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EXHIBIT 10.3
STOCK PURCHASE AND
STOCKHOLDERS' AGREEMENT
THIS STOCK PURCHASE AND STOCKHOLDERS' AGREEMENT (this "Agreement"), is
entered into as of this 1st day of November, 1996, by and among Capital Senior
Living Corporation, a Delaware corporation (the "Company"), Xxxxxxx X. Xxxx, an
individual residing in Texas ("Xxxx"), Senior Living Trust, a Texas trust
("SLT"), and Xxxxxxxx Xxxxx, an individual residing in New York ("Xxxxx" and
with Xxxx and SLT, the "Stockholders").
RECITALS:
A. Each of the Stockholders is now or may hereafter be the owner
of shares of the Company's Common Stock, $.01 par value per share (the
"Shares," which shall include all Shares now owned or hereafter acquired by the
Stockholders and any options, warrants or securities convertible into Common
Stock now owned or hereafter acquired by the Stockholders).
B. Each of the Stockholders and the Company desire to be granted
the rights created herein.
NOW, THEREFORE, in consideration for the mutual promises and covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the undersigned parties
hereto agree as follows:
I. PURCHASE AND SALE; CLOSING
1.1 AGREEMENT TO SELL AND PURCHASE. Upon the basis of the
representations and warranties and subject to the terms and conditions set
forth in this Agreement, each Stockholder agrees to purchase, and the Company
agrees to sell and issue to each Stockholder, for the consideration specified
in Section 1.2 hereof, 560,000 Shares.
1.2 PURCHASE PRICE; CLOSING. The aggregate purchase price for the
Shares to be purchased by each Stockholder shall be the sum of $.01 multiplied
by the number of Shares to be purchased by each Stockholder as set forth in
Section 1.1 hereof, and shall be payable by the delivery to the Company of each
Stockholder's check at the closing of the sale and purchase of the Shares to be
purchased by each Stockholder under this Agreement (the "Closing") which will
take place concurrently with the execution hereof.
1.3 DELIVERY OF STOCK. At the Closing, except for the Escrow
established in Section 5.2(d), the Company will deliver to each Stockholder
certificates representing the Shares being acquired by each Stockholder upon
payment of the purchase price for such Shares in accordance with the terms of
Section 1.2.
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II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Stockholder as follows:
2.1 DUE AUTHORIZATION. The Company has the requisite legal right
and power and all authority and approvals required to enter into, execute and
deliver this Agreement and to perform fully its obligations hereunder. This
Agreement has been duly executed and delivered and constitutes the valid and
binding obligation of the Company enforceable against it in accordance with its
terms.
2.2 DUE ORGANIZATION OF THE COMPANY. The Company is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware, and is qualified to do business in every state where the
nature and/or extent of its operations and/or property require such
qualification.
2.3 CAPITALIZATION. The authorized capital stock of the Company
consists of 40,000,000 shares of Common Stock, $.01 par value per share, of
which the 1,680,000 shares of Common Stock issued hereunder are presently the
only validly issued and outstanding shares of the Company. Other than as
provided in Section 1.1 herein, there are no outstanding or existing
obligations or commitments, options, contracts, or conversion rights with
respect to the issuance of any of the Company's Common Stock, nor does the
Company have any obligations or commitments to create any such options,
contracts, commitments, or conversion rights.
III. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and warrants
to the Company and to each other Stockholder as follows:
3.1 DUE AUTHORIZATION. The Stockholder has the requisite legal
right and power and all authority and approvals required to enter into, execute
and deliver this Agreement and to perform fully his obligations hereunder.
This Agreement has been duly executed and delivered and constitutes the valid
and binding obligation of the Stockholder enforceable against him in accordance
with its terms.
