Exhibit J
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AGREEMENT
AGREEMENT, dated as of January 13, 2005 (this "Agreement"), by and
among EGL HOLDING COMPANY, a Delaware corporation ("Parent"), and the several
individuals named on Schedule I hereto (each a "Rollover Investor" and
collectively, the "Rollover Investors" ).
W I T N E S S E T H:
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WHEREAS, on October 17, 2004, Parent, EGL Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Acquisition"), and Select
Medical Corporation, a Delaware corporation ("SEM"), entered into an Agreement
and Plan of Merger (the "Merger Agreement") pursuant to which, upon the terms
and subject to the conditions set forth therein, Acquisition will merge with and
into SEM (the "Merger") with SEM continuing as the surviving corporation;
WHEREAS, on or prior to the closing of the Merger (the "Closing"), the
Certificate of Incorporation of Parent will be amended and restated in
substantially the form of Exhibit A hereto (the "Restated Parent Charter"), and
pursuant to the Restated Parent Charter, the authorized capital stock of Parent
will consist of (i) Participating Preferred Stock, par value $0.001 per share
("Parent Preferred Stock"), and (ii) Common Stock, par value $0.001 per share
("Parent Common Stock");
WHEREAS, each Rollover Investor is the beneficial owner of at least the
number of shares of Common Stock, par value $.01 per share, of SEM ("SEM Common
Stock"), set forth opposite such Rollover Investor's name on Schedule I hereto
under the heading "Rollover Shares" (the "Rollover Shares"); and
WHEREAS, each of the Rollover Investors, acting severally and not
jointly, is willing to contribute such Rollover Investor's Rollover Shares to
Parent in exchange for newly issued shares of Parent Preferred Stock and Parent
Common Stock (the "New Parent Shares"), upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
AGREEMENTS
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SECTION 1.01. Rollover. Prior to the Closing, each Rollover Investor
will enter into a stock subscription and exchange agreement with Parent, Welsh,
Carson, Xxxxxxxx & Xxxxx IX, L.P. and other equity investors selected by Parent,
in substantially the form set forth in Exhibit B hereto (the "Stock Subscription
Agreement"), and will contribute such Rollover Investor's Rollover Shares to
Parent in exchange for New Parent Shares on the terms and conditions set forth
in the Stock Subscription Agreement (each such Rollover Investor to be a
Schedule III Purchaser (as defined in the Stock Subscription Agreement)
thereunder). For purposes of each such exchange of shares of SEM Common Stock
for New Parent Shares, the
value of the shares of SEM Common Stock contributed by each Rollover Investor to
Parent shall be $18.00 per share (i.e., an amount equal to the consideration per
share of SEM Common Stock payable in the Merger).
SECTION 1.02. Stockholders Agreement and Registration Rights Agreement.
As contemplated by the Stock Subscription Agreement, prior to the Closing Date,
each Rollover Investor will enter into a stockholders agreement, in
substantially the form set forth in Exhibit C hereto, and a registration rights
agreement, in substantially the form set forth in Exhibit D hereto, in each case
with Parent, Welsh, Carson, Xxxxxxxx & Xxxxx IX, L.P. and other equity investors
selected by Parent.
SECTION 1.03. Employment Agreements and Acknowledgements.
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(a) At or prior to the Closing, Xxxxxxx X. Xxxxx also agrees to enter
into an amended employment agreement, which amends the terms of such Rollover
Investor's existing employment agreement and any other change of control,
severance or similar agreement with SEM (each, an "Existing Employment
Agreement") to reflect the acknowledgments and agreements set forth in clauses
(i) and (ii) of Section 1.03(b) below and such other changes as are reasonably
acceptable to such Rollover Investor and Parent.
