STOCK OPTION AGREEMENT
PURSUANT TO THE
HARBORSIDE HEALTHCARE CORPORATION
STOCK INCENTIVE PLAN
THIS STOCK OPTION AGREEMENT (this "Agreement") is made as of November
19, 2001 (the "Effective Date"), between Harborside Healthcare Corporation, a
Delaware corporation (the "Company"), and _______________ (the "Optionee" or the
"Executive").
R E C I T A L S
A. The Company has adopted the Harborside Healthcare Corporation
Stock Incentive Plan (the "Plan"), a
copy of which has been delivered to Optionee.
B. The Company desires to grant the Optionee the opportunity to
acquire a proprietary interest in the Company to encourage the
Optionee's contribution to the success and progress of the
Company.
C. In accordance with the Plan, the Committee (as defined in the
Plan) has as of the Effective Date granted to the Optionee a
non-qualified option to purchase shares of Class C Stock,
$0.01 par value, of the Company (the "Class C Stock") subject
to the terms and conditions of the Plan and this Agreement.
AGREEMENTS
1. Definitions. Capitalized terms used herein shall have the
following meanings:
"Act" is defined in Section 10(a).
"Agreement" means this Stock Option Agreement.
"Approved Sale" means the transfer or sale by Investcorp Bank
E.C., any affiliate thereof or any Person with whom
Investcorp Bank E.C. or any affiliate thereof has an
administrative relationship with respect to the outstanding
capital stock of the Company (collectively, "Investcorp"), in
the aggregate, in one or a series of related transactions, of
fifty percent (50%) or more of the outstanding capital stock
of the Company held by Investcorp immediately prior to such
transactions (excluding any transfers among such entities) in
exchange for cash, cash equivalents, securities that are
listed for trading on a national securities exchange or
quoted on the NASDAQ National Market System, or a combination
thereof; provided, however, that any such transaction or
series of related transactions which results in Investcorp
holding securities representing more than twenty percent
(20%) of the outstanding shares of the subject company shall
not be an Approved Sale unless fifty percent (50%) or more of
the consideration paid in such transaction(s) consists of
cash or cash equivalents, or unless, within six months
following consummation of such transaction(s), Investcorp
transfers or sells, in one of a series of related
transactions, fifty percent (50%) or more of the securities
of the subject company received by Investcorp in such
transaction(s); provided, further, that in the case of
consummation of a business combination that would otherwise
constitute an Approved Sale except that Investcorp receives
securities of a corporation that represent more than 20% of
the outstanding shares of the subject company, the Optionee
shall be entitled to the vesting described herein if the
Optionee's employment with the Company is terminated by the
Company other than for Cause or by the Executive for Good
Reason, in either case within one year following consummation
of such business combination, or prior to consummation of
such business combination if it is reasonably demonstrated by
the Optionee that such termination or Good Reason (1) was at
the request of the merger partner in the business combination
or (2) otherwise arose in connection with or anticipation of
the business combination.
"Cause," when used in connection with the termination of
employment of the Optionee, has the meaning set forth in the
employment agreement between the Company and the Optionee, or
if there is no such employment agreement, means (a)
conviction of the Optionee for a felony, or the entry by the
Optionee of a plea of guilty or nolo contendere to a felony,
(b) the commission of an act of fraud involving dishonesty
for personal gain which is injurious to the Company, (c) the
willful and continued refusal by the Optionee to
substantially perform his duties with the Company (other than
any such refusal resulting from his incapacity due to mental
illness or physical illness or injury), after a demand for
substantial performance is delivered to the Optionee by the
Company's Board of Directors, where such demand identifies
the manner in which the Company's Board of Directors believes
that the Optionee has refused to substantially perform his
duties and the passage of a reasonable period of time as
specified by the Board for the Optionee to comply with such
demand or (d) the willful engaging by the Optionee in gross
misconduct injurious to the Company or its Subsidiaries.
"Certificate of Incorporation" means the Restated Certificate
of Incorporation of the Company setting forth the rights,
preferences and privileges of and restrictions on the Class C
Stock.
