TERMINATION OF
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT AND
PROXY AND VOTING AGREEMENT
This TERMINATION OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT AND
PROXY AND VOTING AGREEMENT (the "Termination"), dated as of December 20, 1999,
by and among Apollo Management, L.P., a Delaware limited partnership ("Apollo
Management" and together with its affiliates and managed investment funds,
"Apollo"), Mariner Post-Acute Network, Inc., a Delaware corporation (the
"Company") and the stockholders (including Apollo) listed on the signature pages
attached hereto (the "Stockholders").
W I T N E S S E T H:
WHEREAS, the parties hereto are all of the parties to that certain
Stockholders Agreement, dated as of November 4, 1997, amended as of April 13,
1998 and amended and restated as of November 25, 1998 (the "Stockholders
Agreement") pursuant to which the parties provided for certain rights and
obligations in respect of the Shares (defined in the Stockholders Agreement);
WHEREAS, in addition to the Stockholders Agreement, the Stockholders
provided for certain voting rights and obligations in respect to Shares pursuant
to that certain Proxy and Voting Agreement, dated as November 4, 1997 (the
"Proxy Agreement"), by and among Apollo Management and the Other Stockholders
(defined in the Stockholders Agreement);
WHEREAS, each Stockholder party hereto owns the number of shares of
common stock, par value $.01 per share ("Common Stock") set forth under its name
on the signature pages attached hereto, and the Stockholders party hereto
collectively beneficially own all of the shares of Common Stock currently
subject to the Stockholders Agreement and the Proxy Agreement;
WHEREAS, in connection with the sale of the shares of Common Stock
owned by Apollo to Credit Suisse First Boston Management Corporation ("CSFBMC")
pursuant to a Transfer Agreement between CSFBMC and Apollo (the "Sale
Transaction"), Apollo, the Stockholders and the Company have agreed to enter
into this Termination to become effective (the "Effective Time") (i) with
respect to the Stockholders Agreement immediately upon its execution by Apollo,
the Company and Stockholders holding the requisite number of shares, and (ii)
with respect to the shares of Common Stock owned by each Other Stockholder
subject to the Proxy Agreement, immediately upon its execution by Apollo
Management and such Other Stockholder; and
NOW, THEREFORE, the parties hereto agree as follows:
1. REPRESENTATION AND WARRANTIES. Each party hereto represents
and warrants to the other party as follows:
(a) AUTHORITY RELATIVE TO THIS TERMINATION. Each party hereto has
the requisite
1
power and authority to execute and deliver this Termination and to consummate
the transactions contemplated hereby. The execution and delivery of this
Termination and the consummation of the transactions contemplated hereby have
been duly and validly authorized by such party and no other proceedings on the
part of such party are necessary to authorize this Termination or to consummate
the transactions so contemplated. This Termination has been duly and validly
executed and delivered by such party, and assuming that this Termination has
been duly and validly authorized, executed and delivered by the other parties
hereto, this Termination constitutes a valid and binding obligation of such
party, enforceable against such party in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency and
similar laws affecting creditor's rights generally and to general principles of
equity (whether considered in a proceeding in equity or at law).
(b) NO CONFLICTS. Neither the execution and delivery of
this Termination nor the consummation of the transactions contemplated hereby
will conflict with or constitute a violation of or default under any contract,
commitment, agreement, arrangement or restriction of any kind to which such
party is a party or by which such party is bound. Other than the Stockholders
Agreement and the Proxy Agreement there are no other agreements or
understandings with respect to the voting of the Shares.
2. TERMINATION OF RIGHTS AND OBLIGATIONS. As of the applicable
Effective Time, the rights and obligations of (i) Apollo, the Company and the
Stockholders under the Stockholders Agreement and (ii) Apollo Management and
each of the Other Stockholders under the Proxy Agreement (including, without
limitation, the irrevocable proxy granted by each of the Other Stockholders to
Apollo Management), shall be deemed to be terminated and of no further effect
with respect to any shares of Common Stock beneficially owned by any of Apollo,
the Stockholders, or the Other Stockholders, as the case may be. Notwithstanding
anything herein to the contrary, this Section 2 shall not terminate or interfere
with any Other Stockholder's right to exercise its "tag-along rights" pursuant
to Section 6.2 of the Stockholders Agreement with respect to the Sale
Transaction.
3. GOVERNING LAW. This Termination shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Delaware (without giving effect to the provisions thereof relating to
conflicts of law).
4. COUNTERPARTS. This Termination may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
5. DESCRIPTIVE HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Termination.
2
IN WITNESS WHEREOF, the parties hereto have executed this Termination
as of the date first above written.
MARINER POST-ACUTE
NETWORK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Date: January 5, 2000
APOLLO MANAGEMENT, L.P.,
on behalf of one or more managed
investment funds
By: AIF III Management, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Date: December 20, 1999
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.
Its General Partner
By: Apollo Capital Management II, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
13,100,370 Shares of Common Stock
Date: December 20, 1999
3
APOLLO UK PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
Its General Partner
By: Apollo Capital Management II, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
484,188 Shares of Common Stock
Date: December 20, 1999
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
Its General Partner
By: Apollo Capital Management II, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
783,033 Shares of Common Stock
Date: December 20, 1999
4
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
Its General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Partner
2,592,594 Shares of Common Stock
Date: December 30, 1999
5
DRAX HOLDINGS L.P.
By: ▇▇▇▇▇ Corporation
Its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
75,000 Shares of Common Stock
Date: December 30, 1999
6
WALNUT GROWTH PARTNERS LIMITED
PARTNERSHIP
By: Walnut GP, L.L.C.
Its General Partner
By: Walnut Funds, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
74,073 Shares of Common Stock
Date: December 28, 1999
7
PATRICIAN CORPORATION
(as successor to Healthcare Equity Partners,
L.P., Healthcare Equity QP Partners, L.P.,
Key Capital Corporation, and Key Equity
Partners 97)
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Its: President
1,111,113 Shares of Common Stock
Date: January 5, 2000
8
