Exhibit 99(d)(3)
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of October 18, 2001 (this
"Agreement") among Tender Loving Care Health Care Services, Inc., a Delaware
corporation (the "Company"), x-XxxXxxx.xxx, a Nevada corporation ("Parent"), and
TLC Acquisition Corporation, a Delaware corporation and wholly owned subsidiary
of Parent ("Merger Sub").
WITNESSETH:
WHEREAS, concurrently with the execution and delivery of this
Agreement, the parties hereto are entering into an Agreement and Plan of Merger
and Reorganization (as such agreement may hereafter be amended from time to
time, the "Merger Agreement") which provides, upon the terms and subject to the
conditions set forth therein, for (i) the commencement by the Merger Sub of an
offer (the "Offer") to purchase any and all of the outstanding shares of the
Company's common stock, par value $0.01 per share (each a "Share" and
collectively, the "Shares"), at a price of $1.00 per Share net to the Seller in
cash (or any higher price paid for each Share in the Offer, the "Per Share
Amount"), and (ii) the subsequent merger of the Merger Sub with and into the
Company (the "Merger"), whereby each Share then outstanding (other than Shares
owned by Parent or any of its wholly-owned Subsidiaries or held by the Company
and other than dissenting Shares) will be converted into the right to receive
the Per Share Amount;
WHEREAS, as a condition to the willingness of Parent and the
Merger Sub to enter into the Merger Agreement, Parent and the Merger Sub have
required that the Company agree, and in order to induce Parent and the Merger
Sub to enter into the Merger Agreement, the Company has agreed, to grant to the
Merger Sub certain options to purchase Shares upon the terms and subject to the
conditions of this Agreement; and
WHEREAS, capitalized terms used but not defined in this
Agreement shall have the meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
THE TOP-UP OPTION
SECTION 1.01 GRANT OF TOP-UP STOCK OPTION. Subject to the terms and
conditions set forth herein, the Company hereby grants to the Merger Sub an
irrevocable option (the "Top-Up Stock Option") to purchase that number of Shares
(the "Top-Up Option Shares") equal to the number of Shares that, when added to
the number of Shares owned by the Merger Sub, Parent and their Subsidiaries
immediately following consummation of the Offer, shall constitute 90% of the
Shares then outstanding (assuming the issuance of the Top-Up Option Shares) at a
purchase
price per Top-Up Option Share equal to the Per Share Amount; provided, however,
that the Top-Up Stock Option shall not be exercisable if the number of Shares
subject thereto exceeds the number of authorized Shares available for issuance.
The Company agrees to provide Parent and the Merger Sub with information
regarding the number of Shares available for issuance on an ongoing basis.
SECTION 1.02 EXERCISE OF TOP-UP STOCK OPTION.
(a) The Merger Sub may, at its election, exercise the Top-Up Stock Option
in whole, but not in part, at any one time after the occurrence of a Top-Up
Exercise Event (as defined below) and prior to the Top-Up Termination Date (as
defined below).
(b) A "Top-Up Exercise Event" shall occur for purposes of this Agreement
upon the Merger Sub's acceptance for payment pursuant to the Offer of Shares
constituting more than [75%] but less than 90% of the Shares then outstanding on
a fully diluted basis.
(c) Except as provided in the last sentence of this Section 1.02, the
"Top-Up Termination Date" shall occur for purposes of this Agreement upon the
earliest to occur of:
(i) the Effective Time;
(ii) the date which is 20 business days after the occurrence of a
Top-Up Exercise Event; and
(iii) the termination of the Merger Agreement. Notwithstanding the
occurrence of the Top-Up Termination Date, the Merger Sub shall be entitled to
purchase the Top-Up Option Shares if it has exercised the Top-Up Stock Option in
accordance with the terms hereof prior to such occurrence. The occurrence of the
Top-Up Termination Date shall not affect any rights hereunder which by their
terms do not terminate or expire prior to or as of such date, unless the Merger
Agreement has terminated by its terms prior to the occurrence of the Top-Up
Closing.
(d) In the event the Merger Sub wishes to exercise the Top-Up Stock Option,
the Merger Sub shall send to the Company a written notice (a "Top-Up Exercise
Notice," the date of which notice is referred to herein as the "Top-Up Notice
Date") specifying the denominations of the certificate or certificates
evidencing the Top-Up Option Shares which the Merger Sub wishes to receive, the
place for the closing of the purchase and sale pursuant to the Top-Up Stock
Option (the "Top-Up Closing") and a date not earlier than one day nor later than
ten business days from the Top-Up Notice Date for the Top-Up Closing; provided,
however, that
(i) the Top-Up Closing shall occur concurrently with the consummation
of the Offer,
(ii) if the Top-Up Closing cannot be consummated by reason of any
applicable laws or orders, the period of time that otherwise would run pursuant
to this sentence shall run instead from the date on which such restriction on
consummation has expired or been terminated, and
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(iii) without limiting the foregoing, if prior notification to or
approval of any governmental entity is required in connection with such
purchase, the Merger Sub and the Company shall promptly file the required notice
or application for approval and shall cooperate in the expeditious filing of
such notice or application, and the period of time that otherwise would run
pursuant to this sentence shall run instead from the date on which, as the case
may be, (A) any required notification period has expired or been terminated or
(B) any required approval has been obtained, and in either event, any requisite
waiting period has expired or been terminated. The Company shall, promptly after
receipt of the Top-Up Exercise Notice, deliver a written notice to the Merger
Sub confirming the number of Top-Up Option Shares and the aggregate purchase
price therefor.
