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EXHIBIT (c)(2)
STOCKHOLDER AGREEMENT
AGREEMENT, dated as of September 29, 1997, among Extendicare
Inc., a corporation existing under the laws of Canada ("Parent"), AHC
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Extendicare Inc.(the "Purchaser"), and Pier X. Xxxxx, Xxxxx X. Xxxxx, Pier X.
Xxxxx and Xxxxx X. Xxxxx as joint tenants, Xxxxx Family Foundation, Xxxxx X.
Xxxxx, Trustee and Pier X. Xxxxx, Xx. (each, a "Stockholder" and collectively,
the "Stockholders").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, the Purchaser and Arbor Health Care Company, a Delaware
corporation (the "Company"), have entered into an Agreement and Plan of Merger
(as such agreement may hereafter be amended from time to time, the "Merger
Agreement"), pursuant to which Purchaser will be merged with and into the
Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company
desire that as soon as practicable (and not later than five business days) after
the execution and delivery of the Merger Agreement, the Purchaser shall commence
a cash tender offer (the "Offer") to purchase at a price of $45.00 per share all
outstanding shares of Company Common Stock (as defined in Section 1 hereof)
including all of the Shares (as defined in Section 2 hereof) beneficially owned
by the Stockholders; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements contained herein,
the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with
respect to any securities shall mean having "beneficial ownership" of such
securities (as determined
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pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as within the meaning of Section 13(d)(3) of
the Exchange Act.
(b) "Company Common Stock" shall mean at any time the
Common Stock, $.03 par value, of the Company.
(c) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
(d) Capitalized terms used and not defined herein have
the respective meanings ascribed to them in the Merger Agreement.
2. TENDER OF SHARES.
(a) In order to induce Parent and the Purchaser to enter into
the Merger Agreement, each Stockholder hereby agrees to validly tender (or cause
the record owner of such shares to validly tender), and not to withdraw,
pursuant to and in accordance with the terms of the Offer, not later than the
fifth business day after commencement of the Offer pursuant to Section 1.1 of
the Merger Agreement and Rule 14d-2 under the Exchange Act, the number of shares
of Company Common Stock set forth opposite such Stockholder's name on Schedule I
hereto (the "Existing Shares", and together with any shares acquired by such
Stockholder in any capacity after the date hereof and prior to the termination
of this Agreement whether upon the exercise of Company Options or by means of
purchase, dividend, distribution or otherwise, the "Shares"), all of which are
Beneficially Owned by such Stockholder. Each Stockholder hereby acknowledges and
agrees that Parent's and the Purchaser's obligation to accept for payment and
pay for the Shares in the Offer, including the Shares Beneficially Owned by such
Stockholder, is subject to the terms and conditions of the Offer.
(b) The transfer by each Stockholder of the Shares to
Purchaser in the Offer shall pass to and unconditionally vest in the Purchaser
good and valid title to the Shares, free and clear of all Liens.
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(c) Each Stockholder hereby permits Parent and the Purchaser
to publish and disclose in the Offer Documents and, if approval of the Company's
stockholders is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC) his identity and ownership of
the Company Common Stock and the nature of his commitments, arrangements and
understandings under this Agreement.
3. OPTIONS.
(a) EXERCISE OF STOCK OPTION. In order to induce Parent and
the Purchaser to enter into the Merger Agreement, each Stockholder hereby grants
to Parent an irrevocable option (a "Stock Option") to purchase such
Stockholder's Shares (the "Option Shares") at an amount (the "Purchase Price")
equal to the Offer Price. If the Merger Agreement is terminated pursuant to
Section 7.1(c)(ii) or 7.1(d)(i), each Stock Option shall, in any such case,
become exercisable, in whole but not in part, upon the first to occur of any
such event and remain exercisable in whole until the date which is 60 days after
the date of the occurrence of such event (the "60 Day Period"), so long as: (i)
all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), required for the purchase of the Option Shares
upon such exercise shall have expired or been waived; (ii) all other applicable
consents of any Governmental Entity required for the purchase or sale of the
Option Shares upon such exercise (if applicable) shall have been granted or
otherwise satisfied; and (iii) there shall not be in effect any preliminary
injunction or other order issued by any Governmental Entity prohibiting the
exercise of the Stock Option pursuant to this Agreement; provided that if (i)
all HSR Act waiting periods shall not have expired or been waived, (ii) all
other applicable consents of any Governmental Entity required for the purchase
or sale of the Option Shares (if applicable) shall not have been granted or
otherwise satisfied, or (iii) there shall be in effect any such injunction or
order, in each case on the expiration of the 60 Day Period, the 60 Day Period
shall be extended until 5 business days after the later of (A) the date of
expiration or waiver of all HSR Act waiting periods, (B) the grant or other
satisfaction of such required consents, and (C) the date of removal or lifting
of such injunction or order; provided, however, that in no event shall the Stock
Option be exercisable after December 31, 1997; provided, further, that the Stock
Option shall terminate if any Governmental Entity shall issue an order, decree
or ruling or take any
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other action (which order, decree, ruling or other action the parties hereto
shall use their best efforts to lift), which permanently restrains, enjoins or
otherwise prohibits Parent's exercise of the Stock Option or the sale of the
Option Shares to Parent by the Stockholder. In the event that Parent wishes to
exercise a Stock Option, Parent shall send a written notice (the "Notice") to
the Stockholder identifying the place and date (not less than two nor more than
10 business days from the date of the Notice) for the closing of such purchase.
