EXHIBIT (C)(3)
--------------
STOCK SUBSCRIPTION AGREEMENT
----------------------------
STOCK SUBSCRIPTION AGREEMENT dated as of March 24, 1999 (this
"AGREEMENT") by and between, Xxxxxx Xxxxxxx Xxxxxxxx & Co. ("FFT"), on behalf of
Health Care Capital Partners L.P. and as its general partner and on behalf of
Health Care Executive Partners L.P. and as its general partner (collectively,
"BUYERS"), and Yankee Acquisition Corp., a Delaware corporation ("NEWCO").
RECITALS:
---------
Newco and Concentra Managed Care, Inc., a Delaware corporation
("CONCENTRA"), are parties to an Agreement and Plan of Merger dated as of March
2, 1999, and amended and restated as of the date hereof (as so amended, the
"MERGER AGREEMENT"), pursuant to which, upon the terms and subject to the
conditions set forth therein, (i) Newco will merge with and into Concentra (the
"MERGER"), (ii) each outstanding share of common stock, par value $0.01 per
share ("CONCENTRA COMMON STOCK"), of Concentra outstanding immediately prior to
the Merger (other than shares of Concentra Common Stock owned by Concentra or
Newco or their affiliates) will be converted into the right to receive $16.50
per share in cash, without interest, (iii) each outstanding share of common
stock, par value $0.01 per share ("NEWCO COMMON STOCK"), of Newco will be
converted into one share of Concentra Common Stock and (iv) each outstanding
share of Class A common stock, par value $0.01 per share ("NEWCO CLASS A COMMON
STOCK"), of Newco will be converted into one share of Class A common stock, par
value $0.01 per share ("CONCENTRA CLASS A COMMON STOCK"), of Concentra.
All of the issued and outstanding Newco Common Stock is currently
owned by Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. ("WCAS").
Newco desires to issue and sell newly issued shares of Newco Class A
Common Stock to Buyers upon the terms and subject to the conditions hereinafter
set forth.
Buyers have conditioned its purchase of the shares of Newco Class A
Common Stock to be purchased by it hereunder on Newco making certain
representations and warranties to it hereunder and, in order to induce Buyers to
purchase such shares and in connection with the transactions contemplated to
occur on the Closing Date (as defined below), including the Merger, Newco is
willing to make such representations and warranties.
AGREEMENT
---------
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE
PURCHASE AND SALE
-----------------
Section 1.1 PURCHASE AND SALE. Upon the terms and subject to the
conditions of this Agreement, Newco agrees to issue and sell to each Buyer, and
each Buyer agrees to purchase from Newco, the number of shares of newly issued
Newco Class A Common Stock (collectively, the "PURCHASE STOCK") set forth
opposite its name on Schedule I hereto. The purchase price for the Purchase
Stock is $16.50 per share (the "PER SHARE PURCHASE Price") and the aggregate
purchase price for all the Purchase Stock is $30,599,993 (the "AGGREGATE
PURCHASE Price").
Section 2.1 CLOSING. The closing (the "CLOSING") of the purchase and
sale of the Purchase Stock hereunder shall take place at the offices of Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
immediately prior to the consummation of the Merger. At the Closing, (a) FFT, on
behalf of each Buyer, shall deliver to Newco, in immediately available funds,
the Aggregate Purchase Price by wire transfer to an account designated by Newco
not later than one business day prior to the date of the Closing (the "CLOSING
DATE") and (b) Newco shall deliver to each Buyer, certificates for such Buyer's
Purchase Stock, duly registered in the names of each Buyer.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF NEWCO
---------------------------------------
Newco represents and warrants to Buyers as of the date hereof that:
Section 2.1 CORPORATE EXISTENCE AND POWER: NEWLY FORMED CORPORATION.
Newco is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware. Newco was incorporated solely for the
purpose of effectuating the transactions contemplated in the Merger Agreement
(including the transactions contemplated by this Agreement) and has not
conducted any business or entered into any agreements or commitments except with
respect to the foregoing.
