EXHIBIT 99.2
AMENDMENT NO. 2 TO STOCKHOLDER AGREEMENT
AMENDMENT NO. 2 (this "Amendment") to the Stockholder
Agreement, dated as of December 29, 2000, and amended as of the 31st day of
December, 2001 (the "Stockholder Agreement"), is made and entered into as of the
31st day of December, 2002, by and among CORAM, INC., a Delaware corporation
(the "Company"), CERBERUS PARTNERS, L.P., a New York limited partnership
("Cerberus"), FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), and XXXXXXX, XXXXX & CO., a New York corporation ("Goldman").
Cerberus, Foothill, and Goldman and each holder of the Company's stock which
becomes a party to the Stockholder Agreement as amended hereby after the date
hereof are individually referred to herein as a "Stockholder," and collectively
as the "Stockholders."
WITNESSETH
WHEREAS, the parties have entered into an Exchange Agreement,
dated December 29, 2000 (the "December 2000 Exchange Agreement"), by and among
the Company, Cerberus, Foothill and Xxxxxxx Sachs Credit Partners L.P., a
Bermuda limited partnership ("GSCP"), pursuant to which the Stockholders
exchanged certain indebtedness for their pro rata share of 905 shares of Series
A Preferred Stock (such exchange being referred to herein as the "December 2000
Exchange");
WHEREAS, in connection with the December 2000 Exchange the
parties hereto have entered into the Stockholder Agreement which states therein
their mutual understandings, agreements and obligations and imposes certain
restrictions on the rights and benefits with respect to the voting and
disposition of the Shares now or hereafter owned by the Stockholders;
WHEREAS, the parties have entered into an additional Exchange
Agreement, dated December 31, 2001 (the "December 2001 Exchange Agreement"), by
and among the Company, Cerberus, Foothill and GSCP, pursuant to which the
Stockholders exchanged certain indebtedness for their pro rata share of 189.5705
shares of Series A Preferred Stock (such exchange being referred to herein as
the "December 2001 Exchange");
WHEREAS, in connection with the December 2001 Exchange, the
parties hereto have entered into Amendment No. 1 of the Stockholder Agreement as
of December 31, 2001 in order to amend their mutual understandings, agreements
and obligations under the Stockholder Agreement;
WHEREAS, pursuant to that certain Exchange Agreement, of even
date herewith (the "December 2002 Exchange Agreement"), by and among the
Company, Cerberus, Foothill and GSCP, (a) Cerberus has acquired 436.09468 shares
of Series B Preferred Stock, (b) Foothill has acquired 228.45132 shares of
Series B Preferred Stock, and (c) Goldman has acquired 553.73479 shares of
Series B Preferred Stock;
WHEREAS, the Series A Preferred Stock (including shares of
Series A Preferred Stock issued in lieu of cash dividends in respect thereof)
and the Series B Preferred Stock held by Cerberus, Foothill and Goldman pursuant
to the December 2000 Exchange Agreement, the December 2001 Exchange Agreement
and the December 2002 Exchange Agreement constitute
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all of the shares of Series A Preferred Stock and Series B Preferred Stock
outstanding on the date hereof; and
WHEREAS, in connection with entering into the December 2002
Exchange Agreement the parties wish to amend their mutual understandings,
agreements and obligations under the Stockholder Agreement as provided in this
Amendment.
NOW, THEREFORE, for and in consideration of the foregoing, the
agreements set forth below, and other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, and intending to be legally
bound hereby, the parties agree as follows:
1. Definitions. Capitalized terms used herein not otherwise
defined herein shall have the meaning ascribed thereto in the Stockholder
Agreement.
2. Amendments to the Stockholder Agreement. The Stockholder
Agreement is hereby amended in accordance with the following provisions:
a. The first recital is hereby amended and restated in its
entirety to read as follows:
"WHEREAS, pursuant to that certain Exchange Agreement dated
December 29, 2000 by and among the Company and the Stockholders and that certain
Exchange Agreement dated December 31, 2001 by and among the Company and the
Stockholders, (a) Cerberus has acquired 484.3685 shares of the Company's Series
A Preferred Stock (as hereinafter defined), (b) Foothill has acquired 205.2581
shares of Series A Preferred Stock, and (c) Goldman has acquired 404.9539 shares
of Series A Preferred Stock;"
b. The following language is hereby inserted after the
first recital:
"WHEREAS, pursuant to that certain Exchange Agreement dated
December 31, 2002 by and among the Company and the Stockholders, (a) Cerberus
has acquired 436.09468 shares of the Company's Series B Preferred Stock (as
hereinafter defined), (b) Foothill has acquired 228.45132 shares of Series B
Preferred Stock, and (c) Goldman has acquired 553.73479 shares of Series B
Preferred Stock;"
c. The following definitions in Section 1 of the
Stockholder Agreement are hereby amended and restated to read as
follows:
"Certificate of Designation" means the Second Certificate of
Amendment of Certificate of Designation of the Company filed
with the Secretary of State of the State of Delaware on
December 31, 2002.
