EXHIBIT 4.5
IRREVOCABLE WAIVER
THIS IRREVOCABLE WAIVER (this "Waiver"), dated as of April 12,
2002, is granted by CERBERUS PARTNERS, L.P., a New York limited partnership
("Cerberus"), FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), and XXXXXXX, XXXXX & CO., a New York limited partnership
("Goldman") (Cerberus, Foothill, and Goldman are individually referred to herein
as a "Preferred Stockholder" and collectively referred to herein as the
"Preferred Stockholders"), in favor of CORAM, INC., a Delaware corporation (the
"Company").
RECITALS:
WHEREAS, in order to maintain compliance with the Omnibus
Budget Reconciliation Act of 1993 (commonly referred to as "Xxxxx II") for 2001,
the Company entered into an Exchange Agreement, dated as of December 29, 2000
(the "December 2000 Exchange Agreement"), with Cerberus, Foothill, and Xxxxxxx
Sachs Credit Partners L.P. ("GSCP") (Cerberus, Foothill and GSCP are
individually referred to herein as a "Noteholder" and collectively referred to
herein as the "Noteholders"), pursuant to which the Noteholders exchanged
certain indebtedness under their Series A Senior Subordinated Notes and Series B
Senior Subordinated Convertible Notes for their pro rata share of approximately
905 shares of Coram, Inc. Series A Preferred Stock, $0.001 par value per share
(the "Series A Preferred Stock"); and
WHEREAS, in connection with the December 2000 Exchange
Agreement, the Company (a) filed a Certificate of Designation for the Series A
Preferred Stock with the Delaware Secretary of State on December 29, 2000 (the
"Certificate of Designation"); (b) amended and restated the Bylaws of the
Company on December 29, 2000 (the "First Amended and Restated Bylaws"); and (c)
entered into a Stockholder Agreement with the Preferred Stockholders on December
29, 2000 (the "Stockholder Agreement"); and
WHEREAS, in order to maintain compliance with Xxxxx II for
2002, the Company entered into an Exchange Agreement, dated as of December 31,
2001 (the "December 2001 Exchange Agreement"), with the Noteholders, pursuant to
which the Noteholders exchanged certain indebtedness under their Series A Senior
Subordinated Notes for their pro rata share of approximately 189.6 shares of the
Series A Preferred Stock; and
WHEREAS, in connection with the December 2001 Exchange
Agreement, the Company (a) filed a Certificate of Amendment to the Certificate
of Designation with the Delaware Secretary of State on December 31, 2001 (the
"First Amended and Restated Certificate of Designation"); (b) amended and
restated the First Amended and Restated Bylaws of the Company on December 31,
2001 (the "Second Amended and Restated Bylaws"); and (c) entered into an
Amendment No. 1 to Stockholder Agreement with the Preferred Stockholders on
December 31, 2001 (the "Amendment No. 1") (the Stockholder Agreement, as amended
by the Amendment No. 1, is referred to herein as the "Amended Stockholder
Agreement"); and
WHEREAS, in furtherance of the December 2000 Exchange
Agreement and the December 2001 Exchange Agreement and in order to continue to
maintain compliance with Xxxxx II, the Preferred Stockholders are willing to
irrevocably and permanently waive certain voting rights with respect to the
Series A Preferred Stock and certain other rights to appoint and elect members
of the Company's board of directors (the "Board"), in each case as more fully
set forth herein.