(b) Such Rollover Investor acknowledges and agrees (i) that the Merger
and other transactions contemplated by the Merger Agreement will not be treated
as a "Change of Control" under the relevant provisions of any Existing
Employment Agreement with such Rollover Investor, and (ii) to forgo any change
of control or similar payments such Rollover Investor would be entitled to
receive under such provisions, if the Merger or other transactions contemplated
by the Merger Agreement or this Agreement would have been treated as such a
"Change of Control" (including any gross-up or payments for, or to reimburse
such Rollover Investor for, excise taxes resulting from such payments or other
benefits provided under such an Existing Employment Agreement or otherwise in
connection with the Merger and other transactions contemplated by the Merger
Agreement or this Agreement). For the avoidance of doubt, it is understood that
such provisions shall remain in effect with respect to any future Change of
Control as defined therein.
SECTION 1.04. Restrictions on Transfers. Each Rollover Investor agrees
that, without the prior written consent of Parent, it will not make any
transfer, sale, assignment, pledge, hypothecation or other disposition
(including by operation of law), whether directly or indirectly pursuant to the
creation of a derivative security, the grant of an option or other right or the
imposition of a restriction on disposition or voting (in each case, a
"Transfer"), of any of its Rollover Shares.
ARTICLE II.
REPRESENTATION AND WARRANTIES
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SECTION 2.01. Parent Representations. Parent represents and warrants to
each Rollover Investor that:
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(a) Existence. Parent is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware.
(b) Authorization; Power; Validity. The execution and delivery by
Parent of this Agreement and the consummation of the transactions contemplated
hereby are within Parent's powers and have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by Parent.
This Agreement constitutes a valid and binding agreement of Parent, enforceable
against Parent in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
SECTION 2.02. Rollover Investor Representations. Each Rollover
Investor, severally and not jointly, and solely with respect to such Rollover
Investor, represents and warrants to Parent that:
(a) Existence. Such Rollover Investor (if not a natural person) is a
corporation, limited partnership, limited liability company, government pension
plan or other entity, as the case may be, duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization.
(b) Authorization; Power; Validity. The execution and delivery by such
Rollover Investor (if not a natural person) of this Agreement and the
consummation of the transactions contemplated hereby are within such Rollover
Investor's powers and have been duly authorized by all necessary action on the
part of such Rollover Investor. This Agreement has been duly executed and
delivered by such Rollover Investor. This Agreement constitutes a valid and
binding agreement of such Rollover Investor, enforceable against such Rollover
Investor in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
(c) Title to Rollover Shares. Such Rollover Investor has good and valid
title to the Rollover Shares to be contributed to Parent pursuant to Section
1.01, free and clear of all claims, liens and encumbrances.
ARTICLE III.
MISCELLANEOUS
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SECTION 3.01. Condition Precedent. For purposes of Section 203 of the
Delaware General Corporation Law, this Agreement, including the Exhibits hereto,
and the respective obligations of each of the parties hereto is subject to the
approval of the Board of Directors of SEM, upon the recommendation of the
Special Committee (as defined in the Merger Agreement), and upon such approval
this Agreement shall thereafter be binding on the parties.
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SECTION 3.02. Termination. This Agreement shall be terminated, and the
transactions contemplated hereby abandoned at any time prior to the consummation
of the Merger, upon the Merger Agreement being terminated in accordance with its
terms. If this Agreement is terminated as permitted by this Section 3.02, such
termination shall be without liability of any party (or any stockholder,
subsidiary, general partner, limited partner, member, director, officer,
trustee, employee, agent, consultant or representative of such party) to any of
the other parties to this Agreement and this Agreement shall become void and of
no further force or effect.
SECTION 3.03. Notices. Any notice or communication required or
permitted hereunder shall be in writing and shall be delivered personally,
delivered by nationally recognized overnight courier service for next day
delivery, sent by certified or registered mail, postage prepaid, or sent by
facsimile (subject to electronic confirmation of such facsimile transmission).