Section 2.2 AUTHORIZATION. The execution, delivery and performance by
Newco of this Agreement and the Merger Agreement and the consummation of the
transactions contemplated hereby and thereby are within Newco's corporate powers
and have been duly authorized by all necessary corporate action on the part of
Newco. Each of this Agreement and the Merger Agreement has been duly executed
and delivered by Newco. Each of this Agreement and the Merger Agreement
constitutes a valid and binding agreement of Newco, enforceable against Newco in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies and (iii) with respect to provisions relating to
indemnification arid contribution, as limited by considerations of public
policy.
2
Section 2.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Newco of this Agreement and the Merger Agreement require no
order, license, consent, authorization or approval of, or exemption by, or
action by or in respect of, or notice to, or filing or registration with, any
governmental body, agency or official except for (i) filings under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
ACT"), (ii) the filing with the Securities and Exchange Commission (the "SEC")
of such reports under and such other compliance with the Securities Exchange Act
of 1934, as amended (the "EXCHANGE Act"), and the rules and regulations
thereunder as may be required in connection with the Merger Agreement, this
Agreement and the transactions contemplated thereby and hereby, (iii) the filing
of a certificate of merger with the Secretary of State of the State of Delaware,
(iv) such filings and approvals as may be required by any applicable state
securities "blue sky" or takeover laws, (v) such as have been obtained, or (vi)
except where the failure to obtain any such order, license, consent,
authorization, approval or exemption or give any such notice or make any filing
or registration would not reasonably be expected to adversely affect the ability
of Newco to perform its obligations hereunder or thereunder.
Section 2.4 NONCONTRAVENTION. The execution, delivery and performance
by Newco of this Agreement and the Merger Agreement do not and will not (i)
violate the certificate of incorporation or bylaws of Newco, (ii) violate any
law, rule, regulation, judgment, injunction, order or decree applicable to or
binding upon Newco, (iii) require any consent or other action by any person
under, constitute a default under (with due notice or lapse of time or both), or
give rise to any right of termination, cancellation or acceleration of any right
or obligation of Newco or to a loss of any benefit to which Newco is entitled
under any provision of any agreement or other instrument binding upon Newco or
any of its assets or properties or (iv) result in the creation or imposition of
any material mortgage, lien, pledge, charge, security interest or encumbrance
(each, a "LIEN") on any property or asset of Newco.
Section 2.5 CAPITALIZATION. The authorized capital stock of Newco
consists of 105,000,000 shares of Newco Common Stock, 20,000,000 shares of
preferred stock, par value $0.01 per share and 5,000,000 shares of Newco Class A
Common Stock. Immediately prior to the Closing, the outstanding capital stock of
Newco will be 10 shares of Newco Common Stock and no shares of preferred stock.
Immediately prior to the Closing, WCAS will own all of the issued and
outstanding shares of capital stock of Newco. Immediately after the Closing, but
prior to the effective time of the Merger, the outstanding capital stock of
Newco, will be 23,742,187 shares of Newco Common Stock, 1,854,545 shares of
Newco Class A Common Stock and no shares of preferred stock. Except as set forth
in this Section 2.5 or on Schedule 2.5 there are, and immediately after the
Closing but prior to the Merger there will be, no outstanding (i) shares of
capital stock or voting securities of Newco, (ii) securities of Newco
convertible into or exchangeable for shares of capital stock or voting
securities of Newco, (iii) options or other rights to acquire from Newco, or
other obligation of Newco to issue any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of Newco or (iv) obligation of Newco to repurchase or otherwise
acquire or retire any
3
shares of capital stock or any convertible securities, rights or options of the
type described in clause (i), (ii), or (iii). The Newco Class A Common Stock
shall have the rights and other terms set forth in the Amended and Restated
Charter of Newco attached hereto as Exhibit A.
Section 2.6 LITIGATION. Except as set forth on Schedule 2.6 hereto,
there is no action, suit, investigation or proceeding pending against, or to the
knowledge of Newco, threatened against or affecting Newco before any court or
arbitrator or any governmental body, agency or official which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement or the Merger Agreement or which
would reasonably be expected to have a material adverse effect on the ability of
Newco to perform its obligations under this Agreement or the Merger Agreement or
to consummate the Merger or on the business, properties, financial condition or
results of operations of Concentra after the Merger.