ARTICLE 2
CLOSING
SECTION 2.01 CONDITIONS TO CLOSING. The obligation of the Company to
deliver Top-Up Option Shares upon the exercise of the Top-Up Stock Option is
subject to the following conditions:
(a) any applicable waiting period under the HSR Act, as defined in Section
3.3 of the Merger Agreement, relating to the issuance of the Top-Up Option
Shares hereunder shall have expired or been terminated; and
(b) no provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the exercise of the Top-Up Stock
Option or the delivery of the Top-Up Option Shares in respect of any such
exercise.
SECTION 2.02 CLOSING.
(a) At the Top-Up Closing (i) the Company shall deliver to the Merger Sub a
certificate or certificates evidencing the applicable number of Top-Up Option
Shares (in the denominations designated by the Merger Sub in the Top-Up Exercise
Notice) and (ii the Merger Sub shall purchase each Top-Up Option Share from the
Company at the Per Share Amount. Payment by the Merger Sub for the Top-Up Option
Shares may be made, at the option of the Merger Sub, by delivery of (i) cash by
wire transfer or (ii) a promissory note, in form and substance reasonably
satisfactory to the Company and in a principal face amount equal to the
aggregate amount of the purchase price, which promissory note shall bear
interest at a rate equal to 5% per annum and shall be payable in full with
accrued interest five business days following written demand given by the
Company to the Merger Sub or Parent at any time following the Effective Time.
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(b) The Company shall pay all expenses, and any and all federal, state and
local taxes and other charges, that may be payable in connection with the
preparation, issuance and delivery of stock certificates under this Section
2.02.
(c) Certificates evidencing Top-Up Option Shares delivered hereunder may
include legends legally required including the legend in substantially the
following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR
SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. It is understood and agreed that the foregoing legend shall be
removed by delivery of substitute certificate(s) without such legend upon the
sale of the Top-Up Option Shares pursuant to a registered public offering or
Rule 144 under the Securities Act, or any other sale as a result of which such
legend is no longer required.
ARTICLE 3
ADDITIONAL AGREEMENTS
SECTION 3.01 REASONABLE BEST EFFORTS. Subject to the terms and conditions
of this Agreement, Parent, the Merger Sub and the Company will use their
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate the transactions contemplated by this
Agreement.
SECTION 3.02 FURTHER ASSURANCES. The Company shall perform such further
acts and execute such further documents and instruments as may reasonably be
required to vest in the Merger Sub and Parent the power to carry out the
provisions of this Agreement. If the Merger Sub shall exercise the Top-Up Stock
Option granted hereunder in accordance with the terms of this Agreement, the
Company shall, without additional consideration, execute and deliver all such
further documents and instruments and take all such further action as the Merger
Sub or Parent may reasonably request to carry out the transactions contemplated
by this Agreement.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01 NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given as specified in Section 9.1 of the Merger Agreement.
SECTION 4.02 AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each
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party to this Agreement or, in the case of a waiver, by each party against whom
the waiver is to be effective.
(b) 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. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 4.03 EXPENSES. Except as otherwise provided herein or in Section
8.3 of the Merger Agreement, all costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
SECTION 4.04 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 assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, except that the Merger Sub may
transfer or assign, in whole or from time to time in part, to one or more of its
Affiliates, the right to purchase all or a portion of the Top-Up Option Shares
pursuant to this Agreement, but no such transfer or assignment will relieve the
Merger Sub of its obligations under this Agreement.
SECTION 4.05 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, without regard to
the conflicts of law rules of such state.
SECTION 4.06 COUNTERPARTS; EFFECTIVENESS; BENEFIT. This Agreement may be
signed 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. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto. No
provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations, or liabilities hereunder upon any Person other than the
parties hereto and their respective successors and assigns.
SECTION 4.07 ENTIRE AGREEMENT. This Agreement and the Merger Agreement
(including the documents and instruments referred to therein) constitute the
entire agreement between the parties with respect to the subject matter of this
Agreement and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 4.08 CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 4.09 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this
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Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated 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 a determination, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
SECTION 4.10 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to 6 enforce specifically the performance of the terms and provisions hereof,
in addition to any other remedy to which they are entitled at law or in equity.
SECTION 4.11 TERMINATION. This Agreement will terminate upon the earliest
to occur of:
(i) the Effective Time;
(ii) the date which is 20 business days after the occurrence of a
Top-Up Exercise Event; and
(iii) the termination of the Merger Agreement.
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IN WITNESS WHEREOF, Parent, the Merger Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the first date written above.
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Chairman and Chief Executive Officer
X-XXXXXXX.XXX
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: President and Co-Chief Executive Officer
TLC ACQUISITION CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: President and Chief Executive Officer
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