EXHIBIT 10.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of October 18, 2001 (this
"Agreement") among Tender Loving Care Health Care Services, Inc., a Delaware
corporation (the "Company"), x-XxxXxxx.xxx, a Nevada corporation ("Parent"), and
TLC Acquisition Corporation, a Delaware corporation and wholly owned subsidiary
of Parent ("Merger Sub").
WITNESSETH:
WHEREAS, concurrently with the execution and delivery of this
Agreement, the parties hereto are entering into an Agreement and Plan of Merger
and Reorganization (as such agreement may hereafter be amended from time to
time, the "Merger Agreement") which provides, upon the terms and subject to the
conditions set forth therein, for (i) the commencement by the Merger Sub of an
offer (the "Offer") to purchase any and all of the outstanding shares of the
Company's common stock, par value $0.01 per share (each a "Share" and
collectively, the "Shares"), at a price of $1.00 per Share net to the Seller in
cash (or any higher price paid for each Share in the Offer, the "Per Share
Amount"), and (ii) the subsequent merger of the Merger Sub with and into the
Company (the "Merger"), whereby each Share then outstanding (other than Shares
owned by Parent or any of its wholly-owned Subsidiaries or held by the Company
and other than dissenting Shares) will be converted into the right to receive
the Per Share Amount;
WHEREAS, as a condition to the willingness of Parent and the
Merger Sub to enter into the Merger Agreement, Parent and the Merger Sub have
required that the Company agree, and in order to induce Parent and the Merger
Sub to enter into the Merger Agreement, the Company has agreed, to grant to the
Merger Sub certain options to purchase Shares upon the terms and subject to the
conditions of this Agreement; and
WHEREAS, capitalized terms used but not defined in this
Agreement shall have the meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
THE TOP-UP OPTION
SECTION 1.01 Grant of Top-Up Stock Option. Subject to the terms and
conditions set forth herein, the Company hereby grants to the Merger Sub an
irrevocable option (the "Top-Up Stock Option") to purchase that number of Shares
(the "Top-Up Option Shares") equal to the number of Shares that, when added to
the number of Shares owned by the Merger Sub, Parent and their Subsidiaries
immediately following consummation of the Offer, shall constitute 90% of the
Shares then outstanding (assuming the issuance of the Top-Up Option Shares) at a
purchase
price per Top-Up Option Share equal to the Per Share Amount; provided, however,
that the Top-Up Stock Option shall not be exercisable if the number of Shares
subject thereto exceeds the number of authorized Shares available for issuance.
The Company agrees to provide Parent and the Merger Sub with information
regarding the number of Shares available for issuance on an ongoing basis.
SECTION 1.02 Exercise of Top-Up Stock Option.
(a) The Merger Sub may, at its election, exercise the Top-Up
Stock Option in whole, but not in part, at any one time after the occurrence of
a Top-Up Exercise Event (as defined below) and prior to the Top-Up Termination
Date (as defined below).
(b) A "Top-Up Exercise Event" shall occur for purposes of this
Agreement upon the Merger Sub's acceptance for payment pursuant to the Offer of
Shares constituting more than [75%] but less than 90% of the Shares then
outstanding on a fully diluted basis.
(c) Except as provided in the last sentence of this Section
1.02, the "Top-Up Termination Date" shall occur for purposes of this Agreement
upon the earliest to occur of:
(i) the Effective Time;
(ii) the date which is 20 business days after the
occurrence of a Top-Up Exercise Event; and
(iii) the termination of the Merger Agreement.
Notwithstanding the occurrence of the Top-Up Termination Date, the Merger Sub
shall be entitled to purchase the Top-Up Option Shares if it has exercised the
Top-Up Stock Option in accordance with the terms hereof prior to such
occurrence. The occurrence of the Top-Up Termination Date shall not affect any
rights hereunder which by their terms do not terminate or expire prior to or as
of such date, unless the Merger Agreement has terminated by its terms prior to
the occurrence of the Top-Up Closing.
(d) In the event the Merger Sub wishes to exercise the Top-Up
Stock Option, the Merger Sub shall send to the Company a written notice (a
"Top-Up Exercise Notice," the date of which notice is referred to herein as the
"Top-Up Notice Date") specifying the denominations of the certificate or
certificates evidencing the Top-Up Option Shares which the Merger Sub wishes to
receive, the place for the closing of the purchase and sale pursuant to the
Top-Up Stock Option (the "Top-Up Closing") and a date not earlier than one day
nor later than ten business days from the Top-Up Notice Date for the Top-Up
Closing; provided, however, that
(i) the Top-Up Closing shall occur concurrently with
the consummation of the Offer,
(ii) if the Top-Up Closing cannot be consummated by
reason of any applicable laws or orders, the period of time that otherwise would
run pursuant to this sentence
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shall run instead from the date on which such restriction on consummation has
expired or been terminated, and
(iii) without limiting the foregoing, if prior
notification to or approval of any governmental entity is required in connection
with such purchase, the Merger Sub and the Company shall promptly file the
required notice or application for approval and shall cooperate in the
expeditious filing of such notice or application, and the period of time that
otherwise would run pursuant to this sentence shall run instead from the date on
which, as the case may be, (A) any required notification period has expired or
been terminated or (B) any required approval has been obtained, and in either
event, any requisite waiting period has expired or been terminated. The Company
shall, promptly after receipt of the Top-Up Exercise Notice, deliver a written
notice to the Merger Sub confirming the number of Top-Up Option Shares and the
aggregate purchase price therefor.
