EXHIBIT 1
EXECUTION COPY
HILLTOPPER HOLDING CORP.
SUBSCRIPTION AND CONTRIBUTION AGREEMENT
February 24, 2000
To the Investors whose
names and addresses are set
forth on Schedules I and II hereto
Gentlemen:
This letter is being written for the purpose of setting forth the
understandings between Hilltopper Holding Corp., a Delaware corporation (the
"Company"), and each of the Investors whose names and addresses are set forth on
Schedule I or Schedule II hereto (each, an "Investor" and collectively, the
"Investors") in connection with the purchase by the Investors and sale by the
Company of shares of its Series A Convertible Preferred Stock, par value $0.01
per share (the "Series A Preferred Stock"), and its Series B Convertible
Preferred Stock, par value $0.01 per share (the "Series B Preferred Stock" and,
together with the Series A Preferred Stock, the "Preferred Stock") as set forth
below.
If you are in agreement with the terms and conditions set forth herein,
please sign the last page of one copy of this letter and return it to us,
whereupon this letter shall represent a legally binding agreement between us and
shall supersede any prior agreement between you and the Company or any third
party as regards the sale and purchase of stock of the Company. Please keep the
other copy of this letter for your files.
1. AUTHORIZATION OF CAPITAL STOCK. The Company will prior to the Closing
Date (as herein defined) authorize the creation of (i) 20,000,000 shares of
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"),
(ii) 5,000,000 shares of Class B Common Stock, par value $0.01 per share (the
"Class B Common Stock" and, together with the Class A Common Stock, the "Common
Stock"), (iii) 15,000,000 shares of Series A Preferred Stock and (iv) 5,000,000
shares of Series B Preferred Stock. The terms, limitations and relative rights
and preferences of the Preferred Stock are set forth in the Amended and Restated
Certificate of Incorporation (the "Amended and Restated Certificate"),
substantially in the form in which it will be in effect on the Closing Date,
attached hereto as Exhibit A.
2. PURCHASE AND SALE OF SHARES.
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(a) Subject to the terms and conditions hereof, on the Closing Date, the
Company shall issue to each Investor whose name and address is set forth on
Schedule I hereto (the "Cash Investors") and each Cash Investor shall purchase
from the Company, the number of shares (as herein defined) set forth opposite
its name on Schedule I hereto, for the amount per share in cash set forth on
Schedule I hereto.
(b) Subject to the terms and conditions hereof, on the Closing Date the
Company shall issue to each Investor whose name and address is set forth on
Schedule II hereto (the "Exchange Investors") and each Exchange Investor shall
purchase from the Company, the number of Shares set forth opposite its name on
Schedule II hereto, in exchange for the number of shares of Common Stock, par
value $.01 per share ("Target Common Stock"), of Centennial HealthCare
Corporation, a Georgia corporation ("Target"), set forth on Schedule II hereto
(the "Exchange Shares"). The value per share of such shares of Target Common
Stock transferred by each Exchange Investor to the Company is set forth opposite
its name on Schedule II hereto.
(c) The issuances and sales referred to in Sections 2(a) and 2(b) hereof
shall be effected by the Company executing and delivering to each Investor duly
executed certificates evidencing the Shares to be subscribed by such Investor,
duly registered in such Investor's name against delivery by such Investor to the
Company of the consideration set forth opposite such Investor's name on Schedule
I or II. Any cash payment shall be made by wire transfer.
(d) The closing of the sale (the "Closing") shall take place one business
day after the date on which Hilltopper Acquisition Corp. ("Merger Sub"), a
wholly owned subsidiary of the Company, shall have accepted for payment the
shares of Target Common Stock tendered in the Offer (as defined in the Agreement
and Plan of Merger to be entered into after the date hereof by and among the
Company, Merger Sub and Target (the "Merger Agreement")), and has deposited with
the depositary funds sufficient to purchase such shares of Target Common Stock.
The date of the closing is herein referred to as the "Closing Date."
(e) On the Closing Date, the Company shall deliver to each Investor such
officers' certificates, good standing certificates and instruments as shall be
reasonably requested relating to the transactions contemplated hereby.