"Class C Stock" is defined in recital C.
"Company" is defined in the preamble.
"Disability" has the meaning set forth in the employment
agreement between the Company and the Optionee, or if there
is no such employment agreement, means the failure by the
Optionee to render full-time employment services to the
Company for an aggregate of ninety (90) business days in any
continuous period of six (6) months on account of physical or
mental disability.
"Effective Date" is defined in the preamble.
"Endorsed Certificate" is defined in Section 9(a).
"Executive" is defined in the preamble.
"Exercise Price" is defined in Section 2.
"Fair Market Value" means the value of a Share, as of the
Termination Date or other date of determination, calculated
pursuant to Section 9(e).
"Good Reason" means, unless the Optionee shall have consented
in writing thereto, any of the following:
(a) except as specifically provided in the Optionee's
employment agreement, if any, the assignment to the Optionee
of duties, or the assignment of the Optionee to a position,
constituting a material diminution in the Optionee's role,
responsibilities or authority compared with his role,
responsibilities or authority on the Effective Date;
(b) a reduction by the Company in the Optionee's base salary
as in effect on the Effective Date as the same may be
increased from time to time or a reduction of the potential
annual bonus expressed as a percent of base salary (subject
to attainment of goals, Board discretion and other conditions
of the applicable bonus program) from the levels in effect on
the Effective Date as the same may be increased from time to
time;
(c) a demand by the Company to the Optionee to relocate to
any place that exceeds a fifty (50) mile radius beyond the
location at which the Optionee performed his duties on the
Effective Date; or
(d) any material breach of this Agreement or any breach of
the employment agreement between the Optionee and the
Company, if any, on the part of the Company.
In the event that any change in the Optionee's duties,
position, role, responsibilities or authority is implemented
or proposed to be implemented by the Company during the term
of this Agreement, then: (i) unless the Optionee provides
written notice to the Company and Chief Executive Officer of
the Company within thirty (30) days of being notified of such
change or proposed change that the Optionee asserts that such
change constitutes a "material diminution," such change shall
be deemed not to be such a "material diminution" and
thereafter the Optionee's duties, position, role,
responsibilities and authority shall be as so changed; and
(ii) in the event that the Optionee provides such notice in a
timely manner and, within thirty (30) days thereafter, the
Company, in its sole discretion, rescinds or alters such
change, then the original change shall be disregarded (except
to the extent so altered). The thirty-day period for the
Optionee to notify the Company of his assertion that any
change or proposed change is a "material diminution"
hereunder shall commence only upon receipt by the Optionee of
written notice of such change or proposed change from the
Company.
"HBRS" is defined in Section 9(b).
"Initial Public Offering" means the sale of any of the common
stock of the Company pursuant to a registration statement
that has been declared effective under the Act, if as a
result of such sale (i) the issuer becomes a reporting
company under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, and (ii) such stock is
traded on the New York Stock Exchange or the American Stock
Exchange, or is quoted on the NASDAQ National Market System
or is traded or quoted on any other national stock exchange
or national securities system.
"Investors" means those entities set forth on Schedule 1 of
the Recapitalization Agreement.
"Option" is defined in Section 2.
"Option Shares" is defined in Section 2.
"Optionee" is defined in the preamble.
"Plan" is defined in recital A.
"Put Date" is defined in Section 9(b).
"Recapitalization Agreement" means the Recapitalization
Agreement dated as of April 15, 1998, by and between the
Company and the Investors.
"Repurchase" is defined in Section 9(a).
"Retirement" has the meaning set forth in the employment
agreement between the Company and the Optionee, or if there
is no such employment agreement, means the Optionee's
retirement from employment with the Company in accordance
with the Company's normal retirement policy generally
applicable to its salaried employees.
"Subsidiary" means any joint venture, corporation,
partnership or other entity as to which the Company, whether
directly or indirectly, has more than 50% of the (i) voting
rights or (ii) rights to capital or profits.
"Termination Date" means the date on which the Optionee
ceases to be employed by the Company for any reason.