NOW, THEREFORE, for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the Preferred Stockholders hereby agree as follows:
SECTION 1. IRREVOCABLE WAIVER. The Preferred Stockholders, in
their capacity as holders of the Preferred Stock, hereby irrevocably and
permanently waive (and, therefore, irrevocably and permanently agree that they
do not have and will not be able to exercise) any voting rights or rights to
appoint or elect members of the Board that are or would be inconsistent with the
terms of the First Amended and Restated Certificate of Designation, the Second
Amended and Restated Bylaws and the Amended Stockholder Agreement as if the
following amendments were made thereto and were in full force and effect:
(a) Amendment and restatement of Section 5 [Voting Rights] of
the First Amended and Restated Certificate of Designation in its entirety as
follows:
5. Voting Rights. In addition to any voting rights provided by
law (which rights, except as may be prohibited by law, are subject to
the provisions for dilution and the limitations set forth in Section
5(a) hereof), the holders of shares of Preferred Stock shall have the
following voting rights:
(a) Subject to the provisions for dilution and the
limitations hereinafter set forth, so long as any of the
Preferred Stock is outstanding, each share of Preferred Stock
shall entitle the holder thereof to vote on all matters voted
on by the holders of Common Stock, voting together as a single
class with other shares entitled to vote at all meetings of
the stockholders of the Company. The number of votes which a
holder of Preferred Stock is entitled to cast, as the same may
be adjusted from time to time as hereinafter provided (which
adjustment is subject to the limitations set forth in this
Section 5(a)), is hereinafter referred to as the "Vote
Multiple," which, as of the first of the Original Issue Dates,
will be equal to one per each share of Preferred Stock. In the
event the Corporation shall at any time after the first of the
Original Issue Dates declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a
subdivision or split or a combination, consolidation or
reverse split of the outstanding shares of Common Stock into a
greater or lesser number of shares of Common Stock, or issue
additional shares of Common Stock at a purchase price which is
less than the Appraised Value of such shares on the date of
issuance, then in each such case the Vote Multiple thereafter
applicable to the determination of the number of votes per
share which holders of shares of Preferred Stock are entitled
to cast after such event shall be the Vote Multiple
immediately prior to such event multiplied by a fraction the
numerator of which is the number of shares of Common Stock and
Preferred Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common
Stock and Preferred Stock that were outstanding immediately
prior to such event. Notwithstanding
the foregoing or any other provision to the contrary set forth
in the Certificate of Incorporation or By-laws of the Company
or this Certificate of Designation or in any other document
relating to the voting rights of the holders of the shares of
the Preferred Stock, the "Vote Multiple" applicable to the
determination of the number of votes per share which holders
of shares of Preferred Stock are entitled to cast shall at all
times be adjusted to the extent necessary to ensure that the
holders of all shares of Preferred Stock shall not be entitled
to cast more than 49% of the votes on any matter voted on by
the holders of the shares of Common Stock and the holders of
the shares of Preferred Stock, voting together as a single
class.
(b) The unanimous affirmative vote of all of the
shares of Preferred Stock, voting together as a class, in
person or by proxy, at a special or annual meeting of
stockholders called for the purpose, or pursuant to a written
consent of stockholders shall be necessary to:
(i) authorize, adopt or approve an amendment
to the Certificate of Incorporation or By-laws of the
Company or an amendment to this Certificate of
Designation that would have one of the following
results: (A) reduce the stated value or Liquidation
Preference of, or Dividend Rate on, the Preferred
Stock, (B) change the place or currency of payment or
stated value or Liquidation Preference of, or
Dividend Rate on, the Preferred Stock, (C) impair the
right to institute suit for the enforcement of any
payment on or with respect to the Preferred Stock, or
(D) reduce the percentage of outstanding shares of
Preferred Stock necessary to modify or amend the
terms hereof or to grant waivers;
(ii) issue any shares of the capital stock
of the Company ranking senior to, or pari passu with
(either as to dividends or upon voluntary or
involuntary liquidation, dissolution or winding up)
the Preferred Stock, or issue any securities
convertible into or exchangeable for such shares,
except shares of Common Stock; or
(iii) take any action which would result in
an Organic Change.
(c) The holders of shares of Preferred Stock shall
have, in addition to the other voting rights set forth herein,
the exclusive right, voting separately as a single class, to
elect up to a number of directors that constitutes less than
half of the total number of directors of the Company;
provided, however, that if the holders of shares of Preferred
Stock do not elect any directors to the Board, then each
holder shall have the right to appoint an observer to the
Board.
(d) The foregoing rights of holders of shares of
Preferred Stock to take any actions as provided in this
Section 5 may be exercised at any annual meeting of
stockholders or at a special meeting of stockholders held for
such purpose as hereinafter provided or at any adjournment
thereof or pursuant to any written consent of stockholders. If
(A) the annual meeting of stockholders of the Company is not,
for any reason, held within the time fixed in the By-laws of
the Company, or (B) vacancies shall exist in the offices of
directors elected by the holders of Preferred Stock, a proper
officer of the Company, upon the written request of the
holders of record of at least ten percent (10%) of the shares
of Preferred Stock then outstanding addressed to the Secretary
of the Company, shall call a special meeting in lieu of the
annual meeting of stockholders or a special meeting of the
holders of Preferred Stock, for the purpose of electing or, if
necessary, removing directors. Any such meeting shall be held
at the earliest practicable date at the place for the holding
of the annual meetings of stockholders. If such meeting shall
not be called by the proper officer of the Company within
twenty (20) days after personal service of said written
request upon the Secretary of the Company, or within twenty
(20) days after mailing the same within the United States by
certified mail, addressed to the Secretary of the Company at
its principal executive offices, then the holders of record of
at least ten percent (10%) of the outstanding shares of
Preferred Stock may designate in writing one of their members
to call such meeting at the expense of the Company, and such
meeting may be called by the person so designated upon the
notice required for the annual meetings of stockholders of the
Company and shall be held at the place for holding the annual
meetings of stockholders. Any holder of Preferred Stock so
designated shall have access to the lists of stockholders to
be called pursuant to the provisions hereof.
