Exhibit 10.35
RESTRICTION AGREEMENT
This Agreement, dated as of July 1, 2002, is entered into by VistaCare,
Inc., a Delaware corporation (the "Company"), the Xxxxx and Xxxxx Xxxxx Family
Trust (the "Trust") and B&J Xxxxx Associates, Limited Partnership, an Arizona
limited partnership (the "Partnership").
WHEREAS, Xxxxx X. Xxxxx ("Xxxxx") proposes to transfer [5,023,750] shares
(the "Shares") of VistaCare, Inc. Class A Common Stock, $.01 par value per
share, to the Trust;
WHEREAS, the Trust in turn intends to transfer a portion of the Shares to
the Partnership (such transfer (the "Partnership Transfer") and the proposed
transfer of Shares from Xxxxx to the Trust are herein referred to collectively
as the "Transfers");
WHEREAS, Xxxxx is party to an Amended and Restated Stockholder Rights
Agreement, dated as of August 29, 1997, by and among Vista HospiCare, Inc., a
Delaware corporation ("VHC"), and certain stockholders of VHC (the "Stockholder
Rights Agreement");
WHEREAS, the Stockholder Rights Agreement as amended and currently in
effect (the "Amended Stockholder Rights Agreement") represents an agreement by
and among the Company and certain stockholders of the Company;
WHEREAS, the execution and delivery of this Agreement by the Trust and the
Partnership is a condition to the waiver by the Company and certain other
parties to the Amended Stockholder Rights Agreement of the restrictions on
Xxxxx'x right to effect the Transfers;
NOW, THEREFORE, the parties agree as follows:
1. Joinder to the Agreement. The Trust and the Partnership hereby agree to
be bound by the Amended Stockholder Rights Agreement as a "Stockholder" (as
defined therein).
2. Additional Transfer Restrictions. In addition to the restrictions
applicable to them as a result of becoming a party
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to the Amended Stockholder Rights Agreement pursuant to Section 1, neither the
Trust nor the Partnership will sell, transfer or otherwise dispose of any of the
Shares, or any interest therein, prior to the termination of this Agreement,
other than pursuant to Section 3.
3. Permitted Transfers.
The following transfers shall be exempt from the provisions of Section 2:
(i) any transfer pursuant to an effective registration statement under
the Securities Act of 1933, as amended;
(ii) any transfer in connection with the sale of all or substantially all
of the outstanding shares of capital stock of the Company (including
pursuant to a merger or consolidation);
(iii) any transfer to the Company; and
(iv) any transfer of Shares which when combined with all prior transfers
of Shares by the Trust or Partnership (excluding the Partnership
Transfer) represents less than 40% of the total number of Shares.
4. Termination. The Agreement shall terminate upon the earlier of: (i)
eighteen months after the Company's first underwritten public offering of its
capital stock and (ii) the first date on which FFC Capital Partners I, L.P. and
FFC Executive Partners, I, L.P. together hold capital stock of the Company
representing less than ten percent (10%) of the voting power of the Company.
5. Specific Performance. In addition to any and all other remedies that may
be available at law in the event of any breach of this Agreement, the Company
shall be entitled to specific performance of the agreements and obligations of
the Trust and the Partnership hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
6. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
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7. Notices. All notices, requests, demands and other communications hereunder
must be in writing and shall be delivered in person, mailed by prepaid certified
or registered mail, return receipt requested, or sent by facsimile transmission,
addressed as follows:
(a) if to the Company: VistaCare, Inc.
0000 X. Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
(b) if to the Trust
or the Partnership: c/o Xxxxx X. Xxxxx
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx Xxxxxx, XX 00000
Telecopier: (000) 000-0000
or to such other address as shall have been furnished in writing to the other
parties hereto in accordance with the provisions of this Section 7.
8. Complete Agreement; Amendment and Waiver. This Agreement constitutes the
full and complete agreement of the parties hereto with respect to the subject
matter hereof. No amendment, modification or termination of any provision of
this Agreement shall be valid unless in writing and signed by all parties
hereto.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one agreement binding on all the
parties hereto.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
VISTACARE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: President & CEO
XXXXX AND XXXXX XXXXX FAMILY TRUST
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
, Trustee
B&J XXXXX ASSOCIATES, LIMITED PARTNERSHIP
By: B&J Investments, Inc. ,
-----------------------------------------
the general partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Title: President
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