3.2 SECURITIES ACT. The Stockholder understands that the Shares
acquired by him have not been registered under the Securities Act of 1933, as
amended (the "Securities Act") or registered or qualified under any state
securities laws, on the basis of a claim of exemption from the registration
requirements of the Securities Act and the registration or qualification
requirements of applicable state securities laws, and that said Shares cannot
be transferred unless they are subsequently registered under the Securities Act
and qualified and registered under applicable state securities laws or an
exemption from registration and qualification is available. The Stockholder is
acquiring the Shares solely for his own account and not with a view to or for
resale in connection with any distribution thereof within the meaning of the
Securities Act or any
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applicable state securities laws. The Stockholder is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act. The Stockholder understands that each certificate representing Shares
will bear appropriate state "blue sky" legends and a legend substantially to
the effect that:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE
SECURITIES MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN
OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION
THAT REGISTRATION IS NOT REQUIRED UNDER APPLICABLE SECURITIES LAWS."
3.3 SOPHISTICATED INVESTOR; INFORMATION. The Stockholder has such
knowledge and experience in financial and business matters in general, and in
investments of the type of the investment in the Company in particular, that
the Stockholder is capable of evaluating the merits and risks of the
prospective investment. The Stockholder's financial condition is such that the
Stockholder has no need for liquidity with respect to his investment in the
Company to satisfy any existing or contemplated undertaking or indebtedness.
The Stockholder is able to bear the economic risk of his investment in the
Company for an indefinite period of time, including the risk of losing all of
his investment. By reason of the Stockholder's knowledge and experience in
business and financial matters, the Stockholder has acquired the capacity to
protect his own interest in investments of this nature and is capable of
evaluating the risks, merits and other facets of this investment. The Company
has made available to the Stockholder such information regarding the Company,
its properties, and its business as the Stockholder has requested. The
Stockholder has been given the opportunity to request such additional
information as he requires in order to evaluate the merits and risks of this
investment and to ask questions of and receive satisfactory answers from
officers of the Company regarding the Company and the proposed investment by
the Stockholder in the Shares.
IV. CERTAIN AGREEMENTS REGARDING SHARES
4.1 RIGHT OF FIRST REFUSAL.
(a) In the event that Xxxxx (or his Permitted Transferees
(as defined herein)) proposes to transfer any of his Shares to other than a
Permitted Transferee, Xxxxx or his Permitted Transferees shall give the Company
written notice of the price, terms and conditions of the proposed sale. The
Company shall have fifteen (15) days from the date of receipt of any such
notice to agree to purchase up to all of such securities, for the price and
upon the terms and conditions specified in the notice, by delivering written
notice to Xxxxx or his Permitted Transferee stating therein the quantity of
securities to be purchased up to all of such securities.
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(b) In the event that the Company determines not to
purchase all of the Shares that Xxxxx or his Permitted Transferees propose to
transfer within the fifteen (15) day period specified in Section 4.1(a) hereof,
Xxxxx or his Permitted Transferees shall then give the other Stockholders
(and/or such other Stockholders' Permitted Transferees) (collectively, the
"Eligible Offerees") written notice of the price, terms and conditions of the
proposed sale (which shall be the same price, terms and conditions specified in
the notice to the Company pursuant to Section 4.1(a) above). Each Eligible
Offeree shall have fifteen (15) days from the date of receipt of any such
notice to agree to purchase up to his or her Remaining Pro Rata Share (as
defined herein) of such securities, for the price and upon the terms and
conditions specified in the notice, by giving written notice to Xxxxx or his
Permitted Transferees stating therein the quantity of securities to be
purchased up to such person's Remaining Pro Rata Share. If any Eligible
Offeree fails to agree to purchase its full Remaining Pro Rata Share within
such fifteen (15) day period, Xxxxx or his Permitted Transferees selling such
Shares will give the Eligible Offerees who did so agree (the "Electing
Offerees") notice of the number of Shares which were not subscribed for. Such
notice may be by telephone if followed by written confirmation within two (2)
days. The Electing Offerees shall have five (5) days from the date of such
second notice to agree to purchase their Remaining Pro Rata Share (or such
greater amount as such Electing Offerees agree upon) of all or any part of the
securities not purchased by such other Eligible Offerees. For purposes of the
second election under this Section 4.1(b) shares held by Eligible Offerees
other than Electing Offerees shall be excluded from Section 6.6(b)(ii) for the
definition of a "Remaining Pro Rata Share."
(c) Notwithstanding anything to the contrary in this
Section 4.1, the Company and the Eligible Offerees may not in the aggregate
purchase less than all of the Shares proposed to be transferred pursuant to the
notice to the Company pursuant to Section 4.1(a) above.
