OPTION SURRENDER AGREEMENT
EXHIBIT 99.8
This Option Surrender Agreement (this “Surrender Agreement”) is entered into as of
[ ], 2009 by the undersigned in favor and for the benefit of Triumph
HealthCare Holdings, Inc., a Delaware corporation (the “Company”), and RehabCare Group,
Inc., a Delaware corporation (“Parent”).
RECITALS
A. The undersigned holds outstanding and unexercised option agreements (the “Options”)
entitling them to purchase, in the aggregate, such number of shares of common stock of the Company,
par value $0.01 per share (the “Option Shares”) as set forth opposite such undersigned’s
name on Exhibit A hereto.
B. The Company, Parent, RehabCare Group East, Inc., RehabCare Hospital Holdings, LLC,
RehabCare Merger Sub Corporation, and TA Associates, Inc., in its capacity as Securityholder
Representative, have entered into that certain Agreement and Plan of Merger (the “Merger
Agreement”), dated as of the date hereof, pursuant to which the undersigned will be entitled to
certain consideration as described in the Merger Agreement and other documents referenced therein
in exchange for the surrender and cancellation of the Options and the undertaking to be bound by
the obligations described in Section 3 of this Surrender Agreement.
C. Subject to the consummation of the Merger, the undersigned desires to terminate the Options
and undertakes to be bound by the obligations described in Section 3 of this Surrender
Agreement in consideration of the consideration described in the Merger Agreement and the other
documents referenced therein.
Now, therefore, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees as follows:
AGREEMENT
1. Representation and Warranties. The undersigned represents and warrants to the
Company and Parent that: (a) the Options have not been exercised by the undersigned, that these are
the only Options granted to the undersigned by the Company or any of its Subsidiaries; (b) the
undersigned is the sole owner of the Options free and clear of any liens, pledges, mortgages, deeds
of trust, charge, option, right of first refusal, easements, servitudes, proxies, voting trusts or
other agreements, restrictions, security interests, claims, rights of another or encumbrances; (c)
the Options constitute all of the options or other rights to purchase securities of the Company and
its Subsidiaries held by the undersigned; (d) he or she has full legal capacity and power to
execute and deliver this Surrender Agreement and any other agreements or instruments executed by
him or her in connection herewith and to consummate the transactions contemplated herein or
therein; (e) this Surrender Agreement and the other agreements and instruments executed by the
undersigned in connection herewith are valid and binding obligations of the undersigned enforceable
in accordance with their respective terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws
relating to or affecting enforcement of creditors’ rights generally and except as enforcement
thereof is subject to general principles of equity; (f) he or she has executed this Surrender
Agreement voluntarily and without any
duress or undue influence; (g) he or she has read this Surrender Agreement, understands the
terms and
consequences of it and has had adequate time to think about this Surrender Agreement and
discuss it with his or her own counsel and advisors; and (h) he or she is fully aware of the legal
and binding effect of this Surrender Agreement.
2. Termination of Options and Option Shares. The undersigned hereby agrees that,
effective as of the Effective Time and subject to the consummation of the Merger, the Options shall
be automatically exchanged for the right to receive the consideration required to be paid to the
undersigned as set forth and subject to the conditions in the Merger Agreement. The undersigned
hereby agrees that the Options are hereby cancelled and terminated and shall be of no further force
or effect and hereby surrenders all of the undersigned’s rights in the Options and any Option
Shares. The undersigned further agrees not to exercise any vested Options from the date hereof
until the earlier of (a) the consummation of the Merger or (b) the termination of the Merger
Agreement.
3. Merger Agreement Obligations. The undersigned hereby (i) agrees to be bound by all
of the provisions of the Merger Agreement applicable to the Optionholders, (ii) agrees to the
appointment of TA Associates, Inc. as the Securityholder Representative pursuant to Section
10.1 of the Merger Agreement and (iii) acknowledges that TA Associates, Inc. will act on the
undersigned’s behalf as the Securityholder Representative pursuant to the terms of the Merger
Agreement. The undersigned also acknowledges that a portion of the Option Payment will be held in
Escrow Accounts in connection with post-closing purchase price adjustments, reimbursement
obligations and indemnification obligations pursuant to the terms and conditions of the Merger
Agreement. Finally, the undersigned acknowledges that pursuant to Section 10.1 of the
Merger Agreement, in the event that the Representative Expense Fund is insufficient to satisfy the
expenses of the Securityholder Representative, the Securityholder Representative is entitled to
recover any such expenses directly from the Securityholders.
4. Effective Time. For purposes of this Surrender Agreement, “Effective Time” means
the date of the closing of the transactions contemplated by the Merger Agreement. For purposes of
greater clarity, in the event that the Merger Agreement is terminated and therefore the
transactions contemplated by the Merger Agreement are not consummated, at such time, it is agreed
that the Effective Time shall not have occurred and this Surrender Agreement shall be void ab
initio.
5. Withholding. All payments made pursuant to the terms of the Merger Agreement shall
be net of any tax or other amounts required to be withheld by Parent or the Company under
applicable law.
6. Defined Terms. Any capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to such terms in the Merger Agreement.
7. Entire Agreement. This Surrender Agreement, together with the Merger Agreement and
the Escrow Agreement, constitutes the complete and entire understanding between the undersigned,
the Company and Parent with respect to the subject matter of this Surrender Agreement. The terms
of this Surrender Agreement may not be changed, altered, modified or amended, except in a writing
signed by the undersigned and Parent.
8. Severability. Any term or provision of this Surrender Agreement that is invalid or
unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
or
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provisions of this Surrender Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Surrender Agreement in any other jurisdiction. If any provision of
this Surrender Agreement is so broad as to be unenforceable, then the provision will be interpreted
to be only so broad as is enforceable.
9. Governing Law. This Surrender Agreement shall be governed by the internal laws of
the State of Delaware, without regard to the conflict-of-laws provisions thereof.
10. Counterparts; Electronic Transmission. This Surrender Agreement may be executed
in two or more counterparts (any of which may be delivered by facsimile or email transmission
followed promptly by an executed original), each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Surrender Agreement as of
the date and year first above written.
[Signature Page to Option Surrender Agreement]
Exhibit A
| Name | Option Shares | |||
