STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as
of the 26th day of March, 1997 by and between Transworld Home
HealthCare, Inc., a New York corporation (the "Company"), and
Hyperion Partners II L.P., a Delaware limited partnership (the
"Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Shares.
1.1 Sale and Issuance of Shares. Subject to the terms
and conditions of this Agreement, at the Closing (as
hereinafter defined), the Investor agrees to purchase and
the Company agrees to sell and issue to the Investor
1,234,176 shares (the "Shares") of common stock, par value
$.01 per share, of the Company (the "Common Stock"). As
full payment for the Shares, the Investor agrees to assign
and transfer to the Company, without recourse and without
representation or warranty (except as expressly set forth
herein), the following:
(a) $12,396,948 of face amount of accounts
receivable originally owed by Health Management, Inc.
("HMI") to FoxMeyer Corporation and its subsidiaries
and incurred on or before November 13, 1996, and
assigned to the Investor by California Golden State
Finance Company pursuant to an Agreement of Transfer of
Receivables dated November 19, 1996, a copy of which
has been provided to the Company, together with any
rights of the Investor under such Agreement that are
assignable (the "FoxMeyer Receivable"); and
(b) $2,800,000 of face amount of accounts
receivable originally owed by HMI to Bindley Western
Industries, Inc. ("Bindley") and assigned to the
Investor by Bindley pursuant to a Purchase and Sale
Agreement dated December 20, 1996, a copy of which has
been provided to the Company, together with any rights
of the Investor under such Agreement that are
assignable (the "Bindley Receivable" and, together with
the FoxMeyer Receivable, the "HMI Receivables").
1.2 Closing. The purchase and sale of the Shares
shall take place at the offices of Proskauer Xxxx Xxxxx &
Xxxxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
within 15 days following the satisfaction of the conditions
set forth in Sections 4 and 5, or at such other time and
place as the Company and the Investor mutually agree upon
orally or in writing (which time and place are designated as
the "Closing"). At the Closing, in addition to satisfying
the other conditions set forth herein, the Company shall
deliver to the Investor one or more certificates
representing the Shares, against delivery to the Company by
the Investor of a duly executed instrument assigning the HMI
Receivables to the Company.
2. Representations and Warranties of the Company. The
Company hereby represents and warrants to, and agrees with, the
Investor that:
2.1 Organization, Good Standing and Qualification.
The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
New York. The Company has all requisite power and authority
to own, lease, license and use its properties and assets and
to carry on its business as now conducted and as proposed to
be conducted. The Company has all requisite power and
authority to enter into and perform this Agreement and the
transactions contemplated hereby.
2.2 Authorization. All corporate action on the part
of the Company and its officers, directors and shareholders
necessary for the authorization, execution and delivery of
this Agreement, the performance of all obligations of the
Company hereunder and the authorization, sale, issuance and
delivery of the Shares has been taken, except for the
approval of the shareholders of the Company which is
required by Rule 4460(i)(1)(C)(i) of the National
Association of Securities Dealers, Inc. (the "NASD") for
continued trading of the Company's securities on the
National Association of Securities Dealers Automated
Quotation/National Market System ("Shareholder Approval").
This Agreement constitutes the valid and legally binding
obligation of the Company, enforceable in accordance with
its terms, except (i) as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) as
enforceability may be limited by laws relating to the
availability of specific performance, injunctive relief or
other equitable remedies.
2.3 Valid Issuance of Shares.
(a) The Shares, when issued, sold and delivered in
accordance with the terms hereof and for the consideration
expressed herein, (i) will be duly and validly issued and
fully paid and nonassessable, (ii) will be free of any
pledges, liens, security interests, claims or other
encumbrances of any kind, (iii) will be issued in compliance
with all applicable federal and state securities laws, and
(iv) will not be issued in violation of any preemptive
rights of shareholders. The Shares have been duly and
validly reserved for issuance.
(b) The outstanding shares of Common Stock are all
duly and validly authorized and issued, fully paid and
nonassessable, and were issued in compliance with all
applicable federal and state securities laws.