(e) Subject to the proviso in Section 4.2 of the
By-laws of the Company, any vacancy occurring in the office of
director elected by the holders of Preferred Stock may be
filled by the remaining director(s) elected by the holders of
Preferred Stock unless and until such vacancy shall be filled
by the holders of Preferred Stock. The term of office of the
directors elected by the holders of Preferred Stock shall
terminate upon the election of their successors at any meeting
of the holders of the shares of Preferred Stock held for the
purpose of electing directors.
(f) Subject to the proviso in Section 4.2 of the
By-laws of the Company, the directors elected by the holders
of shares of Preferred Stock voting separately as a single
class may be removed from office with or without cause by the
vote of the holders of at least a majority of the outstanding
shares of Preferred Stock. A special meeting of the holders of
shares of Preferred Stock may be called in accordance with the
procedures set forth in Section 5(d) above.
(b) Amendment of Section 4.2 [Number, Tenure and Resignation]
of the Second Amended and Restated Bylaws by deleting the introduction and
replacing it with the following:
Section 4.2 Number, Tenure and Resignation. The authorized
number of directors of the Corporation shall be not less than two (2)
nor more than seven (7) (of which the holders of the Preferred Stock of
the Corporation shall be entitled to elect up to a number of directors
that constitutes less than half of the total directors, but such number
shall not be more than two (2) during such time that any shares of the
Preferred Stock are outstanding prior to a Triggering Event)), and such
number may be changed from time to time within such specified limit by
a duly adopted resolution of the Board of Directors; provided, however,
that no decrease in the number of directors shall have the effect of
shortening the term of any incumbent director (unless such decrease
results in the holders of the Preferred Stock having elected half or
more of the directors of the Corporation, in which case the term of one
or more of the directors elected by the holders of the Preferred Stock
shall be immediately terminated in order to bring the number of
directors of the Corporation elected by the holders of the Preferred
Stock to less than half of the total directors of the Corporation). The
directors of the Corporation shall be elected by a plurality vote of
the shares of the Corporation's stock represented in person or by proxy
at the annual meeting of the stockholders and entitled to vote on the
election of directors of the Corporation. Each director shall hold
office until the last to occur of the next annual meeting of
stockholders or until his successor shall have been elected and
qualified, or until his earlier written resignation or removal in the
manner herein provided. A director may resign at any time by written
notice to the Board, its Chairman, the President or the Secretary. The
resignation is effective on the date it bears, or
its designated effective date. For purposes of these Bylaws,
"Triggering Event" means, at any time (from and after April 13, 2002),
the earliest to occur of the following:
(c) Amendment and restatement of Section 4.3 [Quorum and
Manner of Acting] of the Second Amended and Restated Bylaws in its entirety as
follows:
Section 4.3 Quorum and Manner of Acting. A majority of the
Board of Directors shall be necessary to constitute a quorum for the
transaction of business at any meeting of the Board of Directors. If a
quorum shall fail to attend any meeting, the Chairman of the meeting or
a majority of the directors who are present at the meeting may adjourn
the meeting to another place and time.
(d) Amendment of Section 1 of the Amended Stockholder
Agreement by deleting the date "January 1" in the definition of "Triggering
Event" and replacing it with the date "April 13".
(e) Amendment and restatement of Section 4.1 [Voting Rights]
of the Amended Stockholder Agreement in its entirety as follows:
4.1. Voting Rights. The holders of the shares of Preferred
Stock hereby acknowledge and agree that the voting rights set forth in
Section 5 of the Certificate of Designation shall not be effective (and
shall not be exercised by the holders of the shares of Preferred Stock)
prior to the occurrence of a Triggering Event. Prior to such Triggering
Event, the holders of the shares of Preferred Stock shall have the
following voting rights in lieu of the voting rights set forth in
Section 5 of the Certificate of Designation:
(a) The holders of shares of Preferred Stock shall
have the exclusive right, voting separately as a single class,
to elect up to a number of directors (but not more than two)
that constitutes less than half of the total directors of the
Company; provided, however, that if the holders of the shares
of Preferred Stock do not elect any directors to the Board of
Directors, such holders will have the right to appoint up to
three observers to the Board of Directors.