Any such notice or communication shall be deemed to have been given (i) when
delivered, if personally delivered, (ii) one business day after it is deposited
with a nationally recognized overnight courier service, if sent by nationally
recognized overnight courier service, (iii) the day of sending, if sent by
facsimile prior to 5:00 p.m. (EST) on any business day or the next succeeding
business day if sent by facsimile after 5:00 p.m. (EST) on any business day or
on any day other than a business day or (iv) five business days after the date
of mailing, if mailed by certified or registered mail, postage prepaid, in each
case, to the following address or facsimile number, or to such other addressee,
address or facsimile number as such party may subsequently designate to the
other parties by notice given hereunder:
if to Parent, to it at:
EGL Holding Company
c/o Welsh, Carson, Xxxxxxxx & Xxxxx IX, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
and with an additional copy to:
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
if to any Rollover Investor, to such Rollover Investor at the address
set forth for such Rollover Investor on Schedule I hereto.
SECTION 3.04. Amendments and Waivers. Any provision of this Agreement
(or any Schedule or Exhibit to this Agreement) may be amended or waived if, but
only if, such amendment or waiver is in writing and, in the case of an
amendment, signed by (i) Parent and (ii) a majority-in-interest of the Rollover
Investors (determined by reference to the number of
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Rollover Shares to be contributed to Parent hereunder) or, in the case of a
waiver, signed by the party against whom the waiver is to be effective.
Notwithstanding the foregoing, Schedule I hereto can be amended by a written
instrument signed only by Parent and each Rollover Investor affected thereby and
the Exhibits to this Agreement can be amended by a written instrument signed
only by Parent so long as such amendment treats all Schedule I Purchasers,
Schedule II Purchasers, Schedule III Purchasers and Schedule IV Purchasers
(each, as defined in the Subscription Agreement) equally or does not adversely
affect any of Schedule III Purchasers (as defined in the Stock Subscription
Agreement). No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
SECTION 3.05. Expenses. Except as may otherwise be agreed in writing by
Parent, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
cost or expense.
SECTION 3.06. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. No party hereto shall assign this
Agreement or any of its rights, interests or obligations hereunder without the
prior written consent of Parent and any purported assignment without such
consent shall be invalid and of no effect.
SECTION 3.07. Governing Law. This Agreement, and all claims arising
hereunder or relating hereto, shall be governed and construed and enforced in
accordance with the laws of the State of New York without giving effect to its
conflicts of laws principles.
SECTION 3.08. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby or thereby may only be brought in the United States District
Court for the Southern District of New York or any New York State court sitting
in New York County, New York, and each of the parties hereby consents to the
exclusive jurisdiction of such courts in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
which is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, and each party agrees that, in addition to any method of
service of process otherwise permitted by law, service of process on each party
may be made by any method for giving such party notice as provided in Section
3.03, and shall be deemed effective service of process on such party.
SECTION 3.09. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
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SECTION 3.10. Specific Performance. The parties hereto acknowledge and
agree that any breach or threatened breach of the terms of this Agreement would
give rise to irreparable harm for which money damages would not be an adequate
remedy and accordingly the parties agree that, in addition to any other
remedies, each party shall be entitled to enforce the terms of this Agreement by
a decree of specific performance without the necessity of proving the inadequacy
of money damages as a remedy.
SECTION 3.11. Entire Agreement. This Agreement, including the Schedules
and Exhibits hereto, constitutes the entire agreement, arrangement and
understanding of the parties hereto with respect to the subject matter hereof,
including without limitation all arrangements among the parties relating to the
shares of SEM Common Stock held by each Rollover Investor, and there are no
other agreements, arrangements or understandings among the parties hereto with
respect to the subject matter hereof.
SECTION 3.12. Counterparts; Third Party Beneficiaries. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. No provision of this Agreement shall confer upon any person
other than the parties hereto any rights or remedies hereunder.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Agreement as of the day and year first above written.
PARENT: EGL HOLDING COMPANY
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
ROLLOVER INVESTORS:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
e /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
XXXXXX X. XXXXXXXX
DESCENDANTS TRUST
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Trustee
XXXXXXXX FAMILY FOUNDATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Trustee