2. Grant of Option. The Company grants to the Optionee the
right and option (the "Option") to purchase, on the terms and
conditions hereinafter set forth, all or any part of the
number of shares of Class C Stock set forth below the
Optionee's signature below (the "Option Shares"), at the
purchase price of $1.25 per share (the "Exercise Price"), on
the terms and conditions set forth herein.
3. Exercisability.
(a) The Optionee's right to exercise the Option shall vest to
the extent of one-fourth (1/4) of the number of Option Shares
on December 31, 2001, one-fourth (1/4) of the number of
Option Shares on December 31, 2002, one-fourth (1/4) of the
number of Option Shares on December 31, 2003, and one-fourth
(1/4) of the number of Option Shares on December 31, 2004,
provided, that the Optionee shall have been in continuous
employment by the Company from the Effective Date to, and
including, each such date. No option may be exercised for
fractional shares of Class C Stock.
(b) Notwithstanding Section 3(a), (i) if the Optionee's
employment is terminated by the Company without Cause or the
Optionee resigns with Good Reason, the Option shall become
exercisable with respect to the number the Option Shares
equal to (A) the total number of Option Shares that would
have vested at the end of the year in which such termination
occurs multiplied by (B) a fraction, the numerator of which
equal the number of days which have elapsed in such year
(through the Termination Date) and the denominator of which
is 365; and (ii) upon the occurrence of an Approved Sale, the
schedule set forth in Section 3(a) shall not apply and the
Optionee's right to exercise the Option shall vest to the
extent of one-hundred percent (100%) of the number of Option
Shares, provided that the Optionee remains continuously
employed by the Company through consummation of such Approved
Sale.
4. Expiration.
(a) Subject to Sections 4(b) and 6(a), any nonexercised
Option shall expire upon the thirtieth (30th) day following
the seventh (7th) anniversary of the Effective Date (the
"Expiration Date"), provided, however, that if it would
result in the expiration of the Option prior to the
Expiration Date, if (i) at any time prior to an Approved Sale
the Optionee resigns without Good Reason, the exercisable
portion of any option shall expire thirty (30) days following
the Termination Date, or (ii) the Optionee is terminated for
Cause from employment by the Company, the exercisable portion
of any Option shall expire on the Termination Date, or (iii)
the Optionee resigns with Good Reason or is terminated
without Cause from employment with the Company, the
exercisable portion of any Option shall expire one-hundred
eighty (180) days following the Termination Date, or (iv) the
Optionee dies or is terminated due to disability, the
exercisable portion of any Option shall expire one-year
following the Termination Date, or (v) the Optionee is
terminated other than for Cause from employment by the
Company and the Company exercises the repurchase right
pursuant to Section 9 hereof, or the Optionee or his or her
representative exercises the put right pursuant to Section 9
hereof, the exercisable portion of any Option shall expire on
the business day immediately preceding the Repurchase Date,
the Put Date, or the date on which the Company acquires any
Option Shares pursuant to Section 9(d) hereof, as the case
may be.
(b) The unexercisable portion of the Option shall expire on
the Termination Date.
5. Nontransferability. Subject to Section 9 hereof, the Option shall
not be transferable by the Optionee except to (a) his or her
spouse, child, estate, personal representative, heir or successor
(b) a trust for the benefit of the Optionee or his or her spouse,
child or heir, or (c) a partnership, the partners of which
consist solely of the Optionee and/or his or her spouse, child,
heir, and/or successor (each, a "permitted transferee") and the
Option is exercisable, during the Optionee's lifetime, only by
him or her or his or her spouse or child, or, in the event of the
Optionee's Disability, his or her guardian or legal
representative. More particularly (but without limiting the
generality of the foregoing), the Option may not be assigned,
transferred (except as aforesaid), pledged or hypothecated in any
way (whether by operation of law or otherwise), and shall not be
subject to execution, attachment or similar process. Any
assignment, transfer, pledge, hypothecation or other disposition
of the Option contrary to the provisions hereof, and the levy of
any attachment or similar process upon the Option that would
otherwise effect a change in the ownership of the Option, shall
terminate the Option; provided, however, that in the case of the
involuntary levy of any attachment or similar involuntary process
upon the Option, the Optionee shall have thirty (30) days after
notice thereof to cure such levy or process before the Option
terminates. This Agreement shall be binding on and enforceable
against any person who is a permitted transferee of the Option
pursuant to the first sentence of this Section.