2.4 Governmental Consents. No consent, approval,
order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state
or local governmental authority on the part of the Company
or any of its subsidiaries is required in connection with
the consummation of the transactions contemplated by this
Agreement except for (i) filing with the Securities and
Exchange Commission on Form 10-C; (ii) Shareholder Approval;
and (iii) such filings as have been made.
2.5 Compliance with Other Instruments. The execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will
not result in a violation of, or be in conflict with, or
constitute, with or without the passage of time or the
giving of notice or both, a default under, any provision of
the Company's certificate of incorporation, as amended, or
bylaws, as amended, or any judgment, order, writ or decree,
or any contract, agreement or instrument, or require any
consent, waiver or approval thereunder, or give rise to a
right to terminate or accelerate the performance required
thereby, or constitute an event which results in the
creation of any lien, charge or encumbrance upon any asset
of the Company.
2.6 Registration Rights Agreement. The Shares are
"Registrable Securities" as that term is used in the
Registration Rights Agreement dated as of May 29, 1996
between the Company and the Investor (the "Registration
Rights Agreement"), and are entitled to all of the benefits
of the Registration Rights Agreement, except that the
Investor may not require the Company to effect the
registration of the Shares prior to the first anniversary of
the date of this Agreement.
2.7 SEC Documents. The Company has provided the
Investor with copies of its Annual Report on Form 10-K for
the fiscal year ended October 31, 1996 and its Quarterly
Report on Form 10-Q for the quarter ended January 31, 1997
(collectively, the "SEC Documents"), each as filed with the
Securities and Exchange Commission. On the date of their
respective filings, such SEC Documents complied in all
material respects with the requirements of the Securities
Exchange Act of 1934, as amended, and none of such SEC
Documents contained any untrue statement of a material fact
or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
2.8 Financial Statements. The Company has delivered
to the Investor its audited consolidated financial
statements (consolidated balance sheet and consolidated
statements of operations, changes in stockholders' equity
and cash flows) at October 31, 1996 and for the year then
ended and its unaudited financial statements (consolidated
balance sheet and consolidated statement of operations and
cash flows) at January 31, 1997 and for the three-month
period then ended (collectively the "Financial Statements").
The Financial Statements are complete and correct in all
material respects and have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis throughout the periods indicated. The
Financial Statements accurately describe the financial
condition and operating results of the Company and its
subsidiaries as of the dates, and for the periods, indicated
therein, subject, in the case of the unaudited financial
statements, to normal year-end audit adjustments which will
not in the aggregate be material.
2.9 No Material Adverse Changes. Except as disclosed
in the SEC Documents (and, to the extent the following
representation relates to HMI, except as previously
disclosed to the Investor), since January 31, 1997, there
has been no material adverse change in the assets,
properties, business, operations, condition (financial or
otherwise) or prospects of the Company and its subsidiaries
and the Company has no knowledge of any event which is
likely to result in any such change. To the extent the
foregoing representation relates to HMI, it is being made to
the best knowledge of the Company.
2.10 Disclosure. The Company has fully provided the
Investor or its counsel with all the information which the
Investor has requested for deciding whether to purchase the
Shares and all information which the Company believes is
reasonably necessary to enable the Investor to make such
decision. Neither this Agreement nor any other statements
or certificates made or delivered in connection herewith
contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
herein or therein not misleading.
3. Representations and Warranties of the Investor. The
Investor hereby represents and warrants to the Company that:
3.1 Authorization. The Investor has all requisite
power and authority to enter into this Agreement. This
Agreement has been duly executed and delivered and
constitutes the Investor's valid and legally binding
obligation, enforceable in accordance with its terms, except
(i) as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of
creditors' rights generally and (ii) as enforceability may
be limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
3.2 Purchase Entirely for Own Account. The Shares to
be purchased by the Investor will be acquired for investment
for its own account, and, except as contemplated by the
Registration Rights Agreement or otherwise in accordance
with applicable securities laws, not with a view to the
resale or distribution of any part thereof and without the
present intention of selling, granting any participation in,
or otherwise distributing the same.
3.3 Investment Experience. The Investor can bear the
economic risk of its investment and has such knowledge and
experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment
in the Shares.
