EXHIBIT 1.00(a)
STOCKHOLDERS STOCK OPTION AND PROXY AGREEMENT
STOCKHOLDERS STOCK OPTION AND PROXY AGREEMENT, dated as of February 17,
1997, among SUN HEALTHCARE GROUP INC., a Delaware corporation ("PARENT"), and
each other person and entity listed on the signature pages hereof (each, a
"STOCKHOLDER").
WHEREAS, as of the date hereof each Stockholder owns (either beneficially
or of record) the number of shares of common stock, par value $0.0001 per share
("COMPANY COMMON STOCK"), Series AA Redeemable Convertible Preferred Stock ("AA
PREFERRED"), and Series F Convertible Preferred Stock ("F PREFERRED" and,
together with the Company Common Stock and AA Preferred, the "COMPANY CAPITAL
STOCK"), of Retirement Care Associates, Inc., a Colorado corporation (the
"COMPANY"), set forth opposite such Stockholder's name on Exhibit A hereto (all
such shares of Company Capital Stock owned by the Stockholders and any shares of
Company Capital Stock hereafter acquired by the Stockholders prior to the
termination of this Agreement being referred to herein as the "SHARES");
WHEREAS, Parent and the Company propose to enter into an Agreement and Plan
of Merger and Reorganization, dated as of the date hereof (as the same may be
amended from time to time, the "MERGER AGREEMENT"; capitalized terms not
otherwise defined herein being herein with the meanings ascribed thereto in the
Merger Agreement), which provides, upon the terms and subject to the conditions
thereof, for the merger of the Company with and into a subsidiary of Parent (the
"MERGER"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has requested that each Stockholder agree, and, in
order to induce Parent to enter into the Merger Agreement, each Stockholder has
agreed, severally and not jointly, to grant Parent options to purchase such
Stockholder's Shares and proxies to vote such Stockholder's Shares;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
ARTICLE I
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THE OPTIONS
SECTION 1.01. GRANT OF OPTIONS. Each Stockholder hereby grants to Parent
an irrevocable option (each, an "OPTION") to purchase such Stockholder's Shares
at (i) a price per share of Company Common Stock equal to $9.27 (the "COMMON
PURCHASE PRICE"), (ii) a price per share of AA Preferred equal to $10.00 (the
"AA PURCHASE PRICE"), and (iii) a price per share of F Preferred equal to $9.27
(the "F PURCHASE PRICE" and, together with the Common Purchase Price and the AA
Purchase Price, the "PURCHASE PRICE"). Each Option shall expire if (i) such
Option is not exercised prior to the close of business on the 120th day
following termination of the Merger Agreement, (ii) if the Merger Agreement is
terminated pursuant to Section 9.01(c) thereof, or (iii) if the Closing Date
Market Price is less than $12.07.
SECTION 1.02. EXERCISE OF OPTIONS. (a) Provided that (i) to the extent
necessary, any applicable waiting periods (and any extension thereof) under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976 and the rules and
regulations promulgated thereunder (the "HSR ACT") with respect to the exercise
of an Option shall have expired or been terminated and (ii) no preliminary or
permanent injunction or other order, decree or ruling issued by any court or
governmental or regulatory authority, domestic or foreign, of competent
jurisdiction prohibiting the exercise of an Option or the delivery of Shares
shall be in effect, Parent may exercise any or all of the Options at any time
following the earlier of (i) the termination of the Merger Agreement (other than
a termination pursuant to Section 9.01(c) thereof) and (ii) the first occurrence
of a Competing Transaction until the expiration of such Options. In the event
that Parent wishes to exercise an Option, Parent shall give written notice (the
date of such notice being herein called the "NOTICE DATE"), to the Stockholder
who granted such Option specifying a place and date (not later than ten Business
Days (as defined below) and not earlier than three Business Days following the
Notice Date) for closing such purchase (the "CLOSING"). For the purposes of
this Agreement, the term "BUSINESS DAY" shall mean any day on which banks are
not required or authorized by law, regulation or executive order to close in New
York, New York.