(b) MAKE WHOLE. If, pursuant to Section 3(a), Parent exercises
the Option, then, at Parent's election: (i) Parent will, at or prior to the time
of payment in connection with any Superior Proposal, pay (the "Alternative
Payment") to the Stockholder a per Share amount equal to the consideration paid
to all stockholders of the Company in the Superior Proposal, less the Purchase
Price per Share, plus any additional amount as may be necessary so that the
aggregate consideration, after payment of all federal, state and local income
taxes (the "Aggregate After Tax Consideration") received by the Stockholder in
connection with the Alternative Payment is not less than the Aggregate After Tax
Consideration that would have been received by the Stockholder as if it had been
paid the consideration under the Superior Proposal; or (ii) prior to the end of
the tender period, the effective date of the merger or the consummation date for
the Superior Proposal, Parent shall rescind the exercise of the Option and
return the Stockholder's Shares to the Stockholder and the Stockholder, upon
receipt of such Shares, shall repay the Purchase Price to the Parent and,
provided that the Stockholder tenders its Shares to the Superior Proposal or
votes its Shares in favor of the Superior Proposal, and the Stockholder actually
receives the consideration paid in connection with the Superior Proposal (the
"Superior Proposal Payment"), then at or prior to the time of the Superior
Proposal Payment, Parent shall pay to the Stockholder any additional amount as
may be necessary so that the Aggregate After Tax Consideration received by the
Stockholder in connection with the Superior Proposal is not less than the
Aggregate After Tax Consideration it would have received in connection with the
Superior Proposal had Parent never exercised the Option.
4. ADDITIONAL AGREEMENTS.
(a) VOTING AGREEMENT. Each Stockholder shall,
during the period commencing on the date hereof and con-
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tinuing until the first to occur of the Effective Time or the termination of the
Merger Agreement in accordance with its terms, and in any event until no later
then December 31, 1997, at any meeting of the holders of Company Common Stock,
however called, or in connection with any written consent of the holders of
Company Common Stock, vote (or cause to be voted) the Shares (if any) then held
of record or Beneficially Owned by such Stockholder, (i) in favor of the Merger,
the execution and delivery by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other actions contemplated by the
Merger Agreement and this Agreement and any actions required in furtherance
thereof and hereof; and (ii) against any Acquisition Proposal and against any
action or agreement that would impede, frustrate, prevent or nullify this
Agreement, or result in a breach in any respect of any covenant, representation
or warranty or any other obligation or agreement of the Company under the Merger
Agreement or which would result in any of the conditions set forth in Annex A to
the Merger Agreement or set forth in Article VI of the Merger Agreement not
being fulfilled.
(b) NO INCONSISTENT ARRANGEMENTS. Each Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, it shall not (i) transfer (which term shall include, without
limitation, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of such Stockholder's Shares, Company Options or any
interest therein, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such Shares, Company
Options or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization in or with respect to such Shares or Company Options, (iv)
deposit such Shares or Company Options into a voting trust or enter into a
voting agreement or arrangement with respect to such Shares or Company Options,
or (v) take any other action that would in any way restrict, limit or interfere
with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement. Notwithstanding anything
contained in this Section to the contrary, the Stockholder shall have the right
to transfer ownership of Shares to members of his or her immediate family or to
a trust created by the Stockholder, provided that any and all transferees and
trustees of any such trusts first agree in writing to hold such Shares so
transferred subject to this Agreement.
