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EXHIBIT 4.6
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement ("Agreement") is
entered into as of this 20th day of September 1996 by and among XXXX XXXXXXX,
XXXX X. XXXXXXXXX, XXXXXX XXXXXX, XXXXX XXXXX, all individuals, K.D.
INVESTMENT, and SAE PARTNERS each a Pennsylvania general partnership, which
constitute all of the holders of common or preferred stock of Balanced Care
Corporation (collectively, the "Shareholders"), and BALANCED CARE CORPORATION,
INC., a Delaware corporation ("BCC").
W I T N E S S E T H:
WHEREAS, on September 20, 1995 the Shareholders executed a
Shareholders' Agreement (the Shareholders' Agreement") for the purpose of
agreeing upon certain aspects of the relationship between them as shareholders
of Balanced Care Corporation ("BCC"); and
WHEREAS, in order to obtain additional equity, BCC is
proposing to sell a Series B Convertible Preferred Stock issue in a private
placement to a small group of accredited investors (collectively, the
"Investors") pursuant to the terms of that certain Series B Stock Purchase
Agreement dated the ____ day of September 1996 (the "Stock Purchase
Agreement"); and
WHEREAS, it is a condition of the Stock Purchase Agreement
that the Shareholders' Agreement be terminated; and
WHEREAS, the Shareholders wish to terminate their respective
rights under the Shareholders' Agreement and release each other from all
further obligations and duties under the Shareholders' Agreement.
NOW, THEREFORE, for the mutual promises contained herein and
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties agree as
follows:
1. The Shareholders hereby agree that the Shareholders'
Agreement shall terminate as of the Effective Date (as hereinafter defined)
without any further action of any party hereto.
2. As of the Effective Date, the Shareholders and their
respective successors and assigns, and BCC and its successors and assigns fully
release, remise and forever discharge each other and their respective
successors and assigns from any and all actions, causes of action, debts,
obligations, claims, suits, dues, demands, duties, damages, liabilities and
expenses (including reasonable attorneys' fees) whether in law or equity or
otherwise, which the Shareholders or BCC ever had, now have or may have, past,
present or future, by reason of, involving, relating to, or arising in
connection with the Shareholders' Agreement, it being understood that such
release and discharge does not constitute a release or discharge of claims
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between and among the Shareholders individually based upon or arising out of
their respective individual statutory or common law rights against each other
as shareholders of BCC.
3. The Effective Date, as used herein, shall be the date upon
which the Investors first purchase shares of the Series B Convertible Preferred
Stock from BCC in accordance with the terms and conditions of the Stock
Purchase Agreement.
4. The parties agree that they will do all things that may be
necessary, including, without limitation, the execution of any and all
additional documents as may reasonably be required to implement and effectuate
this Agreement.
5. This Agreement shall be binding upon, and shall inure to
the benefit of, the respective parties hereto and their respective successors
and assigns. Any person executing this Agreement on behalf of BCC, K.D.
Investment, and SAE Partners represents and warrants that he/she has the
requisite power and authority to execute and deliver this Agreement and to bind
their respective entity to the terms and conditions hereof.
6. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, excluding its conflict of
law provisions. This Agreement represents the entire understanding of the
parties hereto with respect to the subject matter herein, and may not be
amended or modified except by a writing executed by all parties hereto.
IN WITNESS WHEREOF, each of the parties hereto have executed
this Agreement on this 20 day of September, 1996.
BALANCED CARE CORPORATION, INC.
a Delaware Corporation
By: /s/ Xxxxxxx X. XxXxxxxx
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Name: Xxxxxxx X. XxXxxxxx
Title: Chief Financial Officer
SHAREHOLDERS:
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxx
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XXXX X. XXXXXXXXX XXXXXX X. XXXXXX
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
/s/ Xxxxx X. Xxxxx /s/ Xxxx Xxxxxxx
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XXXXX X. XXXXX XXXX XXXXXXX
K.D. INVESTMENT SAE PARTNERS,
a Pennsylvania partnership a Pennsylvania partnership
By: /s/ Xxxxx Xxxxxx By: /s/ F. Xxxxx Xxxx
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Name: Xxxxx Xxxxxx Name: F. Xxxxx Xxxx
Title: Managing Partner Title: Managing Partner