(f) In order to facilitate the contribution of the Exchange Shares by the
Exchange Investors, each Exchange Investor shall deliver within ten business
days of the date hereof one or more certificates representing all of the
Exchange Shares to be contributed by such Exchange Investor to the Company,
together with stock powers or other instruments duly endorsed or otherwise
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sufficient for transfer (the "Exchange Instruments"). The Company shall hold the
Exchange Instruments in escrow pending the Closing Date. On the Closing Date,
the Company is authorized to present the Exchange Instruments to the transfer
agent for Target and instruct the transfer agent to register the Exchange Shares
in the name of the Company or its designee.
(g) Each Investor agrees for US federal income tax purposes to treat its
purchase of Preferred Stock as described herein as a transaction described in
Section 351(a) of the Internal Revenue Code of 1986, as amended.
3. RESTRICTIONS ON STOCK. None of the Shares (including any shares received
as a result of dividends, splits or any other forms of recapitalization in
respect of such Shares) shall be Transferred (as hereinafter defined), either
voluntarily or involuntarily, directly or indirectly, except (i) pursuant to an
effective registration under the Securities Act (as hereinafter defined), or in
a transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Securities Act and the
rules and regulations promulgated thereunder and (ii) in accordance with the
terms of the Stockholders Agreement, dated as of the Closing Date, by and among
the Company and the Investors (as the same may be amended from time to time, the
"Stockholders Agreement"), such agreement to be substantially in the form
attached hereto as Exhibit B.
4. WARRANTIES AND REPRESENTATIONS OF THE COMPANY
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The Company represents and warrants that:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Attached hereto as
Exhibits C and D, respectively, are true and complete copies of the Certificate
of Incorporation and the Bylaws of the Company as in effect on the date hereof.
(b) The Company has been recently formed to enter into the Merger Agreement
and to consummate the transactions contemplated thereby and has not conducted
any business other than in connection therewith and certain start-up activities.
As of the Closing Date, the Company will have no assets or liabilities other
than those incurred in connection with the Company's incorporation and the
Company's start-up activities, and those acquired or assumed pursuant to the
Merger Agreement and those acquired or incurred in connection with the
transactions contemplated thereby.
(c) The execution, delivery and performance by the Company of this
Agreement and the Merger Agreement and the consummation of the transactions
contemplated hereby and thereby are within the corporate powers of the Company.
The Board of Directors of the Company (the "Board") has authorized the
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execution, delivery, and performance of this Agreement and the Merger Agreement,
and each of the transactions contemplated hereby and thereby. No other corporate
action is necessary to authorize such execution, delivery and performance, and
upon such execution and delivery, each of this Agreement and the Merger
Agreement shall constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. The Board has
authorized the issuance and delivery of the Shares in accordance with this
Agreement.
(d) The Shares to be issued and sold by the Company pursuant to this
Agreement, when issued in accordance with the provisions hereof, will be validly
issued by the Company, fully paid and nonassessable shares of the Company, upon
delivery thereof, the Investors will acquire good title to the Shares, free and
clear of any lien or claim of any kind, other than as contemplated by this
Agreement and the Stockholders Agreement or any liens incurred by the Investors,
and no stockholder of the Company has any preemptive rights to subscribe for any
such Shares. The shares of Common Stock issuable upon conversion of the Shares
will be, when issued in accordance with the terms of the Amended and Restated
Certificate, validly issued by the Company, fully paid and nonassessable shares
of the Company, upon delivery thereof, the Investors will acquire good title to
the shares of Common Stock, free and clear of any lien or claim of any kind,
other than as contemplated by this Agreement and the Stockholders Agreement or
any liens incurred by the Investors, and no stockholder of the Company will have
any preemptive rights to subscribe for any such shares.
(e) Except for the filing of the Amended and Restated Certificate with the
Secretary of State of the State of Delaware and for filings by the Investors, if
any, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, the
creation, authorization, issuance, offer and sale of the Shares do not require
any consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of the Company or the
vote, consent or approval in any manner of the holders of any Security (as
hereinafter defined) of the Company as a condition to the execution and delivery
of this Agreement or the creation, authorization, issuance, offer and sale of
the Shares. The execution and delivery by the Company of this Agreement and the
Merger Agreement and the performance by the Company of its obligations hereunder
and thereunder will not violate (i) the terms and conditions of the Certificate
of Incorporation or the Bylaws of the Company, or any agreement or instrument to
which the Company is a party or by which it is bound or (ii) subject to the
accuracy of the Investors' representations and warranties contained in Section 5
hereof, any federal or state law.