(b) If Parent shall exercise any Option in accordance with the terms
of this Agreement, and without additional consideration, the Stockholder who
granted such Option shall execute and deliver further transfers, assignments,
endorsements, consents and other instruments as Parent may reasonably request
for the purpose of effectively carrying out the transactions contemplated by
this Agreement and the Merger Agreement, including the transfer of any and all
of such Stockholder's Shares Parent and the release of any and all liens, claims
and encumbrances covering such Shares.
SECTION 1.03. PAYMENT FOR AND DELIVERY OF CERTIFICATES. At the Closing,
(a) Parent shall pay the aggregate Purchase Price for the Shares being purchased
from each Stockholder by delivery of that number of shares of Parent Common
Stock (the "PARENT SHARES") equal to
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the quotient of the total amount of the Purchase Price and the Closing Date
Market Price (determined as if the Effective Time had occurred on the Notice
Date), (b) each Stockholder whose Shares are being purchased shall deliver to
Parent a certificate or certificates evidencing such Stockholder's Shares, and
such Stockholder agrees that such Shares shall be transferred free and clear of
all liens, and (c) Parent shall deliver to each Stockholder a certificate or
certificates evidencing the Parent Shares to be received by each Stockholder at
the Closing, and Parent agrees that such Parent Shares shall be transferred free
and clear of all liens. All such certificates representing Shares shall be duly
endorsed in blank, or with appropriate stock powers, duly executed in blank,
attached thereto, in proper form for transfer, with the signature of such
Stockholder thereon guaranteed, and with all applicable taxes paid or provided
for.
ARTICLE II
TRANSFER AND VOTING OF SHARES
SECTION 2.01. TRANSFER OF SHARES. During the term of the Options, and
except as otherwise provided herein, each Stockholder shall not (a) sell, pledge
or otherwise dispose of any of its Shares, (b) deposit its Shares into a voting
trust or enter into a voting agreement or arrangement with respect to such
Shares or grant any proxy with respect thereto or (c) enter into any contract,
option or other arrangement or undertaking with respect to the direct or
indirect acquisition or sale, assignment, transfer or other disposition of any
the Company Capital Stock.
SECTION 2.02. VOTING OF SHARES; FURTHER ASSURANCES. (a) Each
Stockholder, by this Agreement, with respect to those Shares that it owns of
record, does hereby constitute and appoint Parent, or any nominee of Parent,
with full power of substitution, during and for the term of the Option
granted by such Stockholder hereunder (or, following termination of the
Merger Agreement, during such periods as the Options are exercisable), as its
true and lawful attorney and proxy, for and in its name, place and stead, to
vote each of such Shares as its proxy, at every annual, special or adjourned
meeting of the stockholders of the Company (including the right to sign its
name (as stockholder) to any consent, certificate or other document relating
to the Company that the law of the State of Colorado may permit or require)
(i) in favor of the adoption of the Merger Agreement and approval of the
Merger and the other transactions contemplated by the Merger Agreement, (ii)
against any proposal for any recapitalization, merger, sale of assets or
other business combination between the Company and any person or entity
(other than the Merger) or any other action or agreement that would result in
a breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement or which could result
in any of the conditions to the Company's obligations under the Merger
Agreement not being
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fulfilled, and (iii) in favor of any other matter relating to consummation of
the transactions contemplated by the Merger Agreement. Each Stockholder further
agrees to cause the Shares owned by it beneficially to be voted in accordance
with the foregoing. Each Stockholder acknowledges receipt and review of a copy
of the Merger Agreement.
(b) Each Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Parent the power to carry out the provisions of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants
to Parent as follows:
SECTION 3.01. DUE ORGANIZATION, ETC. Such Stockholder (if it is a
corporation, partnership or other legal entity) is duly organized and validly
existing under the laws of the jurisdiction of its incorporation or
organization. Such Stockholder has full power and authority (corporate or
otherwise) 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
authorized by all necessary action (corporate or otherwise) on the part of such
Stockholder. This Agreement has been duly executed and delivered by or on
behalf of such Stockholder and, assuming its due authorization, execution and
delivery by Parent, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and subject, as
to enforceability, to the effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION 3.02. NO CONFLICTS; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by such Stockholder do not, and the
performance of this Agreement by such Stockholder will not, (i) conflict with or
violate the Certificate of Incorporation or By-Laws or similar organizational
document of such Stockholder (in the case of a Stockholder that is a
corporation, partnership or other legal entity), (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to such
Stockholder or by which it or any of its properties is bound or affected, or
(iii) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a
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default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of such Stockholder or (if such
Stockholder purports to be a corporation) any of its subsidiaries pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such Stockholder is
a party or by which such Stockholder or any of its properties is bound or
affected, except for any such breaches, defaults or other occurrences that would
not cause or create a material risk of non-performance or delayed performance by
such Stockholder of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of this Agreement by such Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except (i) for applicable requirements, if any, of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder (the "EXCHANGE
ACT"), and the HSR Act and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay the performance by such Stockholder of its
obligations under this Agreement.