3.4 Restricted Securities. The Investor understands
that the Shares it is purchasing are characterized as
"restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under
such laws and applicable regulations such securities may be
resold without registration under the Securities Act of
1933, as amended (the "Act"), only in certain limited
circumstances. In this connection, the Investor represents
that it is familiar with Rule 144 of the Securities and
Exchange Commission, as presently in effect, and understands
the resale limitations imposed thereby and by the Act.
3.5 Legends. The Investor understands that the
certificates evidencing the Shares will bear the following
legend:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER
SUCH SHARES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT OR SUCH LAWS AND THE RULES AND
REGULATIONS THEREUNDER."
The Shares shall not be required to bear such legend if
an opinion of counsel reasonably satisfactory to the Company
is delivered to the Company to the effect that neither the
legend nor the restrictions on transfer contained in this
Agreement are required to insure compliance with the Act.
Whenever, pursuant to the preceding sentence, any
certificate for any of the Shares is no longer required to
bear the foregoing legend, the Company may, and if requested
by the holder thereof, shall, issue to the holder, at the
Company's expense, a new certificate not bearing the
foregoing legend.
3.6 Ownership of HMI Receivables. The Investor owns
and has good title to the HMI Receivables, free and clear of
all liens, claims, security interests and encumbrances.
4. Conditions to the Investor's Obligations at Closing.
The obligations of the Investor under this Agreement are subject
to the fulfillment on or before the Closing of each of the
following conditions:
4.1 Representations and Warranties. The
representations and warranties of the Company contained in
Section 2 shall be true in all material respects on and as
of the Closing with the same effect as though such
representations and warranties had been made on and as of
the Closing.
4.2 Performance. The Company shall have performed and
complied with all agreements, covenants, obligations and
conditions contained in this Agreement in all material
respects that are required to be performed or complied with
by it on or before the Closing.
4.3 Compliance Certificate. The President or Chief
Executive Officer of the Company shall deliver to the
Investor at the Closing a certificate certifying that the
conditions specified in Sections 4.1, 4.2, 4.5, 4.8, 4.10
and 4.11 have been fulfilled.
4.4 Qualifications; Litigation. All authorizations,
approvals or permits, if any, of any governmental authority
or regulatory body that are required in connection with the
lawful issuance and sale of the Shares pursuant to this
Agreement shall be duly obtained and effective as of the
Closing. No federal, state or local regulatory or other
governmental authority shall have taken any action or issued
any statement, written or oral, to the effect that the
transactions contemplated to be taken at the Closing may not
be consummated as currently structured, which action or
statement, in the reasonable judgment of the Investor, makes
proceeding with the transactions contemplated by this
Agreement inadvisable. There shall not have been instituted
or threatened any legal proceeding relating to, or seeking
to prohibit or otherwise challenge, this Agreement or the
consummation of the transactions contemplated by this
Agreement, or seeking to obtain substantial damages with
respect thereto.
4.5 Consents and Coordination. All third party
consents and waivers that are required in connection with
the Closing under this Agreement, and the consummation of
the transactions contemplated hereby, shall be duly obtained
and effective as of the Closing.
4.6 Proceedings and Documents. All corporate and
other proceedings in connection with the transactions
contemplated at the Closing and all documents incident
thereto shall be satisfactory in form and substance to the
Investor, and the Investor shall have received all such
counterpart original and certified or other copies of such
documents as it may reasonably request.
4.7 Opinion of Company Counsel. Xxxx, Marks & Xxxxx
LLP, counsel for the Company, shall have delivered an
opinion which is addressed to the Investor, dated as of the
Closing and substantially in the form delivered pursuant to
the Unit Purchase Agreement dated as of November 20, 1995
between the Company and the Investor (the "Unit Purchase
Agreement").
4.8 Banks Waiver and Consent. The Company shall have
received, in form and substance satisfactory to the
Investor, (i) the waiver of the lenders (the "Banks") party
to the Credit Agreement dated as of July 31, 1996, as
amended (the "Credit Agreement") among the Company, the
Banks and Bankers Trust Company, as Agent, of any right the
Banks may have to the proceeds of the transactions
contemplated hereby to prepay outstanding indebtedness of
the Company under the Credit Agreement, (ii) the consent of
the Banks to the issuance and sale of the Shares and waiver
of any events of default caused in connection therewith, and
(iii) such other consents and waivers of the Banks as may be
required in connection with the transactions hereunder.