(f) Immediately prior to the Closing, the outstanding capital stock of the
Company will consist of one share of Common Stock. Immediately after the
Closing, the outstanding capital
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stock of the Company will consist of one share of Common Stock and the Shares.
Except as set forth in this Section 4(f) or the Amended and Restated Certificate
and except for options to be made available to the management of the Company
there are, and immediately after the Closing there will be, no outstanding (i)
shares of capital stock or voting securities of the Company, (ii) securities of
the Company convertible into or exchangeable for shares of capital stock or
voting securities of the Company, (iii) options or other rights to acquire from
the Company, or other obligations of the Company to issue any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of the Company or (iv) obligations of the Company to
repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in clause (i),
(ii), or (iii).
(g) Other than this Agreement, the Merger Agreement, the Stockholders
Agreement and the Registration Rights Agreement, no agreement or other
arrangement regarding any class of capital stock of the Company exists between
the Company, or any of its affiliates and any Person. The Company is not a party
to, has not agreed to be a party to, and does not plan to become a party to any
agreement or arrangement with any affiliate, stockholder or other person or
entity who will become a stockholder of the Company in connection with the
transactions contemplated by the Merger Agreement and this Agreement, which has
not been disclosed to each Investor.
(h) There is no investment banker, broker or finder which has been retained
by, will be retained by or is authorized to act on behalf of the Company who
will be entitled to any fee or commission from the Target or the Company upon
consummation of the transactions contemplated by this Agreement.
(i) Neither Company, Merger Sub nor any executive officer or director of
Company or Merger Sub has acquired any shares of Target Common Stock (or any
security exchangeable for or convertible into such shares) since January 30,
1998 at a price in excess of the Per Share Amount (as defined in the Merger
Agreement.
5. INVESTOR REPRESENTATIONS
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Each Investor severally (and not jointly) represents and warrants that:
(a) Offering Exemption. The Investor understands that the Shares and the
shares of Common Stock issuable upon conversion of the Shares have not been
registered under the Securities Act, nor qualified under any state securities
laws, and that they are being offered and sold pursuant to an exemption from
such registration and qualification based in part upon such Investor's
representations contained herein.
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(b) Knowledge of Offer. The Investor is familiar with the business and
operations of the Company and has been given the opportunity to obtain from the
Company all information that such Investor has requested regarding its business
plans and prospects.
(c) Knowledge and Experience; Ability to Bear Economic Risks. The Investor
has such knowledge and experience in financial and business matters that the
Investor is capable of evaluating the merits and risks of the investment
contemplated by this Agreement; and the Investor is able to bear the economic
risk of this investment in the Company (including a complete loss of this
investment).
(d) Limitations on Disposition. The Investor recognizes that no public
market exists for the Shares, and none will exist in the future (other than as
set forth in the Registration Rights Agreement). The Investor understands that
the Investor must bear the economic risk of this investment indefinitely unless
the Shares are registered pursuant to the Securities Act or an exemption from
such registration is available, and unless the disposition of such Shares is
qualified under applicable state securities laws or an exemption from such
qualification is available, and that the Company has no obligation or present
intention of so registering the Shares (other than as set forth in the
Registration Rights Agreement). The Investor further understands that there is
no assurance that any exemption from the Securities Act will be available, or,
if available, that such exemption will allow the Investor to Transfer any or all
the Shares, in the amounts, or at the times the Investor might propose. The
Investor understands at the present time Rule 144 promulgated under the
Securities Act by the SEC ("Rule 144") is not applicable to sales of the Shares
because they are not registered under Section 12 of the Exchange Act (as herein
defined) and there is not publicly available the information concerning the
Company specified in Rule 144. The Investor further acknowledges that the
Company is not presently under any obligation to register under Section 12 of
the Exchange Act or to make publicly available the information specified in Rule
144 and that it may never be required to do so. The Investor further
acknowledges the restrictions on disposition and other terms set forth in the
Stockholders Agreement.