6. Effect of Approved Sale; Adjustments.
(a) In the event of an Approved Sale, the unexercised portion
of the Option shall terminate upon such Approved Sale,
provided that, unless the agreement or plan of merger
effecting such Approved Sale provides that the Optionee shall
receive upon such Approved Sale, with respect to the entire
exercisable but unexercised portion of the Option, the same
consideration that the holders of the Class C Stock shall be
entitled to receive upon such Approved Sale (less the
Exercise Price attributable to such exercisable but
unexercised portion and any taxes withheld pursuant to
Section 16 hereof), the Optionee shall be given at least
thirty (30) days' prior notice of the proposed Approved Sale
and shall be entitled to exercise such exercisable but
unexercised portion of the Option at any time during such
thirty (30) day period up to and until the close of business
on the day immediately preceding the date of consummation of
such Approved Sale and, upon exercise of the Option, the
Option Shares shall be treated in the same manner as the
shares of any other holder of Class C Stock.
(b) Subject to Section 6(a), if shares of the Class C Stock,
or to the extent it affects the economic rights of the
holders of the Class C Stock, shares of Class A stock, Class
B stock or Class D stock of the Company, are changed into or
exchanged for a different number or kind of shares or
securities, as the result of any one or more reorganizations,
recapitalizations, mergers, acquisitions, stock splits,
reverse stock splits, stock dividends or similar events, an
appropriate adjustment shall be made in the number and kind
of shares or other securities subject to the Option, and the
price for each share or other unit of any securities subject
to this Agreement, in accordance with Section 13 of the Plan.
No fractional interests shall be issued on account of any
such adjustment unless the Committee specifically determines
to the contrary; provided, however, that in lieu of
fractional interests, the Optionee, upon the exercise of the
Option in whole or part, shall receive cash in an amount
equal to the amount by which the fair market value of such
fractional interests exceeds the Exercise Price attributable
to such fractional interests.
7. Exercise of the Option. Prior to the expiration thereof, the
Optionee may exercise the exercisable portion of the Option from
time to time in whole or in part. Upon electing to exercise the
Option, the Optionee shall deliver to the Secretary of the
Company a written and signed notice of such election setting
forth the number of Option Shares the Optionee has elected to
purchase, together with cash or a cashier's or certified bank
check to the order of the Company for the full Exercise Price of
such Option Shares and any amount required pursuant to Section 17
hereof. Alternatively, if the Company is not at the time
prohibited from purchasing or acquiring shares of its capital
stock, the Exercise Price may be paid in whole or in part by
delivery of shares of the Class C Stock owned by the Optionee
provided that Optionee has owned such shares for at least six (6)
months. The value of any such shares delivered or withheld as
payment of the Exercise Price shall be such shares' fair market
value as determined by the Committee. The Committee may, in its
discretion, permit payment of the Exercise Price in such other
form or in such other manner as may be permissible under the Plan
and under any applicable law.
8. Restrictions on Transfers of Shares Issuable Upon Exercise.
Subject to Section 9 hereof, prior to the earlier of (A) 180 days
following an Initial Public Offering or (B) an Approved Sale, the
Option Shares shall not be transferable or transferred, assigned,
pledged or hypothecated in any way (whether by operation of law
or otherwise) except that the Optionee may transfer the Option
Shares (i) to a permitted transferee, as defined in Section 5 of
this Agreement, or (ii) as provided for in the Certificate of
Incorporation. This Agreement shall be binding on and enforceable
against any person who is a permitted transferee of the Option
Shares except a person who acquires the Option Shares pursuant to
(y) Section 4 of Article IV of the Certificate of Incorporation
or (z) as part of the Initial Public Offering. The stock
certificates issued to evidence Option Shares upon exercise of
the Option hereunder shall bear a legend referring to this
Agreement and the restrictions contained herein.