Section 2.7 VALID ISSUANCE OF SECURITIES. The shares of Purchase Stock
which are being issued to Buyers hereunder have been duly and validly authorized
and when issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be fully paid and nonassessable.
ARTICLE 3
REPRESENTATION AND WARRANTIES OF BUYERS
---------------------------------------
Each Buyer represents and warrants to Newco as of the date hereof
that:
Section 3.1 EXISTENCE AND POWER. Such Buyer is a corporation, limited
partnership or limited liability company, as the case may be, duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization.
Section 3.2 AUTHORIZATION. The execution, delivery and performance by
such Buyer of this Agreement and the consummation of the transactions
contemplated hereby are within its corporate, partnership or limited liability
company, as the case may be, powers and have been duly authorized by all
necessary action on the part of such Buyer. This Agreement has been duly
executed and delivered by such Buyer. This Agreement constitutes a valid and
binding agreement of such Buyer, enforceable against such Buyer in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement or creditors' rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies and (iii) with respect to provisions relating to indemnification and
contribution, as limited by considerations of public policy.
4
Section 3.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by such Buyer of this Agreement require no order, license, consent,
authorization or approval of, or exemption by, or action by or in respect of, or
notice to, or filing or registration with, any governmental body, agency or
official except such as have been obtained or except for (i) filings under the
HSR Act, (ii) such filings and approvals as may be required by any applicable
state securities "blue sky" laws, (iii) such as have been obtained, or (iv)
where the failure to obtain any such order, license, consent, authorization,
approval or exemption or give any such notice or make any filing or registration
would not reasonably be expected to adversely affect the ability of such Buyer
to perform its obligations hereunder.
Section 3.4 NONCONTRAVENTION. The execution, delivery and performance
by such Buyer of this Agreement do not and will not (i) violate, if such Buyer
is a corporation, the certificate of incorporation or bylaws of such Buyer, if
such Buyer is a limited partnership, the certificate of limited partnership or
agreement of limited partnership of such Buyer, or, if such Buyer is a limited
liability company, the certificate of formation or limited liability company
agreement of such Buyer, (ii) violate any law, rule, regulation, judgment,
injunction, order or decree applicable to or binding upon such Buyer, (iii)
require any consent or other action by any person under, constitute a default
under (with due notice or lapse of time or both), or give rise to any right of
termination, cancellation or acceleration of any right or obligation of such
Buyer or to a loss of any benefit to which such Buyer is entitled under any
provision of any agreement or other instrument binding upon such Buyer or any of
its assets or properties or (iv) result in the creation or imposition of any
material Lien on any property or asset of such Buyer.
Section 3.5 PURCHASE FOR INVESTMENT. Such Buyer is purchasing its
Purchase Stock for investment for its own account and not with a view to, or for
sale in connection with, any distribution thereof.
Section 3.6 PRIVATE PLACEMENT. () Such Buyer's financial situation is
such that such Buyer can afford to bear the economic risk of holding its
Purchase Stock for an indefinite period of time, and such Buyer can afford to
suffer the complete loss of the investment in its Purchase Stock.
(b) Such Buyer's knowledge and experience in financial and business
matters are such that it is capable of evaluating the merits and risks of the
investment in its Purchase Stock or such Buyer has been advised by a
representative possessing such knowledge and experience.
(c) Such Buyer understands that the Purchase Stock acquired hereunder
is a speculative investment which involves a high degree of risk of loss of the
entire investment therein, that there will be substantial restrictions on the
transferability of the Purchase Stock and that for an indefinite period
following the date hereof there will be no public market for the Purchase Stock
and that, accordingly, it may not be possible for such Buyer to sell the
Purchase Stock in case of emergency or otherwise.
5
(d) Such Buyer and its representatives, including, to the extent it
deems appropriate, its professional, financial, tax and other advisors, have
reviewed all documents provided to them in connection with the investment in the
Purchase Stock, and such Buyer understands and is aware of the risks related to
such investment.