ARTICLE 2
CLOSING
SECTION 2.01 Conditions to Closing. The obligation of the Company to
deliver Top-Up Option Shares upon the exercise of the Top-Up Stock Option is
subject to the following conditions:
(a) any applicable waiting period under the HSR Act, as
defined in Section 3.3 of the Merger Agreement, relating to the issuance of the
Top-Up Option Shares hereunder shall have expired or been terminated; and
(b) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the exercise of the Top-Up
Stock Option or the delivery of the Top-Up Option Shares in respect of any such
exercise.
SECTION 2.02 Closing.
(a) At the Top-Up Closing (i) the Company shall deliver to the
Merger Sub a certificate or certificates evidencing the applicable number of
Top-Up Option Shares (in the denominations designated by the Merger Sub in the
Top-Up Exercise Notice) and (ii the Merger Sub shall purchase each Top-Up Option
Share from the Company at the Per Share Amount. Payment by the Merger Sub for
the Top-Up Option Shares may be made, at the option of the Merger Sub, by
delivery of (i) cash by wire transfer or (ii) a promissory note, in form and
substance reasonably satisfactory to the Company and in a principal face amount
equal to the aggregate amount of the purchase price, which promissory note shall
bear interest at a rate equal to 5% per annum and shall be payable in full with
accrued interest five business days following written demand given by the
Company to the Merger Sub or Parent at any time following the Effective Time.
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(b) The Company shall pay all expenses, and any and all
federal, state and local taxes and other charges, that may be payable in
connection with the preparation, issuance and delivery of stock certificates
under this Section 2.02.
(c) Certificates evidencing Top-Up Option Shares delivered
hereunder may include legends legally required including the legend in
substantially the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. It is understood and agreed that the foregoing legend
shall be removed by delivery of substitute certificate(s) without such legend
upon the sale of the Top-Up Option Shares pursuant to a registered public
offering or Rule 144 under the Securities Act, or any other sale as a result of
which such legend is no longer required.
ARTICLE 3
ADDITIONAL AGREEMENTS
SECTION 3.01 Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, Parent, the Merger Sub and the Company will use
their reasonable best 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 the transactions contemplated by
this Agreement.
SECTION 3.02 Further Assurances. The Company shall perform such further
acts and execute such further documents and instruments as may reasonably be
required to vest in the Merger Sub and Parent the power to carry out the
provisions of this Agreement. If the Merger Sub shall exercise the Top-Up Stock
Option granted hereunder in accordance with the terms of this Agreement, the
Company shall, without additional consideration, execute and deliver all such
further documents and instruments and take all such further action as the Merger
Sub or Parent may reasonably request to carry out the transactions contemplated
by this Agreement.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given as specified in Section 9.1 of the Merger Agreement.
SECTION 4.02 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed, in the
case of an amendment, by each
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party to this Agreement or, in the case of a waiver, by each party against whom
the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 4.03 Expenses. Except as otherwise provided herein or in
Section 8.3 of the Merger Agreement, all costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
SECTION 4.04 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, except that the Merger Sub may
transfer or assign, in whole or from time to time in part, to one or more of its
Affiliates, the right to purchase all or a portion of the Top-Up Option Shares
pursuant to this Agreement, but no such transfer or assignment will relieve the
Merger Sub of its obligations under this Agreement.
SECTION 4.05 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, without regard to
the conflicts of law rules of such state.
SECTION 4.06 Counterparts; Effectiveness; Benefit. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto. No
provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations, or liabilities hereunder upon any Person other than the
parties hereto and their respective successors and assigns.
SECTION 4.07 Entire Agreement. This Agreement and the Merger Agreement
(including the documents and instruments referred to therein) constitute the
entire agreement between the parties with respect to the subject matter of this
Agreement and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 4.08 Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 4.09 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this
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Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such a determination, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
SECTION 4.10 Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to 6 enforce specifically the performance of the terms and provisions hereof,
in addition to any other remedy to which they are entitled at law or in equity.
SECTION 4.11 Termination. This Agreement will terminate upon the
earliest to occur of:
(i) the Effective Time;
(ii) the date which is 20 business days after the
occurrence of a Top-Up Exercise Event; and
(iii) the termination of the Merger Agreement.
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IN WITNESS WHEREOF, Parent, the Merger Sub and the Company
have caused this Agreement to be signed by their respective officers thereunto
duly authorized as of the first date written above.
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Chairman and Chief Executive Officer
X-XXXXXXX.XXX
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: President and Co-Chief Executive Officer
TLC ACQUISITION CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: President and Chief Executive Officer
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