(e) Investment Purpose. The Investor is acquiring the Shares solely for its
own account for investment and not with a view toward the resale, Transfer, or
distribution thereof, nor with any present intention of distributing the Shares.
No other Person (as hereinafter defined) has any right with respect to or
interest in the Shares to be purchased by the Investor, nor has the Investor
agreed to give any Person any such interest or right in the future.
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(f) Capacity. The Investor has full power and legal right to execute and
deliver this Agreement and to perform its obligations hereunder.
(g) Previous Acquisitions of Target Shares. Neither Warburg nor any
Investor who is an executive officer of Target has acquired any shares of Target
Common Stock (or any security exchangeable for or convertible into such shares)
since January 30, 1998 at a price in excess of the Per Share Amount (as defined
in the Merger Agreement).
(h) Exchange Shares. Each Exchange Investor represents that it is the sole
beneficial owner of its Exchange Shares, free and clear of any pledge, lien,
security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind, other than restrictions imposed by the securities laws
or pursuant to this Agreement, the Voting Agreement (as defined in the Merger
Agreement) and the Merger Agreement.
The Investor understands and acknowledges that, following the effective
time of the merger contemplated by the Merger Agreement, the Target shall pay,
or, to the extent previously paid, reimburse the Company, Merger Sub or Warburg,
Xxxxxx Equity Partners, L.P. ("Warburg"), as applicable, for, all fees, costs
and expenses incurred by the Company, Merger Sub and Warburg in connection with
the Merger Agreement and the transactions contemplated by the Merger Agreement.
6. COVENANTS
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(a) Financial and Business Information
From and after the date hereof, the Company shall deliver to each of the
Investors so long as such Investor owns beneficially (within the meaning of Rule
13d-3 under the Exchange Act) any shares of Common Stock:
(i) Monthly and Quarterly Statements -as soon as practicable, and in any
event within 30 days after the close of each month of each fiscal year
of the Company in the case of monthly statements and 45 days after the
close of each of the first three fiscal quarters of each fiscal year
of the Company in the case of quarterly statements, a consolidated
balance sheet, statement of income and statement of cash flows of the
Company and any subsidiaries as at the close of such month or quarter
and covering operations for such month or quarter, as the case may be,
and the portion of the Company's fiscal year ending on the last day
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of such month or quarter, all in reasonable detail and prepared in
accordance with GAAP, subject to audit and year-end adjustments,
setting forth in each case in comparative form the figures for the
comparable period of the previous fiscal year.
(ii) Annual Statements - as soon as practicable after the end of each
fiscal year of the Company, and in any event within 90 days
thereafter, duplicate copies of:
(a) consolidated and consolidating balance sheets of the Company
and any subsidiaries at the end of such year; and
(b) consolidated and consolidating statements of income,
stockholders' equity and cash flows of the Company and any
subsidiaries for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable
detail and accompanied by an opinion thereon of independent certified
public accountants of recognized national standing selected by the
Company, which opinion shall state that such financial statements
fairly present the financial position of the Company and any
subsidiaries on a consolidated basis and have been prepared in
accordance with GAAP (except for changes in application in which such
accountants concur) and that the examination of such accountants in
connection with such financial statements has been made in accordance
with generally accepted auditing standards, and accordingly included
such tests of the accounting records and such other auditing
procedures as were considered necessary in the circumstances.
(iii) Business Plan; Projections - no later than 30 days prior to the
commencement of each fiscal year of the Company, an annual business
plan of the Company and projections of operating results, prepared on
a monthly basis, and a three year business plan of the Company and
projections of operating results. Within 45 days of the close of each
semi-annual fiscal period of the Company, the Company shall provide
the Investors with an update of such monthly projections. Such
business plans, projections and updates shall contain such substance
and detail and shall be in such form as will be reasonably acceptable
to the Investors.
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(iv) Audit Reports - promptly upon receipt thereof, one copy of each other
financial report and internal control letter submitted to the Company
by independent accountants in connection with any annual, interim or
special audit made by them of the books of the Company.
(v) Other Reports - promptly upon their becoming available, one copy of
each financial statement, report, notice or proxy statement sent by
the Company to stockholders generally, of each financial statement,
report, notice or proxy statement sent by the Company or any of its
subsidiaries to the SEC, if applicable, of each regular or periodic
report and any registration statement, prospectus or written
communication (other than transmittal letters) in respect thereof
filed by the Company or any subsidiary with, or received by such
Person in connection therewith from, any domestic or foreign
securities exchange, the SEC or any foreign regulatory authority
performing functions similar to the SEC, of any press release issued
by the Company or any subsidiary, and of any material of any nature
whatsoever prepared by the SEC or any state blue sky or securities law
commission which relates to or affects in any way the Company or any
subsidiary.
(vi) Progress Report - promptly following each regularly scheduled meeting
of the Board, a narrative report shall be delivered to each of the
Investors describing the Company's activities since the date of the
last such report, including a description of business development,
operating results and marketing efforts.
(vii) Requested Information - with reasonable promptness, the Company shall
furnish each of the Investors with such other data and information as
from time to time may be reasonably requested.
(b) Inspection
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As long as an Investor owns beneficially (within the meaning of Rule 13d-3
under the Exchange Act) at least five percent (5%) of the outstanding Common
Stock, the Company shall permit such Investor, its nominee, assignee, and its
representative to visit and inspect any of the properties of the Company and its
subsidiaries, to examine all its and its subsidiaries books of account, records,
reports and other papers not contractually required of the Company to be
confidential or secret, to make copies and extracts therefrom, and to discuss
its and its subsidiaries affairs, finances and accounts with its and its
subsidiaries officers, directors, key employees and independent public
accountants or any of them (and by this provision the Company authorizes said
accountants to discuss with such Investor, its nominees, assignees and
representatives the finances and affairs of the Company and any subsidiaries),
all at such reasonable times and as often as may be reasonably requested.
(c) Confidentiality
As to so much of the information and other material furnished under or in
connection with this Agreement (whether furnished before, on or after the date
hereof, including without limitation information furnished pursuant to Sections
6(a) and 6 (b) hereof) as constitutes or contains confidential business,
financial or other information of the Company or any subsidiary, each of the
Investors covenants for itself and its directors, officers and partners that it
will use due care to prevent its officers, directors, partners, employees,
counsel, accountants and other representatives from disclosing such information
to Persons other than their respective authorized employees, counsel,
accountants, shareholders, partners, limited partners and other authorized
representatives; provided, however, that each Investor may disclose or deliver
any information or other material disclosed to or received by it should such
Investor be advised by its counsel that such disclosure or delivery is required
by law, regulation or judicial or administrative order. In the event of any
termination of this Agreement prior to the Closing Date, each Investor shall
return to the Company all confidential material previously furnished to such
Investor or its officers, directors, partners, employees, counsel, accountants
and other representatives in connection with this transaction. For purposes of
this Section 6(c), "due care" means at least the same level of care that such
Investor would use to protect the confidentiality of its own sensitive or
proprietary information, and this obligation shall survive termination of this
Agreement.
(d) Conduct of Business and Maintenance of Existence
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The Company will continue, and will cause Target to continue, to engage in
business of the same general type as now conducted by it, and preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business. The Company shall require all
of its and its subsidiaries' employees or consultants to enter into appropriate
confidentiality agreements to protect confidential information relating to the
Company and its business, including trade secrets.
(e) Compliance with Laws
The Company will comply, and will cause each of its subsidiaries to comply,
in all material respects with all applicable laws, rules, regulations and orders
except where the failure to comply would not have a material adverse effect on
the business, properties, operations, prospects or financial condition of the
Company and its subsidiaries.
(f) Insurance
The Company will maintain, and will cause each of its subsidiaries to
maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies of similar size and credit standing engaged in similar business and
owning similar properties, provided that such insurance is and remains available
to the Company and its subsidiaries, as the case may be, at commercially
reasonable rates.
(g) Keeping of Books
The Company will keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and its subsidiaries in accordance with GAAP.
(h) Lost, etc. Certificates Evidencing Shares (or Shares of Common Stock);
Exchange. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any certificate evidencing any
Shares or shares of Common Stock owned by any Investor, and (in the case of
loss, theft or destruction) of an unsecured indemnity satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of such certificate, if mutilated, the
Company will make and deliver in lieu of such certificate a new certificate of
like tenor and for the number of shares evidenced by such certificate which
remain outstanding. An Investor's agreement of indemnity shall constitute an
indemnity satisfactory to the
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Company for purposes of this Section 6. Upon surrender of any certificate
representing any Shares or shares of Common Stock for exchange at the office of
the Company, the Company at its expense will cause to be issued in exchange
therefor new certificates in such denomination or denominations as may be
requested for the same aggregate number of Shares or shares of Common Stock
represented by the certificate so surrendered and registered as such holder may
request. The Company will also pay the cost of all deliveries of certificates
for such shares to any Investor (including the cost of insurance against loss or
theft in an amount satisfactory to the holders) upon any exchange provided for
in this Section 6.
(i) Termination. The provisions of this Section 6 (other than Section 6(h),
which shall survive) shall remain in effect until the closing of a Qualified
Public Offering (as defined in the Amended and Restated Certificate).
7. SECURITIES ACT RESTRICTIONS. In addition to the legend required by
Section 1(a) of the Stockholders Agreement, the certificates evidencing the
Shares will bear the following legend reflecting the restrictions on the
transfer of such securities contained in this Agreement:
"The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be transferred
except pursuant to an effective registration under the Act or in a
transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Act and the rules and
regulations promulgated thereunder."
8. OTHER AGREEMENTS. On the Closing Date, the Company and each of the
Investors shall execute and mutually deliver a counterpart of the Stockholders
Agreement and the Registration Rights Agreement.
9. INTERPRETATION OF THIS AGREEMENT
(a) Terms Defined. As used in this Agreement, the following terms have the
respective meaning set forth below:
Exchange Act: the Securities Exchange Act of 1934, as amended.
GAAP: generally accepted accounting principles, consistently applied.
Person: an individual, partnership, joint-stock company, corporation,
limited liability company, trust or unincorporated organization, and a
government or agency or political subdivision thereof.
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Registration Rights Agreement: that certain registration rights agreement,
dated as of the Closing Date, by and among the Company and each of the
Investors, such agreement to be substantially in the form attached hereto as
Exhibit E.
SEC: the Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act.
Securities Act: the Securities Act of 1933, as amended.
Security, Securities: as defined in Section 2(1) of the Securities Act.
Shares: Shares of Preferred Stock issued pursuant to Section 2 hereunder.
Transfer: any sale, assignment, pledge, hypothecation, or other disposition
or encumbrance.
(b) Directly or Indirectly. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within such State.
(d) Section Headings. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
10. TERMINATION
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(a) In the event (i) the Merger Agreement is terminated prior to the
Closing Date or (ii) the Merger Agreement is not executed and delivered by the
parties thereto within three business days of the date hereof, this Agreement
will be terminate automatically and shall have no further force or effect.
(b) Upon a termination of this Agreement pursuant to Section 10(a), the
Company shall promptly return any Exchange Instruments delivered to it pursuant
to Section 2(f) to the Exchange Investors.
11. MISCELLANEOUS
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(a) Notices. All communications under this Agreement shall be in writing
and shall be delivered by hand or facsimile
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or mailed by overnight courier or by registered mail or certified mail, postage
prepaid:
(i) if to the Company, c/o Warburg, Xxxxxx & Co., at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx (Fax No.: (212)
878-9351), or at such other address or facsimile number as Warburg may
have furnished the other parties hereto in writing;
(ii) if to any Investor, at the address or facsimile number set forth below
such Investor's name on Schedule I or Schedule II hereto, or at such
other address or facsimile number as the Investor may have furnished
the other parties hereto in writing.
(b) Any notice so addressed shall be deemed to be given: if delivered by
hand or facsimile, on the date of such delivery, if a business day, otherwise
the first business day thereafter; if mailed by courier, on the first business
day following the date of such mailing; and if mailed by registered or certified
mail, on the third business day after the date of such mailing.
(c) Reproduction of Documents. This Agreement and all documents relating
thereto, including, without limitation, (i) consents, waivers and modifications
relating hereto which may hereafter be executed, (ii) documents received by the
Investors on the Closing Date (except for certificates evidencing the Shares
themselves), and (iii) financial statements, certificates and other information
previously or hereafter furnished to the Investors, may be reproduced by the
Investors by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process and the Investors may destroy any original
document so reproduced. All parties hereto agree and stipulate that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Investor in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(d) Survival. All warranties, representations, and covenants made by the
Investors and the Company herein or in any certificate or other instrument
delivered by any Investor or the Company under this Agreement shall be
considered to have been relied upon by the Company or the Investors, as the case
may be, and shall survive all deliveries to the Investors of the Shares, or
payment to the Company for such Shares, regardless of any investigation made by
the Company or any of the Investors, as the case may be, or on the Company's or
the Investor's behalf. All statements in any such certificate or other
instrument shall
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constitute warranties and representations by the Company hereunder.
(e) Successors and Assigns; No Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties. Nothing in this Agreement shall confer upon any Person not
a party to this Agreement any rights or remedies of any nature or kind
whatsoever under or by reason of this Agreement.
(f) Entire Agreement; Amendment and Waiver. This Agreement, the
Registration Rights Agreement, the Stockholders Agreement and the Certificate of
Incorporation (including the Amended and Restated Certificate) constitute the
entire understandings of the parties hereto and supersede all prior agreements
or understandings with respect to the subject matter hereof among such parties.
This Agreement may be amended, and the observance of any term of this Agreement
may be waived, with (and only with) the written consent of the Company and each
of the Investors.
(g) Severability. In the event that any part or parts of this Agreement
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not affect the remaining
provisions of this Agreement which shall remain in full force and effect.
(h) Obligations Several. Notwithstanding anything to the contrary contained
in this Agreement, the representations and warranties, covenants and other
agreements under this Agreement shall be several, but not joint.
(i) Limitation on Enforcement of Remedies. The Company hereby agrees that
it will not assert against the partners of any of the Investors any claim it may
have under this Agreement by reason of any failure or alleged failure by any of
the Investors to meet its obligations hereunder.
(j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
-15-
Please indicate your acceptance and approval of the foregoing in the space
provided below.
HILLTOPPER HOLDING CORP.
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
ACCEPTED AND APPROVED
AS OF THE 24th DAY OF
FEBRUARY, 2000
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
WARBURG, XXXXXX NETHERLANDS EQUITY PARTNERS I, C.V.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
WARBURG, XXXXXX NETHERLANDS EQUITY PARTNERS II, C.V.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
-00-
XXXXXXX, XXXXXX XXXXXXXXXXX EQUITY PARTNERS III, C.V.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
WELSH, CARSON, XXXXXXXX & XXXXX VI, L.P.
By: /s/ Xxxxxxxx X. Rather
------------------------------
Name: Xxxxxxxx X. Rather
Title: Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: /s/ Xxxxxxxx X. Rather
------------------------------
Name: Xxxxxxxx X. Rather
Title: Attorney-in-Fact
SOUTH ATLANTIC VENTURE FUND II, LIMITED PARTNERSHIP
By: South Atlantic Venture Partners II,
Limited Partnership, General
Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Partner
SOUTH ATLANTIC VENTURE FUND III, LIMITED PARTNERSHIP
By: South Atlantic Venture Partners III,
Limited Partnership, General
Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Partner
-00-
XXXXX XXXXXXXX PRIVATE EQUITY FUND IV, LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners
IV, Limited Partnership, General
Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Partner
SOUTH ATLANTIC PRIVATE EQUITY FUND IV (QP), LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners
IV, Limited Partnership, General
Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Partner
THE XXXXXX PARTNERSHIP, LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
/s/ J. Xxxxxxx Xxxxx
------------------------------
J. Xxxxxxx Xxxxx
/s/ Xxxxxxxx X. Xxxxxx, Xx.
------------------------------
Xxxxxxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxx
------------------------------
Xxxx X. Xxxx
/s/ Xxxx X. Xxxxx, Xx.
------------------------------
Xxxx X. Xxxxx, Xx.
-18-
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
By: /s/ Xxxxxxxx X. Rather
------------------------------
Name: Xxxxxxxx X. Rather
Title: Attorney-in-Fact
-19-
SCHEDULE I
CASH INVESTORS
Number of Number of
Shares of Shares of Price Per
Series A Series B Share of
Preferred Preferred Preferred
Name/Address/Fax No. of Subscriber Stock Stock Stock
---------------------------------- --------- --------- ---------
Warburg, Xxxxxx Equity Partners, L.P. 8,534,813 $5.50
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000 000-0000
Attention: Xxxx Xxxxxxxx
Warburg, Xxxxxx Netherlands 270,946 $5.50
Equity Partners I, C.V.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000 000-0000
Attention: Xxxx Xxxxxxxx
Warburg, Xxxxxx Netherlands 180,631 $5.50
Equity Partners II, C.V.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000 000-0000
Attention: Xxxx Xxxxxxxx
Warburg, Xxxxxx Netherlands 45,158 $5.50
Equity Partners III, C.V.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000 000-0000
Attention: Xxxx Xxxxxxxx
South Atlantic Private Equity 381,818 $5.50
Fund, IV, L.P.
000 Xxxx Xxx Xxxxxx
Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
-00-
Xxxxx Xxxxxxxx Private Equity 527,273 $5.50
Fund, IV (QP), L.P.
000 Xxxx Xxx Xxxxxx
Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
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SCHEDULE II
EXCHANGE INVESTORS
Number of Number of
Shares of Shares of Value per
Series A Series B Number of Share of
Preferred Preferred Exchange Exchange
Name/Address/Fax No. of Subscriber Stock Stock Shares Shares
---------------------------------- ----- ----- ------ ------
Welsh, Carson, Xxxxxxxx & 2,520,193 2,520,193 $5.50
Xxxxx VI, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
WCAS Healthcare Partners, L.P. 81,384 81,384 $5.50
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
South Atlantic Venture Fund II, 798,963 798,963 $5.50
Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
South Atlantic Venture Fund III, 206,214 206,214 $5.50
Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
-22-
Number of Number of
Shares of Shares of Value per
Series A Series B Number of Share of
Preferred Preferred Exchange Exchange
Name/Address/Fax No. of Subscriber Stock Stock Shares Shares
---------------------------------- ----- ----- ------ ------
The Xxxxxx Partnership, 187,500 187,500 $5.50
Limited Partnership
X.X. Xxx 0000
Xxxxxxx, XX 00000,
with a copy to:
The Xxxxxx Partnership,
Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx 49,977 49,977 $5.50
x/x Xxxxx, Xxxxxx, Xxxxxxxx
& Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxx 49,977 49,977 $5.50
x/x Xxxxx, Xxxxxx, Xxxxxxxx
& Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxxx X. Xxxxxxxx 29,977 29,977 $5.50
x/x Xxxxx, Xxxxxx, Xxxxxxxx
& Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
-23-
Number of Number of
Shares of Shares of Value per
Series A Series B Number of Share of
Preferred Preferred Exchange Exchange
Name/Address/Fax No. of Subscriber Stock Stock Shares Shares
---------------------------------- ----- ----- ------ ------
Xxxxxx X. Xxxx 9,686 9,686 $5.50
x/x Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx 10,000 10,000 $5.50
x/x Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxx 10,772 10,772 $5.50
x/x Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Xxxx X. Xxxxxxx 705 705 $5.50
x/x Xxxxx, Xxxxxx, Xxxxxxxx
& Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
X. Xxxxxxx Xxxxx 569,917 569,917 $5.50
c/o Centennial HealthCare Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
-24-
Number of Number of
Shares of Shares of Value per
Series A Series B Number of Share of
Preferred Preferred Exchange Exchange
Name/Address/Fax No. of Subscriber Stock Stock Shares Shares
---------------------------------- ----- ----- ------ ------
Xxxxxxxx X. Xxxxxx, Xx. 83,225 83,225 $5.50
c/o Centennial HealthCare
Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxx X. Xxxx 92,792 92,792 $5.50
c/o Centennial HealthCare Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxx X. Xxxxx, Xx. 8,970 8,970 $5.50
c/o Centennial HealthCare Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