4.9 Xxxx-Xxxxx-Xxxxxx. Any applicable waiting periods
in respect of the transactions contemplated by this
Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, shall have expired at or prior to
the Closing.
4.10 Shareholder Meeting. A special or annual meeting
of shareholders of the Company (the "Shareholder Meeting")
shall have been duly called and held at which meeting the
shareholders of the Company shall have had an opportunity to
vote on a proposal to approve this Agreement and the
transactions contemplated hereby and at the Shareholder
Meeting, Shareholder Approval shall have obtained.
4.11 Paribas Consent. The Company shall have received,
in form and substance satisfactory to the Investor, the
consent of Paribas Principal, Inc. to this Agreement and the
Registration Rights Agreement.
5. Conditions to the Company's Obligations at the Closing.
The obligations of the Company to the Investor under Section 1 of
this Agreement are subject to the fulfillment on or before the
Closing of the following conditions, any of which may be waived
by the Company:
5.1 Representations and Warranties. The
representations and warranties of the Investor contained in
Section 3 shall be true in all material respects on and as
of the Closing with the same effect as though such
representations and warranties had been made on and as of
the date of the Closing.
5.2 Payment of Purchase Price. The Investor shall
have delivered to the Company a duly executed instrument
assigning the HMI Receivables to the Company.
5.3 Performance. The Investor shall have performed
and complied with all agreements, covenants, obligations and
conditions contained in this Agreement in all material
respects that are required to be performed or complied with
by it on or before the Closing.
5.4 Qualifications; Litigation. All authorizations,
approvals or permits, if any, of any governmental authority
or regulatory body that are required in connection with the
lawful issuance and sale of the Shares pursuant to this
Agreement shall be duly obtained and effective as of the
Closing. The Shareholder Approval shall be duly obtained
and effective as of the Closing. There shall not have been
instituted or threatened any legal proceeding relating to,
or seeking to prohibit or otherwise challenge, this
Agreement or the consummation of the transactions
contemplated by this Agreement, or seeking to obtain
substantial damages with respect thereto.
5.5 Banks Waiver and Consent. The Company shall have
received, in form and substance satisfactory to the Company,
(i) the waiver of the Banks of any right they may have to
the proceeds of the transactions contemplated hereby to
prepay outstanding indebtedness of the Company under the
Credit Agreement, (ii) the consent of the Banks to the
issuance and sale of the Shares and waiver of any events of
default caused in connection therewith, and (iii) such other
consents and waivers of the Banks as may be required in
connection with the transactions hereunder.
5.6 Xxxx-Xxxxx-Xxxxxx. Any applicable waiting periods
in respect of the transactions contemplated by this
Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, shall have expired at or prior to
the Closing.
5.7 Consents and Coordination. All consents and
waivers that are required in connection with the Closing
under this Agreement, and the consummation of the
transactions contemplated hereby, shall be duly obtained and
effective as of the Closing.
5.8 Paribas Consent. The Company shall have received,
in form and substance satisfactory to the Company, the
consent of Paribas Principal, Inc. to this Agreement and the
Registration Rights Agreement.
6. Covenants of the Company. The Company covenants and
agrees with the Investor as follows:
6.1 Advice of Changes. The Company will promptly
advise the Investor in writing of (i) any event occurring
subsequent to the date of this Agreement which would render
any representation or warranty of the Company contained in
this Agreement, if made on or as of the date of such event
or the date of the Closing, untrue or inaccurate in any
material respect and (ii) any material adverse change in the
business of the Company and its subsidiaries taken as a
whole.
6.2 Information. The Company will deliver to the
Investor the information specified in Section 6.9 of the
Unit Purchase Agreement (as in effect on the date hereof),
unless the Investor at any time specifically requests that
such information not be delivered to it.