(e) Such Buyer and its representatives have been given the opportunity
to examine all documents and to ask questions of, and to receive answers from,
Newco, Concentra and their respective representatives concerning the terms and
conditions of the acquisition of the Purchase Stock and related matters and to
obtain all additional information which such Buyer or its representatives deem
necessary.
(f) Such Buyer is an "ACCREDITED INVESTOR" as such term is defined in
Regulation D under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
Section 3.7 LITIGATION. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer threatened against
or affecting, such Buyer before any court or arbitrator or any governmental
body, agency or official which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement.
Section 3.8 BROKERS OR FINDERS' FEES. There is no investment banker,
broker, finder or other intermediary which has been retained by, will be
retained by or is authorized to act on behalf of such Buyer who might be
entitled to any fee or commission from Concentra, Newco or such Buyer upon
consummation of the transactions contemplated by this Agreement.
ARTICLE 4
COVENANTS OF NEWCO AND BUYERS
-----------------------------
Section 4.1 STOCKHOLDERS' AND REGISTRATION RIGHTS AGREEMENT. Newco and
each Buyer agree that they shall use their reasonable best efforts to enter into
a stockholders' agreement and a registration rights agreement (the "ANCILLARY
AGREEMENTS") containing the terms set forth on Schedule 4.1.
Section 4.2 FURTHER ASSURANCES. Newco and each Buyer agree that, from
time to time, whether on or after the Closing Date, each of them will execute
and deliver such further instruments of conveyance and transfer and take such
other actions as may be necessary to carry out the purposes and intents of this
Agreement.
ARTICLE 5
CONDITIONS TO CLOSING
---------------------
6
Section 5.1 CONDITIONS TO OBLIGATIONS OF BUYERS AND NEWCO. The
obligations of Buyers and Newco to consummate the transactions contemplated
hereby are subject to the satisfaction of the following conditions:
(a) No provision of any applicable law, rule or regulation and no
judgment, injunction, order or decree by any governmental entity of
competent jurisdiction shall prohibit the consummation of the Closing or
the Merger.
(b) All material actions by or in respect of, or filings with, any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been taken, made or obtained.
(c) Newco shall have received an equity contribution of at least
$346,900,000 from WCAS and affiliated investors.
(d) The conditions to the consummation of the Merger set forth in
Article 6 of the Merger Agreement, other than those to be satisfied at the
effective time of the Merger, shall have been satisfied or waived.
Section 5.2 CONDITIONS TO OBLIGATIONS OF BUYERS. The obligation of
each Buyer to consummate the transactions contemplated hereby is subject to the
satisfaction of the following further conditions:
(a) (i) Newco shall have performed in all material respects all of its
obligations hereunder required to be performed by it on or prior to the
Closing Date and (ii) the representations and warranties of Newco contained
in this Agreement shall be true in all material respects when made and at
and as of the Closing Date, as if made at and as of such date.
(b) Each of Concentra and WCAS shall have executed and delivered the
Ancillary Agreements on terms consistent with Section 4.1 hereof and
reasonably satisfactory to FFT, on behalf of Buyers.
(c) Newco shall not have waived any of the conditions to the Merger
contained in Sections 6.1 or 6.3 of the Merger Agreement nor have altered,
amended or modified the Merger Agreement without the prior consent of FFT,
on behalf of Buyers, which consent shall not be unreasonably withheld.
(d) Arrangements for equity participation, in the surviving
corporation of the Merger, by management of Concentra shall be reasonably
acceptable to FFT, on behalf of Buyers.
7
(e) FFT, on behalf of Buyers, shall have received all documents it may
reasonably request relating to the existence of Newco and the authority of
Newco for this Agreement, all in form and substance reasonably satisfactory
to FFT, on behalf of Buyers.
Section 5.3 CONDITIONS TO OBLIGATION OF NEWCO. The obligation of Newco
to consummate the transactions contemplated hereby is subject to the
satisfaction of the following further conditions:
(a) (i) Each Buyer shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior to
the Closing Date and (ii) the representations and warranties of such Buyer
contained in this Agreement shall be true in all material respects when
made and at and as of the Closing Date, as if made at and as of such date.