(d) Subject to the provisions of Section 4.2, in the
event the Company and the Eligible Offerees fail to purchase all of the Shares
proposed to be transferred within the said fifteen (15) day period in the case
of the Company, plus the fifteen (15) day period and the five (5) day period
specified above in the case of the Eligible Offerees and Electing Offerees,
respectively, Xxxxx or his Permitted Transferees shall (i) give notice to all
Eligible Sellers (as defined herein) and (ii) have ninety (90) days thereafter
to sell the Shares proposed to be transferred at the price and upon the terms
and conditions no more favorable to the purchasers of such securities than
specified in the notice to the Company pursuant to Section 4.1(a) above. In
the event Xxxxx or his Permitted Transferees have not sold the securities
within said ninety (90) day period, Xxxxx or his Permitted Transferees shall
not thereafter sell any of their securities without first offering such
securities in the manner provided above.
4.2 RIGHT OF PARTICIPATION. Notwithstanding the foregoing Section
4.1, neither Xxxxx nor his Permitted Transferees (whether the first or a
subsequent Permitted Transferee) may sell, assign or transfer any of his Shares
until the remaining Stockholders (and/or such other Stockholders' Permitted
Transferees) (collectively, the "Eligible Sellers") shall have been given the
opportunity, exercisable within twenty (20) days from the date of notice to the
Eligible Sellers
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by Xxxxx or his Permitted Transferees, to sell to the proposed transferee or
transferees, upon the same terms and conditions offered to Xxxxx or his
Permitted Transferees, his Co-Sale Pro Rata Share (as defined herein) of the
Shares proposed to be sold. If an Eligible Seller fails to notify Xxxxx or his
Permitted Transferees within twenty (20) days after the notice given pursuant
hereto, he shall be deemed to have waived his right under this Section 4.2.
Any sale or transfer made pursuant to this Section 4.2 shall be consummated
within seventy (70) days of the date of the notice given pursuant to Section
4.1(d) above and shall be conditioned upon the agreement of the proposed
transferee or transferees that such proposed transferee or transferees will
purchase each Eligible Seller's Co-Sale Pro Rata Share of the Shares proposed
to be sold.
4.3 EXCEPTIONS. Notwithstanding anything in Section 4.1 and
Section 4.2 to the contrary, the restrictions set forth in Section 4.1 and
Section 4.2 shall not apply in the following case: Xxxxx may transfer any
Shares to a Permitted Transferee provided that such Permitted Transferee agrees
to be bound by this Agreement.
4.4 PROHIBITED STOCK SALES. Notwithstanding anything else to the
contrary in this Agreement, neither Xxxxx nor his Permitted Transferees shall
transfer any Shares to any person or entity determined by the other parties to
be a competitor of the Company.
4.5. LEGENDS. All certificates of Xxxxx or his Permitted
Transferees representing any Shares subject to the provisions of this Agreement
shall have endorsed thereon a legend to substantially the following effect:
"THE RIGHT TO SELL, TRANSFER OR OTHERWISE DISPOSE OF OR PLEDGE
THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN
RESTRICTIONS, WHICH INCLUDE CO-SALE AND RIGHT OF FIRST REFUSAL
RESTRICTIONS ON THE SALE OF THE SHARES, SET FORTH IN A STOCKHOLDERS'
AGREEMENT. A COPY OF SUCH AGREEMENT IS ON FILE AT THE CORPORATION'S
PRINCIPAL PLACE OF BUSINESS AND ITS REGISTERED OFFICE."
4.6. TRANSFER OF STOCK. The Company shall not: (a) permit any
transfer on its books of any Shares held by Xxxxx or his Permitted Transferees
which shall have been sold or transferred in violation of any of the provisions
set forth in this Agreement or (b) treat as an owner of such Shares or accord
the right to vote as an owner or to pay dividends to any transferee to whom
such Shares shall have been sold or transferred in violation of any of the
provisions set forth in this Agreement.