9. Repurchase of Option Shares.
(a) In the event that the Optionee ceases to be employed by
the Company for any reason prior to an Approved Sale, the
Company, during the sixty (60) days following the Termination
Date (the "Repurchase Period"), shall have a one-time right
to purchase all, but not less than all, of the Option Shares.
The purchase price for each Option Share shall equal Fair
Market Value, or, if the Optionee is terminated for Cause,
the lower of Fair Market Value or the Exercise Price. If the
Company elects to purchase the Option Shares, it shall notify
the Optionee at or before the end of the Repurchase Period of
such election and the purchase price shall be paid in cash at
a time set by the Company (the "Repurchase Date") within
thirty (30) days after the end of the Repurchase Period,
provided that the Optionee has presented to the Company a
stock certificate evidencing the Option Shares duly endorsed
for transfer (the "Endorsed Certificate"). If the Optionee
fails to deliver the Endorsed Certificate, the Option Shares
represented thereby shall be deemed to have been purchased
upon (i) the payment by the Company of the purchase price to
the Optionee or his or her permitted transferee or (ii)
notice to the Optionee or such permitted transferee that the
Company is holding the purchase price for the account of the
Optionee or such permitted transferee, and upon such payment
or notice the Optionee and such permitted transferee will
have no further rights in or to such Option Shares. If the
Company does not purchase the Option Shares, the restrictions
on transfer thereof contained in Sections 5 and 8 of this
Agreement shall terminate and be of no further force and
effect.
(b) If the Optionee's employment by the Company is terminated
prior to an Approved Sale (i) by the Company without Cause or
by the Optionee for any reason or (ii) due to the Optionee's
Retirement, death or Disability, the Optionee or his or her
representative, during the 120 days following the Termination
Date, shall have a one-time right to require HBRS Limited, a
Cayman Islands corporation ("HBRS") to purchase all, but not
less than all, of the Option Shares, unless, by the thirtieth
(30) day after HBRS and the Company have received notice of
the Optionee's election to exercise his put right to HBRS,
the Company has notified the Optionee and HBRS of its
election, exercisable at the discretion of the Company, to
purchase the Option Shares on the same terms as such Option
Shares were offered to HBRS, in which case such Option Shares
will be acquired by the Company. The purchase price shall be
at Fair Market Value, unless the employment of the Optionee
is terminated by the Company for Cause, in which case the
purchase price will be the lower of Fair Market Value or the
Exercise Price. The purchase price shall be paid in cash on
the thirtieth (30th) day after HBRS and the Company have
received notice of the Optionee's election to exercise his
put right (the "Put Date"), provided that HBRS or the
Company, as the case may be, need not pay the purchase price
until such later time that the Optionee presents to the
Company the Endorsed Certificate.
(c) In the event that (i) on the Termination Date, Optionee
owns Option Shares that have not been owned by the Optionee
for a period of at least six (6) months, and/or (ii)
following the Termination Date, the Optionee exercises any
then outstanding vested Option pursuant to this Agreement,
with respect to all such Option Shares, the Repurchase Period
and the Put Period will not commence on the Termination Date
but rather will commence on the first date on which all such
Option Shares have been owned by Optionee for six (6) months.
(d) In the event that, following the Termination Date, the
Optionee exercises an Option in accordance with Section 4(a)
hereof, by notice to the Optionee delivered during the
Repurchase Period, the Company may elect to purchase any
Option Shares so acquired, and the Optionee may elect to put
said shares to HBRS (subject to the right of the Company to
purchase the Option Shares pursuant to Section 9(a)) by
notice to such effect during the 120 day period following the
Termination Date.
(e) The Fair Market Value of Option Shares to be purchased by
the Company or HBRS, as the case may be, hereunder shall be
determined in good faith by the Company's Board of Directors.