SECTION 3.03. TITLE TO SHARES. Such Stockholder is the record or
beneficial owner of its Shares free and clear of any proxy or voting restriction
other than pursuant to this Agreement. At the Closing such Stockholder will
deliver good and valid title to its Shares free and clear of any pledge, lien,
security interest, charge, claim, equity, option, proxy, voting restriction,
right of first refusal or other limitation on disposition or encumbrance of any
kind, other than pursuant to this Agreement. Such Stockholder has full right,
power and authority to sell, transfer and deliver its Shares pursuant to this
Agreement. Upon delivery of such Shares and payment of the Purchase Price
therefor as contemplated herein, Parent will receive good and valid title to
such Shares, free and clear of any pledge, lien, security interest, charge,
claim, equity, option, proxy, voting restriction or encumbrance of any kind.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to each Stockholder as follows:
SECTION 4.01. DUE ORGANIZATION, ETC. Parent is a corporation duly
organized and validly existing under the laws of the State of Delaware. Parent
has all necessary 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 by Parent have been duly authorized by all necessary
corporate action on the part of Parent. This Agreement has been duly executed
and delivered by Parent and, assuming its due authorization, execution and
delivery by each Stockholder, constitutes a legal, valid and binding obligation
of Parent, enforceable against Parent in accordance with its terms.
SECTION 4.02. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by Parent do not, and the performance
of this Agreement by Parent will not, (i) conflict with or violate the
Certificate of Incorporation or By-laws of Parent, (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to Parent or by
which Parent or any of its properties is bound or affected, or (iii) result in
any breach of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the property or assets of Parent
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Parent is
a party or by which it or any of its properties is bound or affected, except for
any such breaches, defaults or other occurrences that would not cause or create
a material risk of non-performance or delayed performance by Parent of its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent do not,
and the performance of this Agreement by Parent will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Exchange Act and the HSR Act and (ii)
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, would not prevent or delay the
performance by Parent of its obligations under this Agreement.
SECTION 4.03. INVESTMENT INTENT. The purchase of Shares from any
Stockholder pursuant to this Agreement is for the account of Parent for the
purpose of investment and not
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with a view to or for sale in connection with any distribution thereof within
the meaning of the Securities Act of 1933, as amended (the "SECURITIES ACT"),
and the rules and regulations promulgated thereunder.
ARTICLE V
REGISTRATION RIGHTS
SECTION 5.01. SHELF REGISTRATION. (a) Parent shall, within three months
following the Closing, file with the Securities and Exchange Commission (the
"COMMISSION") a shelf registration statement on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the Commission (a "SHELF REGISTRATION STATEMENT"), relating to the resale of the
Parent Shares by the Stockholders from time to time in accordance with the
methods of distribution set forth in such Shelf Registration Statement and shall
use its best efforts to cause such Shelf Registration Statement to be declared
effective under the Securities Act as soon as practicable thereafter; PROVIDED,
HOWEVER, that no Stockholder shall be entitled to have the Parent Shares held by
it covered by such Shelf Registration Statement unless such Stockholder is in
compliance with Section 5.02(f) hereof.