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(c) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF
PROXY.
(i) Each Stockholder, during the period commencing on the date
hereof and continuing until the first to occur of the Effective Time or the
termination of the Merger Agreement in accordance with its terms, and in any
event until no later then December 31, 1997, at any meeting of the holders of
Company Common Stock, hereby irrevocably grants to, and appoints, Parent and Xxx
Xxxxxx and Xxxxx Xxxxxxxx, or either of them, in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any such
office of Parent, and each of them individually, such Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Stockholder, to vote such Stockholder's Shares, or grant a
consent or approval in respect of the Shares in favor of the various
transactions contemplated by the Merger Agreement (the "Transactions") and
against any Acquisition Proposal, and for no other purpose.
(ii) Each Stockholder represents that any proxies heretofore
given in respect of such Stockholder's Shares are not irrevocable, and that any
such proxies are hereby revoked.
(iii) Each Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon such Stockholder's
execution and delivery of this Agreement. Each Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 4(c) is given in connection with
the execution of the Merger Agreement, and that such irrevocable proxy is given
to secure the performance of the duties of such Stockholder under this
Agreement. Each Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked. Each
Stockholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 212(e) of the Delaware General Corporation Law.
(d) NO SOLICITATION. Each Stockholder hereby
agrees, in its or his capacity as a stockholder of the Company, that neither
such Stockholder nor any of its Subsidiaries or affiliates shall (and such
Stockholder shall use its best efforts to cause its officers, directors,
employees, representatives and agents, including,
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but not limited to, investment bankers, attorneys and accountants, not to),
directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than Parent,
any of its affiliates or representatives) concerning any Acquisition Proposal.
Each Stockholder will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal. Each Stockholder will immediately communicate to Parent
the terms of any proposal, discussion, negotiation or inquiry such Stockholder,
in its or his capacity as a stockholder of the Company, receives (and will
disclose any written materials received by such Stockholder, in its or his
capacity as a stockholder of the Company, in connection with such proposal,
discussion, negotiation or inquiry) and the identity of the party making such
proposal or inquiry which it may receive in respect of any such transaction.
(e) COMPANY OPTIONS. If the Stockholder holds Company Options
to acquire shares of Company Common Stock, it shall, if requested by the
Company, consent to the cancellation or substitution of its Company Options in
accordance with the terms of the Merger Agreement and shall execute all
appropriate documentation in connection with such cancellation or substitution.
(f) BEST REASONABLE EFFORTS. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use its best
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement and the Merger Agreement. Each party shall
promptly consult with the other and provide any necessary information and
material with respect to all filings made by such party with any Governmental
Entity in connection with this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby.
(g) WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that it or
he may have.
(h) ACQUISITION OF REMAINING SHARES. Parent agrees
that, in the event that within three years following Parent's exercise of the
Stock Option, Parent, the
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Purchaser or any of their Subsidiaries acquires any additional shares of Company
Common Stock from, or pursuant to an offer made to all of the Company's
stockholders, whether by merger, consolidation, tender offer or other similar
transaction, the price paid per share of Company Common Stock shall be no less
than the Purchase Price.
5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
Each Stockholder hereby represents and warrants to Parent as follows:
(a) OWNERSHIP OF SHARES. Such Stockholder is the record and
Beneficial Owner of the Existing Shares, as set forth on Schedule I opposite
such Stockholder's name. On the date hereof, the Existing Shares constitute all
of the Shares owned of record or Beneficially Owned by such Stockholder. Such
Stockholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Sections 2, 3 and 4 hereof, sole power of
disposition, sole power of conversion, sole power to demand appraisal rights and
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Existing Shares with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, proxy arrangement, pledge agreement, shareholders
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and binding agreement of
such Stockholder, enforceable against such Stockholder in accordance with its
terms. There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Stockholder is a trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
such Stockholder of the transactions contemplated hereby.
(c) NO CONFLICTS. Except for filings under the HSR Act
and the Exchange Act, (i) no filing with, and no permit, authorization, consent
or approval of, any Governmental Entity for the execution of this Agreement by
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such Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder with any of
the provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to the Stockholder, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Stockholder is a party or by
which such Stockholder or any of its properties or assets may be bound, or (C)
violate any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to such Stockholder or any of its properties or assets.