V. OTHER AGREEMENTS REGARDING THE SHARES
5.1 CALL RIGHTS. If prior to the third anniversary of the date of
this Agreement the Company has not completed an initial public offering of its
Common Stock, the Company shall have the right to call ("Call") from Xxxxx or
his Permitted Transferees all or part of the Shares
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held by Xxxxx or his Permitted Transferees on the Call Date (as defined below)
(the "Call Securities") pursuant to the following terms:
(a) In the event the Company wishes to exercise its right
to Call the Call Securities, the Company shall notify Xxxxx or his Permitted
Transferees at least thirty (30) days prior to the effective Call Date of its
intention to exercise its Call right, the number of the Call Securities, and
its intended Call Date, which date shall be no more than one hundred twenty
(120) days from the date of the notice. For purposes of this Section 5.1, the
term "Call Date" shall mean each date on which the Company exercises its right
to Call pursuant to this Section 5.1, and the Company shall be deemed to have
exercised a Call right only upon the closing of such Call right as specified in
Section 5.1(c) hereto.
(b) The purchase price per share (the "Call Price") of
the Call Securities shall be equal to the Company's consolidated gross revenue
determined in accordance with generally accepted accounting principles for the
previous twelve (12) months multiplied by two (2), and then divided by the
total outstanding shares of Common Stock of the Company.
(c) On each Call Date, the Call closing shall occur at
the Company's principal office. At the Call closing, to the extent applicable,
Xxxxx or his Permitted Transferees shall deliver the Call Securities being
sold, duly endorsed in blank, accompanied by such supporting documents as may
be necessary to pass to the Company good title to the Call Securities, free and
clear of all liens, claims and encumbrances. In consideration therefor, the
Company shall deliver to Xxxxx or his Permitted Transferees payment, by
certified check, cashier's check or wire transfer, of the aggregate Call Price.
(d) For purposes hereof, an initial public offering of
the Company's Common Stock shall not be authorized and completed unless such
offering has been approved by the Stockholders holding at least a majority of
the issued and outstanding shares of the Company's Common Stock as well as any
other required approvals.
5.2 PARTIAL CALL RIGHTS. If on or prior to any of the dates
indicated below, the Company has not completed an initial public offering of
its Common Stock or has not completed a Private Sale (as defined in Section 5.6
hereof), the Company shall have the right to call ("Partial Call") from Xxxxx
and his Permitted Transferees the number of shares of the Company's Common
Stock ("Partial Call Securities") on the Partial Call Dates (as defined below)
pursuant to the following terms:
(a) The Company shall have the right to make a Partial
Call for up to the following number of Partial Call Securities on the dates
indicated below ("Partial Call Dates"):
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Partial Call Dates Number of Partial Call Securities
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September 30, 1997 9260
December 31, 1997 9260
March 31, 1998 9260
June 30, 1998 9260
September 30, 1998 9260
December 31, 1998 9260
March 31, 1999 9260
June 30, 1999 9260
September 30, 1999 9253
(b) In the event the Company wishes to exercise its right
to Partial Call the Partial Call Securities, the Company shall notify Xxxxx or
his Permitted Transferees at least ten (10) days prior to the Partial Call Date
of its intention to exercise its Partial Call right, the number of the Partial
Call Securities, and its intended closing date, which date shall be no more
than sixty (60) days from the date of the notice. For purposes of this Section
5.2, the Company shall be deemed to have exercised a Partial Call right only
upon the closing of such Partial Call right as specified in Section 5.2(d)
hereto.
(c) The purchase price per share (the "Partial Call
Price") of the Partial Call Securities shall be equal to the Company's
consolidated gross revenue determined in accordance with generally accepted
accounting principles for the previous twelve (12) months multiplied by two
(2), and then divided by the total outstanding shares of Common Stock of the
Company.
(d) On each closing date, the Call closing shall occur at
the Company's principal office. At the Call closing, to the extent applicable,
the escrow ("Escrow") established for such purposes (into which 83,333 Shares
shall be delivered by Xxxxx on the date hereof) shall deliver the Partial Call
Securities being sold, duly endorsed in blank, accompanied by such supporting
documents as may be necessary to pass to the Company good title to the Partial
Call Securities, free and clear of all liens, claims and encumbrances. In
consideration therefor, the Company shall deliver to Xxxxx or his Permitted
Transferees payment, by certified check, cashier's check or wire transfer, of
the aggregate Partial Call Price.
5.3 REGISTRATION RIGHTS.
(a) The first time that the Company decides to register
any of its Common Stock or securities convertible into or exchangeable for
Common Stock under the Securities Act on a form suitable for an offering for
cash, other than a registration solely to implement an employee benefit plan or
a transaction to which Rule 145 or any other similar rule of the Securities and
Exchange Commission (the "Commission") is applicable, the Company will promptly
give written notice to Xxxxx, and the Company will use best efforts to effect
the registration under the Securities Act of up to the number of Shares
remaining in the Escrow that Xxxxx requests be
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included in such registration by a written notice delivered to the Company
within fifteen (15) days after the notice given by the Company.
(b) If the registration involves an underwritten public
offering, the Company will not be required to register such Shares in excess of
the amount that the principal underwriter reasonably and in good faith
recommends may be included in such offering (a "Cutback"). If such a Cutback
occurs, the number of Shares that are entitled to be included in the
registration and underwriting shall first be allocated to the Company for
securities being sold for its own account and thereafter shall be allocated
among the holders requesting inclusion in the registration pro rata on the
basis of the number of shares each requesting holder requests be included bears
to the total number of shares of all requesting holders (other than the
Company) that have been requested to be included in such registration.
(c) If the Company elects to terminate any registration
filed under this Section 5.3, the Company will have no obligation to register
the securities sought to be included by Xxxxx or others in such registration.
In connection with a registration made by the Company pursuant to this Section
5.3, all expenses of the Company for such registration and offering and the
reasonable fees and expenses of not more than one independent counsel for
Xxxxx, not to exceed $5,000, will be borne by the Company (except that Xxxxx
will bear underwriting discounts and commissions attributable to his Shares
being registered and transfer taxes on Shares being sold by him).
5.4 ANTI-DILUTION RIGHTS. In the event the Company issues any
shares of Common Stock subsequent to the date of this Agreement, the Company
shall offer additional shares of Common Stock to each Stockholder to the
minimum extent necessary to allow each Stockholder to maintain ownership of at
least 2.8% of the issued and outstanding shares of Common Stock of the Company;
provided, however, the 2.8% minimum applicable to Xxxxx and his Permitted
Transferees shall be reduced by any shares purchased by the Company pursuant to
Section 5.2 hereof.
5.5 NO CAPITAL CONTRIBUTION OBLIGATION. Neither Xxxx nor SLT
shall have any obligation, either express or implied, to make any additional
contributions to the Company or to purchase any additional Shares of the
Company. Neither Xxxx nor SLT is representing or warranting any minimum amount
of capitalization or net worth of the Company, either now or in the future.
5.6. RIGHT TO SELL SHARES. In the event that Xxxx and SLT sell for
cash or promissory notes (but not including any stock received in a merger or
other combination) substantially all of their stock in the Company or in its
Designated Affiliates (as hereinafter defined) or receive a distribution of the
proceeds from a sale for cash or promissory notes (but not including any stock
received in a merger or other combination) of substantially all of the assets
of the Company or its Designated Affiliates before an initial public offering
of the Common Stock of the Company or its Designated Affiliates (a "Private
Sale"), Xxxxx shall have the right to sell his shares of
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Common Stock to the Company just prior to the closing of the Private Sale at a
price equal to five percent (5%) of the net proceeds of the Private Sale
received in cash or promissory notes, subject to proportionate reduction as
provided in Section 5.2 hereof. As used herein, "Designated Affiliate" of the
Company shall mean Capital Senior Living, Inc., Capital Senior Development,
Inc., Capital Senior Management 1, Inc., Capital Senior Management 2, Inc. or
other affiliated entities formed to provide similar services, such as Capital
Senior Management 3, Inc., and Quality Home Health Care, Inc.
VI. MISCELLANEOUS
6.1 ENTIRE AGREEMENT. This Agreement supersedes all prior
agreements between or among the parties, whether written or oral, with respect
to the subject matter hereof.
6.2 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state, without regard
to its conflicts of laws principles.
6.3 COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
6.4 PARTIES BOUND. This Agreement shall be binding upon and inure
to the benefit of the Company, the Stockholders and their respective heirs,
administrators, legal representatives, successors, and assigns.