The Fair Market Value shall be based on an assumed sale of
100% of the outstanding capital stock of the Company (without
reduction for minority interest or lack of liquidity of the
Option Shares or similar discount) and determined in a manner
consistent with the manner in which the purchase price paid
by the Investors pursuant to the Recapitalization Agreement
was determined. If such determination of the Fair Market
Value is challenged by the Optionee, a mutually acceptable
investment banker or appraiser shall establish the Fair
Market Value as of the date of valuation referenced by the
Board of Directors or a subsequent determination. The
investment banker's or appraiser's determination shall be
conclusive and binding on the Company and the Optionee. Upon
request by the Optionee the Company shall make available to
the Optionee a description of the methodology employed by the
investment banker or appraiser in making the determination of
Fair Market Value, which description shall include, to the
extent relevant, a listing of companies used in comparing
market and transaction valuations, the range of multiples
applied, and the terminal valuation, discount factor and
multiples used in any discounted cash flow analysis. The
Company shall bear all costs incurred in connection with the
services of such investment banker or appraiser unless (i)
the Fair Market Value established by such investment banker
or appraiser is less than or equal to 120% but more than 110%
of the determination challenged by the Optionee, in which
case the Optionee shall promptly pay or reimburse the Company
fifty percent (50%) for such costs, or (ii) the Fair Market
Value established by such investment banker or appraiser is
equal to or less than 110% of the determination challenged by
the Optionee, in which case the Optionee shall promptly pay
or reimburse the Company for one hundred percent (100%) of
such costs. If the Optionee and the Company cannot agree upon
an investment banker or appraiser, they shall each choose an
investment banker or appraiser and the two shall choose a
third investment banker or appraiser who shall establish the
Fair Market Value.
(f) The Optionee shall not be considered to have ceased to be
employed by the Company for purposes of this Agreement if he
or she continues to be employed by the Company or a
Subsidiary, or by a company of which the Company is a
Subsidiary.
10. Compliance with Legal Requirements.
(a) No Option Shares shall be issued or transferred pursuant
to this Agreement unless and until all legal requirements
applicable to such issuance or transfer have, in the opinion
of counsel to the Company, been satisfied. Such requirements
may include, but are not limited to, registering or
qualifying such Shares under any state or federal law,
satisfying any applicable law relating to the transfer of
unregistered securities or demonstrating the availability of
an exemption from applicable laws, placing a legend on the
Shares to the effect that they were issued in reliance upon
an exemption from registration under the Securities Act of
1933, as amended (the "Act"), and may not be transferred
other than in reliance upon Rule 144 or Rule 701 promulgated
under the Act, if available, or upon another exemption from
the Act, or obtaining the consent or approval of any
governmental regulatory body.
(b) The Optionee understands that the Company intends for the
offering and sale of Option Shares to be effected in reliance
upon Rule 701 or another available exemption from
registration under the Act and intends to file a Form 701 as
appropriate, and that the Company is under no obligation to
register for resale the Option Shares issued upon exercise of
the Option, subject to the Certificate of Incorporation. In
connection with any such issuance or transfer, the person
acquiring the Option Shares shall, if requested by the
Company, provide information and assurances satisfactory to
counsel to the Company with respect to such matters as the
Company reasonably may deem desirable to assure compliance
with all applicable legal requirements.
11. Subject to Certificate of Incorporation. The Optionee
acknowledges that the Option Shares are subject to the terms of
the Certificate of Incorporation.
12. No Interest in Shares Subject to Option. Neither the Optionee
(individually or as a member of a group) nor any beneficiary or
other person claiming under or through the Optionee shall have
any right, title, interest, or privilege in or to any shares of
stock allocated or reserved for the purpose of the Plan or
subject to this Agreement except as to such Option Shares, if
any, as shall have been issued to such person upon exercise of an
Option or any part thereof.
13. Plan Controls. The Option hereby granted is subject to, and the
Company and the Optionee agree to be bound by, all of the terms
and conditions of the Plan as the same may be amended from time
to time in accordance with the terms thereof, but no such
amendment shall be effective as to the Option without the
Optionee's consent insofar as it may adversely affect the
Optionee's rights under this Agreement.