(b) Subject to the proviso in Section 4.2 of the
Bylaws of the Company, any vacancy occurring in the office of
director elected by the holders of the shares of Preferred
Stock or any additional director to be elected pursuant to
Section 4.1(a) above may be filled by the remaining
director(s) elected by the holders of the shares of Preferred
Stock unless and until such vacancy shall be filled by the
holders of the shares of Preferred Stock. The term of office
of the directors elected by the holders of the shares of
Preferred Stock shall terminate upon the election of their
successors at any meeting of the holders of the shares of
Preferred Stock held for the purpose of electing directors
elected by the holders of the shares of Preferred Stock.
(c) Subject to the proviso in Section 4.2 of the
Bylaws of the Company, the directors elected by the holders of
the shares of Preferred Stock voting separately as a single
class may only be removed from office with or without cause by
the vote of the holders of at least a majority of the
outstanding shares of Preferred Stock.
(d) From and after the occurrence of a Triggering
Event, the foregoing rights of the holders of the shares of
Preferred Stock to elect directors of the Company in
accordance with this Section 4.1 shall no longer be effective
(and shall not be exercised by the holders of the shares of
Preferred Stock) and shall be replaced with the rights of the
holders of shares of Preferred Stock to elect directors of the
Company in accordance with Section 5 of the Certificate of
Designation.
SECTION 2. REVOCATION; AMENDMENT. This Waiver is coupled with
an interest and shall not be revoked or otherwise amended, modified or
supplemented by any or all of the Preferred Stockholders without the prior
written consent of the Company and its sole voting common stockholder, Coram
Healthcare Corporation ("CHC").
SECTION 3. SPECIFIC ENFORCEMENT; SPECIFIC PERFORMANCE. The
Preferred Stockholders hereby acknowledge and agree that the Company will be
irreparably damaged if this Waiver is not specifically enforced. Upon an attempt
by any or all of the Preferred Stockholders to revoke or otherwise amend, modify
or supplement this Waiver, the Company shall be entitled to, in addition to all
other remedies available to the Company with respect thereto, a temporary or
permanent injunction, without showing any actual damage, and/or a decree of
specific performance. In any action or proceeding to specifically enforce the
provisions of this Waiver, the Preferred Stockholders hereby waive any claim or
defense that the Company has an adequate remedy at law and hereby agrees not to
argue in any such action or proceeding that such remedy at law exists. This
Section 3, however, shall not prevent the Company from seeking a remedy at law
in connection with an attempt by any or all of the Preferred Stockholders to
revoke or otherwise amend, modify or supplement this Waiver.
SECTION 4. FURTHER ASSURANCES. The Preferred Stockholders
hereby agree to do and perform, or to cause to be done and performed, all such
further acts and things, and hereby agree to execute and deliver all such other
agreements, certificates, instruments and documents, as the Company may
reasonably request in order to carry out the intent and accomplish the purposes
of this Waiver.
SECTION 5. SEVERABILITY. If any of the provisions of this
Waiver shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of such
provision in every other respect and of the remaining provisions of this Waiver
shall not be impaired in any way.
SECTION 6. GOVERNING LAW. This Waiver shall be construed and
enforced in accordance with the laws of the State of Delaware, regardless of the
choice of law provisions thereof.
SECTION 7. FACSIMILE SIGNATURES; COUNTERPARTS. This Waiver may
be executed by facsimile signature and 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.
SECTION 8. SUCCESSORS AND ASSIGNS. This Waiver shall be
binding on the Preferred Stockholders and their successors and assigns and shall
inure to the benefit of the Company and CHC and their successors and assigns.
IN WITNESS WHEREOF, the Preferred Stockholders have executed
and delivered this Waiver as of the date first above written.
CERBERUS PARTNERS, L.P.
By: Cerberus Associates LLC
Its: General Partner
By: /s/ Xxxx X. Neporent
--------------------------
Name: Xxxx X. Neporent
Title: Managing Director
FOOTHILL CAPITAL CORPORATION
By: /s/ M.E. Xxxxxxx
--------------------------
Name: M.E. Xxxxxxx
Title: Senior Vice President
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxx X. Book
--------------------------
Name: Xxxxx X. Book
Title: Authorized Signatory
