and none of Parent, Sub or any
Stockholder shall have any rights or obligations hereunder and this Agreement
shall become null and void and have no effect upon the earliest to occur of (a)
the Effective Time, (b) termination of the Merger Agreement (I) pursuant to
Section 8.1(a) thereof, (II) by the Company pursuant to Section 8.1(b)(i),
Section 8.1(b)(ii), Section 8.1(c)(ii) or Section 8.1(c)(iii) thereof or (III)
by Parent, in each case in accordance with its terms, (c) the date on which the
Stockholder's Subject Shares are accepted for payment pursuant to the Offer or
purchased pursuant to the Stock Option or (d) the seventy fifth (75th) day
immediately following the commencement of the Offer; provided, however, that no
termination under this Section 8.14 shall relieve any party of liability for
breach of this Agreement. Notwithstanding the foregoing, Article IV of this
Agreement shall survive in accordance with its terms, this Section 8.14 shall
survive until the termination of Article IV of this Agreement and Sections 8.7
through 8.17 shall survive the termination of this Agreement.
Section 8.15 Affiliates. As used in this Agreement, an "Affiliate"
of any Person shall mean any Person directly or indirectly controlling,
controlled by, or under common control with, such Person and, if such Person is
an individual, any member of the immediate family of such Person (including
parents, spouse, children and siblings) of such individual and any trust whose
principal beneficiary or trustee is such individual or one or more members of
such immediate family and any Person who is controlled by any such member or
trust; provided, that, for the purposes of this definition, "control" (including
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities
or partnership interests, by contract or otherwise.
Section 8.16 Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms, provisions, covenants and
restrictions contained in this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable term, provision, covenant or restriction or
any portion thereof had never been contained herein.
Section 8.17 Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in this
Agreement are for convenience of reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
Section 8.18 Expenses. All fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees, costs and expenses.
Section 8.19 Acknowledgement. The Stockholder hereby acknowledges
that, except as set forth in Section 4.10(b) of the Company Disclosure Letter or
on Exhibit A attached hereto, there exists no employment, consulting, severance,
indemnification agreements or deferred compensation agreements between the
Company or any of its Subsidiaries and the Stockholder or any other agreement
that would give the Stockholder the right (whether or not subject to any
condition or contingency and whether currently or in the future) to receive any
payment from the Company or any of its Subsidiaries (including in each case, for
the avoidance of doubt, PHFT and PHFL and its Subsidiaries). For the avoidance
of doubt, nothing in this Section 8.19 shall prohibit the Stockholder who is or
was an officer or director of the Company or any of its Subsidiaries from
claiming, to the extent otherwise lawfully entitled to do so, under any
directors and officers insurance policy of the Company or any of its
Subsidiaries or for indemnification under rights granted by agreement, statute
or other law or regulation.
Section 8.20 Certain Definitions. For purposes of this Agreement,
the term "Other Tender Agreements" shall mean each of the Tender and Option
Agreements, dated as of the date hereof, among the Company, Parent, Sub and each
of Xxxxx X. Xxxxxx, Xx., Ashbourne Consolidated Group Ltd. and Omega Healthcare
Investors, Inc.
* * *
IN WITNESS WHEREOF, Parent, Sub, the Company and the Stockholder
have caused this Agreement to be duly executed as of the day and year first
above written.
FOUR SEASONS HEALTH CARE LIMITED
By
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Name:
Title:
DELTA I ACQUISITION, INC.
By
---------------------------------
Name:
Title:
OMEGA WORLDWIDE, INC.
By
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Name:
Title:
XXXX X. XXXXXXXX
By
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Name:
