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Exhibit 4.3
AGREEMENT OF AMENDMENT
AGREEMENT OF AMENDMENT dated as of October 25, 1996 is made by and
among Balanced Care Corporation ("BCC"), and certain of the persons listed on
Attachment I hereto who have executed a counterpart to this Agreement of
Amendment.
WHEREAS, BCC and certain Investors consummated the purchase and sale
of 2,460,877 shares (the "Initial Shares") of BCC's Series B Stock, $.001 par
value (the "Series B Stock"), and the granting of options to purchase up to an
additional 2,460,873 shares of Series B Stock as of September 20, 1996 (the
"Initial Sale");
WHEREAS, in connection with the Initial Sale, BCC and certain
Investors entered into a Series B Stock Purchase Agreement dated as of
September 20, 1996 (the "Stock Purchase Agreement"), and BCC, the Investors
listed in Schedule 1.1 to the Stock Purchase Agreement, the Series A Holder and
certain Common Stockholders entered into a Registration Rights Agreement (the
"Registration Rights Agreement") and BCC, certain Securityholders and certain
Purchasers entered into a Stock Restriction Agreement (the "Stock Restriction
Agreement"), each dated as of September 20, 1996;
WHEREAS, BCC wishes to sell to RS Pacific Venture L.P., Xxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx Xxxxx as Trustee for the trusts of Xxxx X. Xxxxx, Xxxx
Xxxxx, Xxxxx Xxxxx and Xxxxxx Xxxxx (collectively the "Additional Investors"),
and HCO Partners IV-BCC and the Additional Investors and HCO Partners IV-BCC
wish to purchase an aggregate of 264,000 shares of Series B Stock and obtain an
option to purchase up to an additional 264,000 shares of Series B Stock (the
"Additional Shares") on substantially the same terms and conditions as the
Initial Sale;
WHEREAS, the Additional Shares cause the total number of shares of
Series B Stock which BCC wishes to sell and the total number of options to
purchase additional shares of Series B Stock to exceed the 2,460,877 shares of
Series B Stock and the 2,460,873 options contemplated by the Stock Purchase
Agreement;
WHEREAS, the Stock Purchase Agreement contemplated that the
consummation of the sale and purchase of the Series B Stock would take place at
three (3) closings and the sale and purchase of the Series B Stock will now
include a fourth (4th) closing (the "Additional Closing");
WHEREAS, the sale of the Additional Shares to the Additional Investors
and HCO Partners III and the Additional Closing will further the interests of
BCC and BCC's existing stockholders as stockholders of BCC; and
WHEREAS, in order to effect the purchase and sale of the Additional
Shares by the Additional Investors and the Additional Closing, the parties
hereto desire to amend certain of the
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terms of the Stock Purchase Agreement, the Registration Rights Agreement and
the Stock Restriction Agreement;
NOW, THEREFORE, consideration of the premises and the mutual covenants
contained in this Agreement, the parties agree as set forth below.
A. AMENDMENTS TO STOCK PURCHASE AGREEMENT. The Stock Purchase Agreement is
hereby amended as follows:
1. Each of the Additional Investors is deemed to be an "Investor" for
all purposes under the Stock Purchase Agreement, as amended.
2. The first sentence of the first paragraph on page one (1) is
amended by inserting the phrase "and amended on October __, 1996" immediately
after the phrase "dated as of September 20, 1996".
3. The second paragraph on page one (1) is amended by (a) deleting the
number "2,460,875" in the seventh (7th) line and inserting in lieu thereof the
number "2,504,877" and (b) deleting the number "2,460,875" in the eight (8th)
line and inserting in lieu thereof the number "2,504,873."
4. The first paragraph of Section 1.3 is amended to read in its
entirety as follows:
"1.3 Closings. The consummation of the purchase and sale of
the Purchased Shares shall take place at four closings (each
a "Closing" and, collectively, the "Closings"). The first
such Closing (the "First Closing") shall take place on the
date specified on Schedule 1.3 hereto under the heading
"First Closing", the second such closing (the "Second
Closing") shall take place on the date specified on Schedule
1.3 hereto under the heading "Second Closing". The third
closing (the "Third Closing") shall take place on the date
specified on Schedule 1.3 hereto under the heading "Third
Closing". The fourth closing (the "Fourth Closing") shall
take place on or before the day that is 30 days following the
Third Closing. The date of any Closing shall be referred to
herein as a "Closing Date." Each Closing shall take place at
the offices of Xxxxxxxxxxx & Xxxxxxxx LLP, 1500 Xxxxxx
Building, Pittsburgh, Pennsylvania, or at such other time,
date or place as the parties agree."
5. The second paragraph of Section 1.3 is deleted in its entirety.
6. The first sentence of Section 3.2(a) is amended by deleting the
number "4,921,750" and inserting in lieu thereof the number "5,009,750".
7. The fourth line of Section 5.1(f)(ii)(B) is amended by inserting
the phrase "the Agreement of Amendment dated as of October __, 1996 by and
among BCC and the Investors (the "Agreement of Amendment") immediately after
the phrase "Stock Restriction Agreement".
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8. The eighth line of Section 5. 1(f)(ii)(B) is amended by inserting
the phrase "and the Agreement of Amendment" immediately after the phrase "the
Stock Restriction Agreement".
9. Section 5.l(f)(ii)(D) is amended by inserting the phrase "the
Agreement of Amendment," immediately after the phrase "the Stock Restriction
Agreement,".
10. Section 5.1(j) is amended by inserting the phrase "and the
Agreement of Amendment has been executed by holders of a majority of the shares
of the Series B Stock" immediately after the phrase "each of the parties named
therein".
11. Section 6.1(i)(C) is amended by inserting the phrase "or its
affiliates" immediately after the phrase "Meditrust Mortgage Investments, Inc."
12. Schedule 1.1 to the Stock Purchase Agreement shall read in its
entirety as set forth in Attachment I to this Agreement.
13. Schedule 1.3 to the Stock Purchase Agreement shall read in its
entirety as set forth in Attachment II to this Agreement.
14. Exhibit A to the Stock Purchase Agreement shall read in its
entirety as set forth in Attachment III to this Agreement.
B. AMENDMENTS TO THE REGISTRATION RIGHTS AGREEMENT. The Registration Rights
Agreement is hereby amended as follows:
1. Each of the Additional Investors is deemed to be an "Investor" for
all purposes under the Registration Rights Agreement, as amended.
2. The first sentence of the first paragraph is amended by (a)
inserting the phrase "and amended on October __, 1996" after "made as of
September 20, 1996" and (b) deleting the phrase "the date hereof" and inserting
in lieu thereof the phrase "September 20, 1996, as amended October __, 1996".
3. The seventh line of the definition of "Common Shares" in Section 1
is amended by inserting the phrase "or its affiliates" immediately after the
phrase "issuable to Meditrust".
C. AMENDMENTS TO THE STOCK RESTRICTION AGREEMENT. The Stock Restriction
Agreement is hereby amended as follows:
1. Each of the Additional Investors is deemed to be a "Purchaser" for
all purposes under the Stock Restriction Agreement, as amended.
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2. The first paragraph on page one (1) is amended by inserting the
phrase "and amended on October __, 1996" after "made as of the 20th day of
September 1996".
3. The third paragraph on page one (1) is amended by (a) deleting the
number "4,921,750" and inserting in lieu thereof the number "5,009,750" and (b)
deleting the phrase "the date hereof," and inserting in lieu thereof the phrase
"as of September 20, 1996, as amended October __, 1996".
By their execution of this Agreement of Amendment, the Additional
Investors are made parties to, and agree to be bound by the terms and
provisions of, the Stock Purchase Agreement, the Registration Rights Agreement
and the Stock Restriction Agreement, each as amended by this Agreement of
Amendment. In addition, by their execution of this Agreement of Amendment, each
Additional Investor represents and warrants that (i) it has reviewed the
representations and warranties of the Investors contained in Section 2 of the
Stock Purchase Agreement, (ii) that such representations and warranties are
true and correct with respect to such Additional Investor and (iii) that such
Additional Investor hereby makes the same representations and warranties to
BCC.
Except as amended hereby, the Stock Purchase Agreement, the
Registration Rights Agreement and the Stock Restriction Agreement shall remain
in full force and effect.
Except as the context may otherwise require, capitalized terms used
herein and not defined herein shall have the meaning ascribed to such term in
the agreement with respect to which the term is used.
By their execution of this Agreement of Amendment, each of the parties
hereto hereby waive any and all preemptive rights, rights of first refusal or
other rights to purchase capital stock of BCC in connection with BCC's sale of
the Additional Shares or the conversion of any shares of Series B Stock,
including without limitation those rights set forth in Section 6 of the Stock
Purchase Agreement.
This Agreement of Amendment may be signed 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.
[Signature pages follow immediately.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
BALANCED CARE CORPORATION
By /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx, Chairman and CEO
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
INVESTORS:
OMEGA VENTURES II, L.P.
By: Omega Ventures II Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Authorized Signatory
OMEGA VENTURES II CAYMAN, L.P.
By: Omega Ventures II Management, L.L.C.
Its Administrative General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Authorized Signatory
CROSSOVER FUND II, L.P.
By: Crossover Investment Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Authorized Signatory
CROSSOVER FUND IIA, L.P.
By: Crossover Investment Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Authorized Signatory
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BAYVIEW INVESTORS, LTD.
By: Xxxxxxxxx, Xxxxxxxx & Company
Private Equity Group, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Authorized Signatory
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
XXXXX X. XXXXXXXXX AND XXXXX X.
XXXXXXXXX, TRUSTEES,
XXXXXXXXX FAMILY TRUST 3/29/85
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Xxxxx X. Xxxxxxxxx, Trustee
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Xxxxx X. Xxxxxxxxx, Trustee
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
BOSTON SAFE DEPOSIT AND TRUST
COMPANY AS TRUSTEE FOR U S
WEST PENSION TRUST
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trust Officer
BOSTON SAFE DEPOSIT AND TRUST
COMPANY AS TRUSTEE FOR U S
WEST BENEFIT ASSURANCE TRUST
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trust Officer
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
HCO PARTNERS IV-BCC
By: /s/ F. Xxxxx Xxxx
-----------------
F. Xxxxx Xxxx
Managing Partner
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
JULIET CHALLENGER, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
XXXXX X. XXXXXXX, XXXXX XXXXXXXX
XXXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES OF THE XXXXX X. XXXXXXX
TRUST U/A DATED NOVEMBER 18, 1985
By: /s/ X. X. Xxxxxxxxxxxx
------------------------------
Trustee:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST
DATED 12/30/76 FOR THE CHILDREN OF
JULIET XXX XXXXXXX XXXXXXX
By: /s/ X. X. Xxxxxx
------------------------------
Trustee:
By: /s/ X. X. Xxxxxxxxxxxx
------------------------------
Trustee:
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST
DATED 12/30/76 FOR THE CHILDREN OF
XXXXXX XXXXXXX XXXXXX
By: /s/ X. X. Xxxxxx
------------------------------
Trustee
By: /s/ X. X. Xxxxxxxxxxxx
------------------------------
Trustee
XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST
DATED 12/30/76 FOR THE CHILDREN OF
XXXXXXX XXXXXXX XXXXXXX
By: /s/ X. X. Xxxxxx
------------------------------
Trustee:
By: /s/ X. X. Xxxxxxxxxxxx
------------------------------
Trustee:
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XXXXXX X. XXXXXX AND X.X. XXXXXXXXXXXX,
TRUSTEES UNDER AGREEMENT OF TRUST
DATED 12/30/76 FOR THE CHILDREN OF XXXXX
X. XXXXXXX, XX.
By: /s/ X.X. Xxxxxx
--------------------------------
Trustee:
By: /s/ X.X. Xxxxxxxxxxxx
--------------------------------
Trustee:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
DBH SEC IV, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing General Partner
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
MEDITRUST MORTGAGE INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx, Esq.
Title: Senior Vice President
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
R.S. PACIFIC VENTURE LP
By: Xxxxxxxxx, Xxxxxxxx & Company, L.L.C.
By: /s/ [Illegible]
-------------------------------
Authorized Signatory
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
/s/ Xxx Xxxxxx
----------------------------------
Xxx Xxxxxx
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
XXXX X. XXXXX IRREVOCABLE GRANTOR
TRUST U/A/D/ 2/22/95
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx, Trustee
XXXX XXXXX IRREVOCABLE GRANTOR
TRUST U/A/D 2/23/95
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx, Trustee
XXXXX XXXXX IRREVOCABLE GRANTOR
TRUST U/A/D 2/23/95
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx, Trustee
XXXXXX XXXXX IRREVOCABLE GRANTOR
TRUST U/A/D/ 2/23/95
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx, Trustee
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Amendment as of the day and year first above written.
/s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx
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