(b) Each Buyer and Concentra shall have executed and delivered the
Ancillary Agreements on terms consistent with Section 4.1 hereof and
reasonably satisfactory to Newco.
ARTICLE 6
SURVIVAL OF REPRESENTATIONS AND WARRANTIES: INDEMNIFICATION
-----------------------------------------------------------
Section 6.1 SURVIVAL. Except for the representations and warranties
contained in Sections 2.5 and 2.7, which shall survive indefinitely, the
representations and warranties of the parties hereto contained in this Agreement
shall survive the Closing until twelve months after the Closing Date, and
thereafter shall terminate and be of no further force or effect.
Section 6.2 INDEMNIFICATION. () Newco hereby indemnifies, severally
and not jointly, each Buyer and its affiliates, limited partners, general
partners, directors, officers and employees against and agrees to hold each of
them harmless from any and all damage, loss, liability and expense (including,
without limitation, reasonable expenses of investigation and reasonable
attorneys' fees and expenses in connection with any action, suit or proceeding)
("DAMAGES") incurred or suffered by any such party arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by Newco pursuant to this Agreement; PROVIDED that with respect to any
Buyer, (i) Newco shall not be liable under this Section 6.2(a) unless the
aggregate amount of Damages with respect to all matters referred to in this
Section 6.2(a) for which such Buyer has sought indemnification exceeds $100,000
and then only to the extent of such excess and (ii) the indemnifying parties'
aggregate maximum liability under this Section 6.2(a) shall not exceed the
amount of the Aggregate Purchase Price paid by such Buyer to Newco.
8
(b) Each Buyer hereby indemnifies, severally and not jointly, Newco
and its affiliates, limited partners, general partners, directors, officers
and employees against and agrees to hold each of them harmless from any and
all Damages incurred or suffered by any such party arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to
be performed by such Buyer pursuant to this Agreement; PROVIDED that (i)
such Buyer shall not be liable under this Section 6.2(b) unless the
aggregate amount of Damages with respect to all matters referred to in this
Section 6.2(b) exceeds $100,000 and then only to the extent of such excess
and (ii) such Buyer's maximum liability under this Section 6.2(b) shall not
exceed the amount of Aggregate Purchase Price paid by such Buyer to Newco.
Section 6.3 EXCLUSIVITY. After the Closing, Section 6.2 will provide
the exclusive remedy for any misrepresentation, breach of warranty, covenant or
other agreement or other claim arising out of this Agreement or the transactions
contemplated hereby.
ARTICLE 7
TERMINATION
Section 7.1 GROUNDS FOR TERMINATION. This Agreement may be terminated
at any time prior to the Closing:
(a) by mutual written agreement of Newco and FFT, on behalf of Buyers;
(b) by either Newco, on the one hand, or FFT, on behalf of Buyers, on
the other hand, if the Closing, shall not have been consummated as of the
close of business on August 31, 1999, PROVIDED that the right to terminate
this Agreement under this Section 7.1(b) shall not be available to any
party whose breach of any obligation under this Agreement has been the
cause of or resulted in the failure of the Closing to occur on or before
such date; or
(c) by Newco, on the one hand, or FFT, on behalf of Buyers, on the
other hand, if consummation of the transactions contemplated hereby would
violate any non-appealable final order, decree or judgment of any court or
governmental body having competent jurisdiction.
Section 7.2 EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 7.1, such termination shall be without liability of any
party (or any stockholder, general partner, limited partner, member, director,
officer, employee, agent, consultant or representative of such party) to any of
the other parties to this Agreement and this Agreement shall become void and of
no further force or effect; PROVIDED that if such termination shall result from
the willful (i) failure of either party to fulfill a condition to the
performance of the obligations of the other party, (ii) failure to perform a
covenant of this Agreement or (iii)
9
material breach by either party hereto of any representation or warranty or
agreement contained herein, such party shall be liable for such breach prior to
such termination. Notwithstanding the foregoing, the provisions of Sections 8.3,
8.5, 8.6 and 8.7 shall survive any termination hereof pursuant to Section 7.1.