6.5 SEVERABILITY. In the event that any provision of this
Agreement is held be illegal, invalid or unenforceable under present or future
laws, then (a) such provision shall be fully severable and this Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable
provision were not a part hereof; (b) the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid or unenforceable provision or by its severance from this
Agreement; and (c) there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and still be legal, valid and
enforceable.
6.6 DEFINITIONS.
(a) A "Permitted Transferee" shall mean a Stockholder's
or any Permitted Transferee's, as the case may be (and only upon the transfer
of any Shares to such person or trust), spouse and descendants (whether natural
or adopted), any spouses of such descendants, or any trust for the benefit of
such person or persons or any of the foregoing, provided that such Permitted
Transferee agrees to be bound by the terms of this Agreement.
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(b) A "Remaining Pro Rata Share" shall mean the ratio
that (i) the sum of the number of shares of Common Stock then held by each
Eligible Offeree and the number of shares of Common Stock issuable upon
exercise of any options and warrants and upon conversion of any convertible
stock then held by such Eligible Offeree bears to (ii) the sum of the total
number of shares of Common Stock then held by all Eligible Offerees and the
number of shares of Common Stock issuable upon exercise of any options and
warrants and upon conversion of all then outstanding convertible stock held by
all Eligible Offerees.
(c) A "Co-Sale Pro Rata Share" shall mean the ratio that
(i) the sum of the number of shares of Common Stock then held by the Eligible
Seller and the number of shares of Common Stock issuable upon exercise of any
options and warrants and upon conversion of any convertible stock then held by
such Eligible Seller bears to (ii) the sum of the total number of shares of
Common Stock then held by the Eligible Sellers and the number of shares of
Common Stock issuable upon exercise of any options and warrants and upon
conversion of all then outstanding convertible stock held by the Eligible
Sellers plus the number of shares of Common Stock then held by the Stockholder
or Permitted Transferee proposing to sell his Shares.
6.7 CHANGES IN STOCK. If, from time to time during the term of
this Agreement:
(a) there is a dividend of any security, stock split or
other change in the character or amount of any of the outstanding securities of
the Company, or
(b) there is any consolidation or merger immediately
following which stockholders of the Company hold more than 50% of the voting
equity securities of the surviving corporation,
then, in such event, any and all new, substituted or additional securities or
other property to which any Stockholder is entitled by reason of his ownership
of the Shares shall be immediately subject to the provisions of this Agreement
and be included in the word "Shares," as applicable, for all purposes of this
Agreement with the same force and effect as the Shares presently subject to
this Agreement and with respect to which such securities or property were
distributed.
6.8 TERMINATION. This Agreement shall terminate upon the earlier
to occur of:
(a) an agreement in writing by the Company and the
Stockholders (and/or their Permitted Transferees, as the case may be);
(b) the completion of an initial public offering of the
Common Stock of the Company; or
(c) the consolidation, merger (but only with respect to a
consolidation or merger pursuant to which stockholders of the Company
(determined prior to such consolidation or merger)
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hold less than 50% of the voting equity of the surviving corporation) or sale
of all or substantially all of the assets of the Company.
6.9 AMENDMENT. Any provision of this Agreement may be amended or
the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company and the Stockholders. Any amendment or waiver effected
in accordance with this Section 6.9 shall be binding upon each Stockholder,
each Permitted Transferee, and the Company.
6.10 SPECIFIC PERFORMANCE. The Company and the Stockholders agree
that the rights created by this Agreement are unique, and that the loss of any
such right is not susceptible to monetary quantification. Consequently, the
parties agree that an action for specific performance (including for temporary
and/or permanent injunctive relief) of the obligations created by this
Agreement is a proper remedy for the breach of the provisions of this
Agreement, without the necessity of proving actual damages. If the parties
hereto are forced to institute legal proceedings to enforce their rights in
accordance with the provisions of this Agreement, the prevailing party shall be
entitled to recover its reasonable expenses, including attorneys' fees, in
connection with any such action.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
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CAPITAL SENIOR LIVING CORPORATION
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Chief Operating Officer
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/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
SENIOR LIVING TRUST
By:
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Trustee
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
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