(b) Parent shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus forming part
thereof to be usable by the Stockholders until the earliest to occur of the
following: (A) two year anniversary of the Closing; (B) the earliest time at
which all the Parent Shares covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement; and (C) the earliest
time at which, in the written opinion of independent counsel to Parent, all
outstanding Parent Shares held by persons that are not affiliates of Parent may
be resold without registration under the Securities Act pursuant to Rule 144(k)
under the Securities Act or any successor provision thereto (in any such case,
such period being called the "EFFECTIVENESS PERIOD"). Parent shall be deemed
not to have used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if Parent voluntarily takes any action
that would result in Stockholders of Parent Shares covered thereby not being
able to offer and sell any such Parent Shares during that period, unless
(i) such action is required by applicable law, (ii) the continued effectiveness
of the Shelf Registration Statement would require Parent to disclose a material
financing, acquisition or other corporate transaction, and the Board of
Directors shall have determined in good faith that such disclosure is not in the
best interests of Parent and its stockholders, or (iii) the Board of Directors
shall have determined in good faith that there is a valid business purpose for
such suspension.
SECTION 5.02. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
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(a) Parent shall take such action as may be necessary so that (i) any
Shelf Registration Statement and any amendment thereto and any prospectus
forming part thereof and any amendment or supplement thereto (and each report or
other document incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act, and the
respective rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any prospectus forming part of any Shelf Registration Statement, and
any amendment or supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements, in the light of the circumstances under which they were
made, not misleading.
(b) Parent shall advise the Stockholders:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
(ii) upon the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iii) upon the receipt by Parent of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(iv) upon the happening of any event that requires the making of
any changes in the Shelf Registration Statement or the prospectus so that,
as of such date, the Shelf Registration Statement and the prospectus do not
contain an untrue statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made).
(c) Parent shall, during the Effectiveness Period, deliver to each
Stockholder with respect to a Shelf Registration Statement, without charge, as
many copies of the prospectus (including each preliminary prospectus) included
in such Shelf Registration Statement and any amendment or supplement thereto as
such Stockholder may reasonably request; and Parent consents (except during the
continuance of any event described in Section
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5.02(b)(iv)) to the use of the prospectus or any amendment or supplement thereto
by each of the Stockholders in connection with the offering and sale of the
Parent Shares covered by the prospectus or any amendment or supplement thereto
during the Effectiveness Period.
(d) Prior to any offering of Parent Shares pursuant to any Shelf
Registration Statement, Parent shall register or qualify or cooperate with the
Stockholders and their respective counsel in connection with the registration or
qualification of such Parent Shares for offer and sale under the securities or
blue sky laws of such jurisdictions as any such Stockholders reasonably request
in writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Parent Shares covered by
such Shelf Registration Statement; PROVIDED, HOWEVER, that in no event shall
Parent be obligated to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 5.02(d), (ii) file any general consent to service
of process in any jurisdiction where it is not as of the date hereof then so
subject or (iii) subject itself to taxation in any jurisdiction if it is not so
subject.
(e) Upon the occurrence of any event contemplated by Section
5.02(b)(iv) above, Parent shall promptly prepare a post-effective amendment to
any Shelf Registration Statement or an amendment or supplement to the related
prospectus or file any other required document so that, as thereafter delivered
to purchasers of the Parent Shares included therein, the prospectus will not
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If Parent notifies the Stockholders
of the occurrence of any event contemplated by Section 5.02(b)(iv) above, the
Stockholders shall suspend the use of the prospectus until the requisite changes
to the prospectus have been made.
(f) Parent may require each Stockholder with respect to a Shelf
Registration Statement to furnish to Parent such information regarding the
Stockholder and the distribution of Parent Shares held by such Stockholder as
may be required by applicable law or regulation for inclusion in such Shelf
Registration Statement and Parent may exclude from such registration the Parent
Shares of any Stockholder that fails to furnish such information within a
reasonable time after receiving such request.
(g) Parent will use its best efforts to cause the Parent Shares to be
listed on the New York Stock Exchange or other stock exchange or trading system
on which the Parent Common Stock primarily trades on or prior to the effective
date of any Shelf Registration Statement hereunder.