Section 7.3 RESCISSION. If the Closing shall occur but the Merger
shall not have been consummated by the close of business on the third business
day following the Closing, then the purchase and sale of the Purchase Stock
shall be rescinded, Newco shall return to Buyers the Aggregate Purchase Price
paid by them for the Purchase Stock and Buyers shall return to Newco the
certificates representing the Purchase Stock. Upon any such rescission, the
parties hereto shall be treated for all purposes as if the Closing had not
occurred, including without limitation with respect to rights to terminate this
Agreement as provided in Section 7.1.
ARTICLE 8
MISCELLANEOUS
Section 8.1 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given:
if to Newco, to:
Yankee Acquisition Corp.
c/o Welsh, Carson, Xxxxxxxx & Xxxxx, VIII L.P
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
if to any Buyer, to it:
x/x Xxxxxx Xxxxxxx Xxxxxxxx & Xx.
Xxx Xxxx
10
10 Glenville Street
Greenwich, Conncecticut 06831
Attention: Xxxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
Section . AMENDMENTS AND WAIVERS. () Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and signed in the case of an amendment, by each party to this Agreement, or in
the case of a waiver, by the party against whom the waiver is to be effective.
() No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 8.3 EXPENSES. () All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense,
except that if the Closing shall occur, Newco shall reimburse Buyers for all
documented out-of-pocket expenses incurred by them, including, without
limitation, the reasonable fees and expenses of one counsel for all Buyers, up
to, but not in excess of, $100,000 in the aggregate for all such expenses.
(b) In the event that Newco receives the Company Termination Fee (as
defined in the Merger Agreement) from Concentra, Buyers will be entitled to
(i) a portion thereof (the "PRO RATA PORTION") calculated by multiplying
the amount of the Company Termination Fee less the portions of the
Termination Fee payable to the entities set forth on Schedule 5.4(b) of the
Merger Agreement by a fraction the numerator of which is the total number
of
11
shares set forth on Schedule 1 and the denominator of which is the total
number of shares of Concentra Common Stock and Concentra Class A Common
Stock expected to be outstanding immediately after the Merger as set forth
in Section 2.5 hereof and (ii) reimbursement for all its fees and expenses
to the extent recoverable from Concentra pursuant to Section 5.3 of the
Merger Agreement and the Pro Rata Portion of its fees and expenses actually
reimbursed by Concentra to the extent the total amount of fees and expenses
recoverable from Concentra pursuant to Section 5.3 of the Merger Agreement
exceeds the limitations provided therein.
Section 8.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon any inure to the benefit of the parties hereto and their
respective successors and assigns, PROVIDED that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto (it being agreed that a merger
(including the Merger) shall not be deemed an assignment requiring the consent
of Buyers). Notwithstanding the foregoing, Buyers may assign their rights under
this Agreement or the right to receive any of the Purchased Shares under this
Agreement to any general or limited partner of Buyers or FFT or any affiliates
(as defined in Rule 405 promulgated under the Securities Act) of Buyers or FFT
(collectively, the "FFT PARTIES" and each an "FFT PARTY"), who are reasonably
acceptable to Newco; PROVIDED that any such FFT Party executes an assumption
agreement reasonably satisfactory in form and substance to Newco whereby such
FFT Party makes certain representations and warranties as set forth in this
Agreement and agrees to be bound, to the same extent as its transferor, by the
terms of this Agreement.
Section 8.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
Section 8.6 JURISDICTION. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9.1 shall be deemed
effective service of process on such party.
Section 8.7 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
12
Section 8.8 COUNTERPARTS; THIRD PARTY BENEFICIARIES. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any person other than the parties
hereto any rights or remedies hereunder.
Section 8.9 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 8.10 CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 8.11 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
deemed to be excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were so excluded and shall be enforced
in accordance with its terms to the maximum extent permitted by law.
Section 8.12 INTERPRETATION. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
YANKEE ACQUISITION CORP.
By: /s/ XXXX X. XXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
XXXXXX XXXXXXX XXXXXXXX & CO., LLC.
on behalf of HEALTH CARE CAPITAL
PARTNERS L.P. and as its General Partner
and
on behalf of HEALTH CARE EXECUTIVE
PARTNERS L.P. and as its General Partner
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
14