6.3 Observer and Director Rights. The Company will
afford to the Investor the observer, director and other
rights specified in Sections 6.11 and 8.1(a) of the Unit
Purchase Agreement (as in effect on the date hereof).
6.4 Listing Application. The Company shall prepare
and file with the NASD an Additional Listing Application, in
the form and within the time period prescribed by the NASD,
with respect to the listing of the Shares.
6.5 Publicity. Except as may be required by law, the
Company shall not use the name of, or make reference to, the
Investor or any of its affiliates in any press release or in
any public manner without the Investor's prior written
consent.
6.6 Certain Covenants Relating to Shareholder Approval
Requirement. (a) The Company will take all action necessary
in accordance with applicable law and its Certificate of
Incorporation and By-laws to convene a meeting of its
shareholders as promptly as practicable to consider and vote
upon the approval of this Agreement and the transactions
contemplated hereby. The Board of Directors of the Company
shall recommend such approval to the shareholders of the
Company and the Company shall take all lawful actions to
solicit such approval. The Company represents and warrants
to, and agrees with, the Investor that the Investor may vote
at the Shareholder Meeting in any manner as it, in its sole
discretion, may choose, pursuant to Section 7.2(d) of the
Unit Purchase Agreement.
(b) As soon as practicable, the Company shall file a
proxy statement in preliminary and definitive form with the
Securities and Exchange Commission in connection with the
Shareholder Meeting. The Investor agrees to assist and
cooperate with the Company in the preparation of the proxy
statement. The definitive proxy statement ("Proxy
Statement") for the Shareholder Meeting shall be mailed to
shareholders as soon as practicable. The Company represents
and warrants to the Investor that the Proxy Statement will
comply in all material respects with the requirements of the
Exchange Act, and the applicable rules and regulations
thereunder, and that the Proxy Statement will contain no
untrue statement of any material fact and will not omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
7. Indemnification. The Company agrees to indemnify the
Investor and its general and limited partners, and each officer,
director, employee, partner, member, agent and affiliate of the
Investor and its general and limited partners (the "Indemnified
Parties") for, and hold each Indemnified Party harmless from and
against: (i) any and all damages, losses, claims and other
liabilities of any and every kind, including, without limitation,
judgments and costs of settlement, and (ii) any and all out-of-
pocket costs and expenses of any and every kind, including,
without limitation, reasonable fees and disbursements of one
counsel for such Indemnified Parties (selected by the Investor)
(all of which expenses periodically shall be reimbursed as
incurred), in each case, arising out of or suffered or incurred
in connection with (A) any investigative, administrative or
judicial proceeding or claim brought or threatened relating to or
arising out of the Investor's purchase of the Shares, or this
Agreement, the Registration Rights Agreement, or the transactions
contemplated hereby and thereby, or (B) any material inaccuracy
or alleged inaccuracy in any representation or warranty of the
Company made or incorporated by reference in this Agreement or
any material breach or alleged breach by the Company of any
covenant or agreement made or incorporated by reference in this
Agreement or the Registration Rights Agreement.
8. Termination.
8.1 Termination Prior to Closing. This Agreement may
be terminated at any time prior to the Closing:
(a) by the mutual consent of the Investor and the
Company;
(b) by the giving of notice by the Investor or the
Company at any time after August 31, 1997 (or such later
date as shall have been agreed to in writing by the parties
hereto), if at the time notice of such termination is given
the Closing shall not have been consummated; or
(c) by the Investor, if there has been a material
misrepresentation or material breach on the part of the
Company in any of the representations, warranties, covenants
or agreements of the Company set forth herein, or if there
has been any material failure on the part of the Company to
comply with its obligations hereunder, or by the Company if
there has been a material misrepresentation or material
breach on the part of the Investor in any of the
representations, warranties, covenants or agreements of the
Investor set forth herein, or if there has been any material
failure on the part of the Investor to comply with its
obligations hereunder.
8.2 Liability Upon Termination.
(a) In the event of termination of this Agreement
pursuant to Sections 8.1(a) or 8.1(b), no party hereto shall
have any liability or further obligation to any other party
hereto except as provided in Sections 7, 9.7 and 9.8.