"Preferred Stock" means the Series A Preferred Stock and the
Series B Preferred Stock, collectively.
d. The definition of "Term Sheet" is hereby amended and
restated to read as follows:
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"Term Sheets" means the Term Sheet agreed to by the Company
and the Stockholders dated December 28, 2000, as approved by
the United States Bankruptcy Court for the District of
Delaware, in conjunction with the Term Sheet agreed to by the
Company and the Stockholders dated December 27, 2002, as
approved by the United States Bankruptcy Court for the
District of Delaware.
e. The following definitions in Section 1 of the
Stockholder Agreement are hereby added:
"Series A Preferred Stock" means the Series A Preferred Stock,
$0.001 par value per share, of the Company.
"Series B Certificate of Designation" means the Certificate of
Designation of the Company filed with the Secretary of State of the State of
Delaware on December 31, 2002.
"Series B Preferred Stock" means the Series B Cumulative
Preferred Stock, $0.001 par value per share, of the Company.
f. The date "January 1, 2002" in Section 1 of the
Stockholder Agreement in the definition of "Triggering Event" is hereby
replaced with the date "April 13, 2002."
g. Section 4 of the Stockholder Agreement is hereby amended
and restated in its entirety to read as follows:
4. GOVERNANCE PROVISIONS
4.1. Voting Rights. The holders of the shares of Preferred
Stock hereby acknowledge and agree that the voting rights set
forth in Section 5 of the Certificate of Designation and the
Series B Certificate of Designation, as may be applicable,
shall not be effective (and shall not be exercised by the
holders of the shares of Preferred Stock) prior to the
occurrence of a Triggering Event. Prior to such Triggering
Event, the holders of the shares of Series A Preferred Stock
shall have the following voting rights in lieu of the voting
rights set forth in Section 5 of the Certificate of
Designation:
(a) The holders of shares of Series A Preferred Stock
shall have the exclusive right, voting separately as
a single class, to elect up to a number of directors
(but not more than two) that constitutes less than
half of the total directors of the Company; provided,
however, that if the holders of the shares of Series
A Preferred Stock do not elect any directors to the
Board of Directors, such holders will have the right
to appoint up to three observers to the Board of
Directors.
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(b) Subject to the proviso in Section 4.2 of the
By-laws of the Company, any vacancy occurring in the
office of director elected by the holders of the
shares of Series A Preferred Stock or any additional
director to be elected pursuant to Section 4.1(a)
above may be filled by the remaining director(s)
elected by the holders of the shares of Series A
Preferred Stock unless and until such vacancy shall
be filled by the holders of the shares of Series A
Preferred Stock. The term of office of the directors
elected by the holders of the shares of Series A
Preferred Stock shall terminate upon the election of
their successors at any meeting of the holders of the
shares of Series A Preferred Stock held for the
purpose of electing directors elected by the holders
of the shares of Series A Preferred Stock.
(c) Subject to the proviso in Section 4.2 of the
By-laws of the Company, the directors elected by the
holders of the shares of Series A Preferred Stock
voting separately as a single class may only be
removed from office with or without cause by the vote
of the holders of at least a majority of the
outstanding shares of Series A Preferred Stock.
(d) From and after the occurrence of a Triggering
Event, the foregoing rights of the holders of the
shares of Series A Preferred Stock to elect directors
of the Company in accordance with this Section 4.1
shall no longer be effective (and shall not be
exercised by the holders of the shares of Series A
Preferred Stock) and shall be replaced with the
rights of the holders of shares of Series A Preferred
Stock to elect directors of the Company in accordance
with Section 5 of the Certificate of Designation.
d. Section 8.4 of the Stockholder Agreement is hereby
amended by deleting the following language:
with a copy (which shall
not constitute notice) to: Xxxx Xxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxx 0000 - Xxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
Telecopy Number: 000-000-0000
and replacing it with the following language:
with a copy (which shall
not constitute notice) to: Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telecopy Number: 000-000-0000
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3. Effect on the Stockholder Agreement. Except as amended hereby, the
Stockholder Agreement shall remain in full force and effect.
4. Governing Law. This Amendment shall be construed and enforced in
accordance with the internal laws of the State of Delaware, irrespective of the
choice of law provisions thereof.
5. Facsimile Signature; Counterparts. This Amendment may be executed by
facsimile signature and in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
6. References. References herein to the "Stockholder Agreement," "this
Amendment," "hereunder," "hereof," or words of like import referring to the
Stockholder Agreement, shall mean and be a reference to the Stockholder
Agreement as amended hereby.
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IN WITNESS WHEREOF, this Amendment has been executed as of the
date and year first above written.
CORAM, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Chief Financial
Officer & Treasurer
CERBERUS PARTNERS, L.P.
By: Cerberus Associates LLC
Its: General Partner
By: /s/ XXXX X. NEPORENT
-------------------------------------------
Name: Xxxx X. Neporent
Title: Managing Director
FOOTHILL CAPITAL CORPORATION
By: /s/ M. E. XXXXXXX
-------------------------------------------
Name: M. E. Xxxxxxx
Title: Sr. XX
XXXXXXX, XXXXX & CO.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
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