ARTICLE VI
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REPURCHASE OPTION
SECTION 6.01. REPURCHASE OPTION. For a period of 30 days after the
consummation of a Competing Transaction involving the Company (a "REPURCHASE
EVENT"), Parent shall have the right, upon five business days' prior written
notice to the Company (or any successor in interest to the Company by merger,
sale of all or substantially all of the assets, or otherwise) (the "REPURCHASE
NOTICE"), to cause the Company (or any successor in interest to the Company by
merger, sale of all or substantially all of the assets, or otherwise) to have a
closing and to pay at such closing (and the Company and such successor, jointly
and severally, shall be obligated to pay) to Parent in consideration for the
cancellation of all or any portion of the Options, and/or the repurchase from
Parent of all or any portion of the Shares acquired by Parent pursuant to
exercise of Options, as the case may be, an aggregate price (the "REPURCHASE
PRICE") equal to the sum of the following amounts for each class of Company
Capital Stock: (A) the product of (x) the number of Shares of such class as to
which the Option remains exercisable multiplied by (y) the amount by which (i)
the value of the per share consideration paid for such class in the Competing
Transaction exceeds (ii) the Purchase Price for such class and (B) the product
of (x) the number of Shares of such class that Parent owns as a result of
exercise of an Option and (y) the per share consideration paid for such class in
the Competing Transaction. At any closing contemplated by the Repurchase
Notice, the Company (or any successor in interest to the Company by merger, sale
of all or substantially all of the assets, or otherwise) shall pay to Parent the
Repurchase Price by delivering to Parent a certified or bank check payable to or
on the order of Parent in an amount equal to the Repurchase Price.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered, mailed or transmitted, and shall be effective
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier number
specified below:
(a) If to Parent
Sun Healthcare Group Inc.
000 Xxx Xxxx, XX
00
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
(b) If to a Stockholder
c/o Retirement Care Associates, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx
0000 Xxxx Xxxxx
Xxxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxx
Telecopier No.: (000) 000-0000
SECTION 7.02. HEADINGS. 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.
SECTION 7.03. SEVERABILITY. 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 so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
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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 an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 7.04. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
SECTION 7.05. ASSIGNMENT. This,Agreement shall not be assigned by
operation of law or otherwise; PROVIDED, HOWEVER, that Parent may assign its
rights, interests and obligations hereunder to any successor or parent entity of
Parent whose shares are registered under Section 12 of the Exchange Act (or will
be so registered at the Closing).
SECTION 7.06. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 7.07. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 7.08. GOVERNING LAW. EXCEPT TO THE EXTENT THAT COLORADO LAW IS
MANDATORILY APPLICABLE TO THE RIGHTS OF THE STOCKHOLDERS OF THE COMPANY, THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED
ENTIRELY WITHIN THAT STATE. PARENT AND EACH OF THE STOCKHOLDERS EACH HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT
SITTING IN THE CITY OF NEW YORK, NEW YORK COUNTY, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND PARENT AND EACH OF THE
STOCKHOLDERS EACH HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR
SUCH FEDERAL COURT. PARENT AND EACH OF THE STOCKHOLDERS EACH HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
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SECTION 7.09. STOCK CERTIFICATE LEGENDS; STOP TRANSFER ORDERS. In the
event that Parent issues shares of Parent Common Stock to the Stockholders, (i)
all certificates representing such shares and any certificates subsequently
issued with respect thereto or in substitution therefor shall bear an
appropriate legend, and (ii) Parent may cause stop transfer orders to be placed
with its transfer agent with respect to such certificates.
SECTION 7.10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SUN HEALTHCARE GROUP INC.
By:
------------------------------
Name:
Title:
STOCKHOLDERS
------------------------------
Xxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
------------------------------
Xxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxxxx
WINTER HAVEN HOMES, INC.
By:
------------------------------
Name:
Title:
EXHIBIT A
List of Stockholders
--------------------
--------------------------------------------------------------------------------
Number of Shares of Company Capital Stock
Owned Beneficially and of Record
--------------------------------------------------------------------------------
Company Common
Name of Stockholder Stock AA Preferred F Preferred
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx 927,948 0 0
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 1,266,031 0 0
--------------------------------------------------------------------------------
Xxxxxx X. Xxxx 1,933,804 0 0
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 382,392 0 0
--------------------------------------------------------------------------------
Winter Haven Homes, Inc. 491,462 0 0
--------------------------------------------------------------------------------
A-1