(b) In the event of termination pursuant to Section
8.1(c), (i) if the Investor is the non-breaching party, the
Investor shall be entitled to reimbursement of expenses as
set forth in Section 9.8 and (ii) the non-breaching party
shall have the right to pursue all rights and remedies
available to it hereunder or otherwise provided at law or
equity, including without limitation, the right to seek
specific performance and money damages.
9. Miscellaneous.
9.1 Survival of Warranties. The warranties,
representations, covenants and agreements of the Company and
the Investor contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement
and the Closing. Neither any investigation by or on behalf
of the Investor nor the receipt by the Investor of any data
or information from the Company, shall in any way affect the
right of the Investor to rely on the representations,
warranties, covenants and agreements of the Company or the
right of the Investor to terminate this Agreement as
provided in Section 8.
9.2 Successors and Assigns. The Investor and each
assignee of the Investor may, without the consent of the
Company, assign its rights under this Agreement, in whole or
in part, in connection with any sale or transfer to an
affiliate or a partner, and the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended
to confer upon any person other than the parties hereto or
their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided in this
Agreement.
9.3 Governing Law. This Agreement shall be governed
by and construed under the laws of the State of New York as
applied to agreements among New York residents entered into
and to be performed entirely within New York.
9.4 Counterparts. This Agreement may be executed 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.
9.5 Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are
not to be considered in construing or interpreting this
Agreement.
9.6 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon receipt
by the party to be notified or five days after deposit with
the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be
notified (i) if to the Company, at the following address:
00 Xxxxxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Fine
with a copy to:
Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
(ii) if to the Investor, at the following address:
00 Xxxxxxx Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 11553-3600
Attn: Xxxxx X. Xxxx
with a copy to:
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx
or at such other address as any of the parties may designate
by 10 days' advance written notice to the other parties.
9.7 No Finder's Fee. Each party represents that it is
not, and will not be, obligated for any finder's fee or
commission in connection with this transaction.
The Investor agrees to indemnify and hold harmless the
Company from any liability for any commission or
compensation in the nature of a finder's fee (and the costs
and expenses of defending against such liability or asserted
liability) for which the Investor or any of its officers,
employees or representatives is responsible.
The Company agrees to indemnify and hold harmless the
Investor from any liability for any commission or
compensation in the nature of a finder's fee (and the costs
and expenses of defending against such liability or asserted
liability) for which the Company or any of their respective
officers, employees or representatives is responsible.
9.8 Expenses. The Company agrees to pay all out-of-
pocket fees and reasonable expenses incurred by the Investor
in connection with this Agreement and the transactions
contemplated hereby (whether or not the transactions
contemplated hereby are consummated) including, without
limitation, (i) the reasonable fees and expenses of counsel
for the Investor incurred in connection with this Agreement
and the transactions contemplated hereby (including the
reasonable fees and expenses of Proskauer Xxxx Xxxxx &
Xxxxxxxxxx LLP, and including, without limitation, any legal
fees and expenses relating to any future waiver, consent or
amendment, whether or not any such future action is given or
consummated) and (ii) all filing fees relating to filings
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1974, as amended.
9.9 Amendments and Waivers. Any term of this
Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a
particular instance and either retroactively or
prospectively), only with the written consent of the
Investor and the Company.
9.10 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law,
such provision shall be excluded from this Agreement and the
balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in
accordance with its terms.
9.11 Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to
the subject matter hereof.
9.12 Equitable Adjustments. Prior to the consummation
of the Closing, all number of Shares referred to herein
shall be equitably adjusted to account for stock splits,
stock dividends, mergers and similar corporate events.
[END OF TEXT]
IN WITNESS WHEREOF, the parties have executed this
agreement as of the date first above written.
"COMPANY"
TRANSWORLD HOME HEALTHCARE, INC.
By: /s/Xxxxxx X. Fine
Name: Xxxxxx X. Fine
Title: President
"THE INVESTOR"
HYPERION PARTNERS II L.P.
By: HYPERION VENTURES II L.P.,
its General Partner
By: HYPERION FUNDING II CORP.,
its General Partner
By: /s/Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Executive Vice President