(d) NO LIENS. Except as permitted by this Agreement, the
Existing Shares and the certificates representing such Shares are now, and at
all times during the term hereof will be, held by such Stockholder, or by a
nominee or custodian for the benefit of such Stockholder, free and clear of all
Liens, proxies, voting trusts or agreements, understandings or arrangements or
any other rights whatsoever, except for any such Encumbrances or proxies arising
hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
(f) RELIANCE BY PARENT. The Stockholder understands and
acknowledges that Parent is entering into, and causing Purchaser to enter into,
the Merger Agreement in reliance upon such Stockholder's execution and delivery
of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND THE
PURCHASER. Each of Parent and the Purchaser hereby represents and warrants to
the Stockholder as follows:
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(a) POWER; BINDING AGREEMENT. Parent and the Purchaser each
has the corporate power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance of
this Agreement by each of Parent and the Purchaser will not violate any other
agreement to which either of them is a party. This Agreement has been duly and
validly executed and delivered by each of Parent and the Purchaser and
constitutes a valid and binding agreement of each of Parent and the Purchaser,
enforceable against each of Parent and the Purchaser in accordance with its
terms.
(b) NO CONFLICTS. Except for filings under the HSR Act and the
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity is necessary for the execution of this
Agreement by each of Parent and the Purchaser and the consummation by each of
Parent and the Purchaser of the transactions contemplated hereby and (ii) none
of the execution and delivery of this Agreement by each of Parent and the
Purchaser, the consummation by each of Parent and the Purchaser of the
transactions contemplated hereby or compliance by each of Parent and the
Purchaser with any of the provisions hereof shall (A) conflict with or result in
any breach of any organizational documents applicable to either of Parent or the
Purchaser, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
either of Parent or the Purchaser is a party or by which either of Parent or the
Purchaser or any of their properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to either of Parent or the Purchaser or any of their properties or
assets.
7. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
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8. STOP TRANSFER. Each Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
9. TERMINATION. Except as provided in Section
3 hereof, the covenants, agreements and proxy shall terminate upon the
termination of the Merger Agreement in accordance with its terms.
10. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including, without limitation, a Stockholder's
heirs, guardians, administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(c) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties, provided that Parent may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent, but no such assignment shall relieve Parent of its obligations hereunder
if such assignee does not perform such obligations.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execu-
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tion and delivery of a written agreement executed by the parties hereto.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy (with a
confirmation copy sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to the
Stockholders: c/o Arbor Health Care Company
0000 Xxxxxxx Xxxx
Xxx 000
Xxxx, Xxxx 00000
Attention: Pier X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (0000 000-0000
Copy to: Xxxxxxxx, Xxxx & Xxxxxxxx, XXX
Xxxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
If to Parent or
the Purchaser: Extendicare Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copy to: Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
00
00
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore in the event of any such breach the aggrieved party shall be entitled
to the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party
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of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(l) JURISDICTION. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware and the
United States District Court for the Southern District of New York in any
action, suit or proceeding arising in connection with this Agreement, and agrees
that any such action, suit or proceeding shall be brought only in such court
(and waives any objection based on forum non conveniens or any other objection
to venue therein). Each party hereto hereby waives any right to a trial by jury
in connection with any such action, suit or proceeding.
(m) DESCRIPTIVE HEADINGS. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholder
have caused this Agreement to be duly executed as of the day and year first
above written.
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EXTENDICARE INC.
By:/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice Presi-
dent, Finance
AHC ACQUISITION CORP.
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President &
Chief Financial
Officer
By:/s/ Pier X. Xxxxx, Xx.
------------------------------------
Name: Pier X. Xxxxx, Xx.
By:/s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
By:/s/ Pier X. Xxxxx And
------------------------------------
Xxxxx X. Xxxxx
------------------------------------
Name: Pier X. Xxxxx and
Xxxxx X. Xxxxx, as
joint tenants
By:/s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx,
Title: Trustee
By:/s/ Pier X. Xxxxx
------------------------------------
Name: Pier X. Xxxxx
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Xxxxx Family Foundation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
President
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Schedule I
Number of Shares
and Company Options
Name Of Stockholder Beneficially Owned
--------------------------------------- ----------------------------
Shares Options
------ -------
Pier X. Xxxxx 101,666 50,000
Xxxxx X. Xxxxx 100,000 --
Pier X. Xxxxx and Xxxxx A 820,658 --
Xxxxx, as joint tenants
Xxxxx Family Foundation 38,000 --
Xxxxx X. Xxxxx, Trustee 33,333 --
Pier X. Xxxxx, Xx 33,333 --
--------- ---------
1,126,990 50,000
========= =========
17