14. Not an Employment Contract. Nothing in the Plan, in this
Agreement or any other instrument executed pursuant thereto shall
confer upon the Optionee any right to continue in the employ of
the Company or any Subsidiary or shall affect the right of the
Company or any Subsidiary to terminate the employment of the
Optionee with or without Cause.
15. Governing Law. All terms of and rights under this Agreement shall
be governed by and construed in accordance with the internal laws
of the State of New York, without giving effect to principles of
conflicts of law.
16. Taxes. The Committee may, in its discretion, make such provisions
and take such steps as it may deem necessary or appropriate for
the withholding of all federal, state, local and other taxes
required by law to be withheld with respect to the issuance or
exercise of the Option including, but not limited to, deducting
the amount of any such withholding taxes from any other amount
then or thereafter payable to the Optionee, requiring the
Optionee to pay to the Company the amount required to be withheld
or to execute such documents as the Committee deems necessary or
desirable to enable it to satisfy its withholding obligations, or
any other means provided in the Plan; provided further that the
Optionee may satisfy all aforesaid withholding tax obligations by
directing the Company to withhold that number of Option Shares
with an aggregate Fair Market Value equal to the amount of all
federal, state, local and other taxes required to be withheld, or
delivering to the Company such number of previously held shares.
18. Notices. All notices, requests, demands and other communications
pursuant to this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered, telexed
or telecopied to, or, if mailed, when received by, the other
party at the following addresses (or at such other address as
shall be given in writing by either party to the other):
If to the Company to:
Harborside Healthcare
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: E. Xxxxxxx Xxxxxxx, Esq.
If to HBRS to:
HBRS Limited
X.X. Xxx 0000, Xxxx Xxxx Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx B.W.I.
With a copy to:
Investcorp Management Services Limited
x/x Xxxxxxxxxx Xxxx X.X.
X.X. Xxx 0000
Xxxxxx, Xxxxxxx
Attention: H. Xxxxxxx Xxxxxx, III
If to the Optionee to the address set forth below the
Optionee's signature below.
19. Amendments and Waivers. This Agreement may be amended, and any
provision hereof may be waived, only by a writing signed by the
party to be charged.
20. Entire Agreement. This Agreement, together with the Plan, sets
forth the entire agreement and understanding between the parties
as to the subject matter hereof and supersedes all prior oral and
written and all contemporaneous oral discussions, agreements and
understandings of any kind or nature.
21. Separability. In the event that any provision of this Agreement
is declared to be illegal, invalid or otherwise unenforceable by
a court of competent jurisdiction, such provision shall be
reformed, if possible, to the extent necessary to render it
legal, valid and enforceable, or otherwise deleted, and the
remainder of this Agreement shall not be affected except to the
extent necessary to reform or delete such illegal, invalid or
unenforceable provision.
22. Headings. The headings preceding the text of the sections hereof
are inserted solely for convenience of reference, and shall not
constitute a part of this Agreement, nor shall they affect its
meaning, construction or effect.
23. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
24. Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order
to carry out the provisions and purposes of this Agreement.
25. Remedies. In the event of a breach by any party to this Agreement
of its obligations under this Agreement, any party injured by
such breach, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, shall be entitled
to specific performance of its rights under this Agreement. The
parties agree that the provisions of this Agreement shall be
specifically enforceable, it being agreed by the parties that the
remedy at law, including monetary damages, for breach of any such
provision will be inadequate compensation for any loss and that
any defense in any action for specific performance that a remedy
at law would be adequate is hereby waived.
26. Binding Effect. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective permitted
successors and assigns.
27. Shareholder Approval. Section 3(b)(ii) of this Agreement shall
not be effective unless shareholder approval meeting the
requirements of Section 280G(b)(5) of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder
is obtained.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date. HARBORSIDE HEALTHCARE CORPORATION
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
OPTIONEE
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Name:
Address: _________________________________
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Number of Option Shares:
Accepted and agreed to for purposes of Section 9(b) only:
HBRS LIMITED
By: ___________________________
Name:
Title:
