EXHIBIT 2.1
Draft: 10/31/96
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment and
Assumption") is dated as of _____________________, 1996 by and among
HealthPartners Investors, LLC, a Delaware limited liability company
("Assignor"), HP Funding, Inc., a Delaware corporation ("Assignee") and
HealthCare Financial Partners, Inc., a Delaware corporation (the "General
Partner").
WITNESSETH:
WHEREAS, by virtue of its purchase of the limited partnership
interests previously held by Farallon Capital Partners, L.P. and RR Capital
Partners, L.P. pursuant to that certain Assignment and Assumption of Partnership
Interests dated as of March 28, 1996, Assignor is the sole limited partner of
that certain Delaware limited partnership known as "HEALTHPARTNERS FUNDING,
L.P." (the "Partnership"), which is currently governed by that certain Amended
and Restated Limited Partnership Agreement dated as of December 1, 1995 by and
between Assignor, as limited partner, and the General Partner, as general
partner (the "Partnership Agreement"); and
WHEREAS, all capitalized terms used but not otherwise defined herein
shall have the respective meanings given them in the Partnership Agreement; and
WHEREAS, Assignor desires to assign to Assignee Assignor's entire
limited partnership interest as the sole limited partner of the Partnership (the
"Partnership Interest"), and Assignee desires to acquire the Partnership
Interest and in consideration therefor to pay to Assignor the Purchase Price (as
defined in Section 2 below).
WHEREAS, Assignee is a wholly-owned subsidiary of the General Partner.
WHEREAS, pursuant to a Roll-Up Agreement, dated as of _______________,
1996 (the "Roll-Up Agreement") between the Partnership, Assignee and the General
Partner, immediately following the Closing hereunder the Partnership shall
be terminated and dissolved and the assets of the Partnership distributed to
Assignee.
WHEREAS, the General Partner contemplates making an initial public
offering of it its common stock (the "IPO") before December 31, 1996 the
proceeds of which will be applied, inter alia, to pay in full the Purchase
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Price.
WHEREAS, Farallon Capital Partners, L.P., and RR Capital Partners,
L.P. (together, the "Farallon Parties") and Assignee intend to enter into a
Registration Rights Agreement, dated as of the date hereof (the "Registration
Rights Agreement"), pursuant to which Assignee agrees to register upon demand
certain shares of Assignee's common stock held by the Farallon Parties.
WHEREAS, the Farallon Parties, the General Partner and Xxxx X.
Xxxxxxx, Xxxxx X. Xxxxx, and Xxxxxx X. Xxxxxxxx, Xx., (the "Principals") intend
to enter into a Shareholders Agreement, dated as of the date hereof (the
"Shareholders Agreement") under which the Farallon Parties are given certain
rights.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Sale. Subject to Section 2 hereof, effective on the Closing Date:
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(i) Assignor hereby assigns, sells, transfers, conveys and sets over to Assignee
all of Assignor's right, title and interest in and to the Partnership Interest,
including, without limitation, all of Assignor's interest in the capital, the
Profits and Losses arising on or after the Closing Date, and all rights to
receive distributions of money, Profits and other assets from the Partnership;
provided, however, that Assignor retains all rights to the Profits and other
amounts which accrue for the period ending on the Closing Date, and (ii)
Assignee assumes and shall be solely responsible for the due and timely
performance of all obligations of Assignor under the Partnership Agreement.
Assignor hereby represents and warrants to Assignee that Assignor has not
heretofore assigned, sold, transferred, conveyed or hypothecated the Partnership
Interest in whole or in part, to any person or entity, and further represents
and warrants to Assignee that it owns the Partnership Interest free and clear of
all liens, claims, charges and other encumbrances.
2. Purchase Price. The aggregate purchase price payable by Assignee
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in consideration for the assignment and transfer of the Partnership Interest by
Assignor shall be an amount equal to Assignor's unreturned capital plus
Assignor's share of accrued but undistributed profits as of the Closing Date
(the "Purchase Price"). The Purchase Price shall be paid as follows:
(a) Payment on Closing Date. On the Closing Date, Assignee shall pay
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to Assignor $__________, which represents an estimate of the Purchase Price.
(b) Post-Closing Adjustments. Within 60 days after Closing, the
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General Partner will prepare and promptly deliver to Assignor a final accounting
(which shall include all supporting information) of: (i) Partnership income and
expenses, profits and allocations through the Closing Date and (ii) the
calculation of the Purchase Price. The final accounting shall be subject to
dispute resolution as follows: (I) Assignor shall have 60 days to review the
final accounting; (II) if Assignor disputes the final accounting, Assignor and
the General Partner shall attempt in good faith to resolve the dispute for 30
days and if they fail to so resolve the dispute within such 30-day period, each
will promptly appoint an accounting firm (the expenses of which shall be paid by
the party appointing such accounting firm) which two firms will have 30 days to
resolve any dispute (and any dispute so resolved shall be binding); (III) if the
two accounting firms fail to resolve such dispute within 30 days, then those two
accounting firms shall mutually appoint a third accounting firm to promptly
resolve the remaining disputed items whose determination shall be binding (and
whose expenses shall be shared evenly). An adjustment payment shall be made by
Assignee (if Assignee has not paid the full Purchase Price) or Assignor (if
Assignor has received in excess of the Purchase Price) immediately following and
in accordance with the determinations made under such final accounting or
dispute resolution, as applicable.
(c) Calculations. For purposes of determining the Purchase Price, the
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following rules shall apply:
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(i) All fees and expenses incurred in connection with this
Agreement, the Transaction Documents and the IPO shall be charged to and paid by
the General Partner and shall be "General Partner Expenses" and not "Partnership
Expenses" (as defined in Section 2.06 of the Partnership Agreement).
(ii) the Partnership's fiscal year shall be deemed to end on
the Closing Date and all calculations of income, profit and loss and all other
allocations shall be made through such date.
(iii) Assignor's unreturned capital shall not be reduced by any
reserve or other charge of any kind except for reserves or charges related to
specific losses; provided that if any such amount against which a reserve was so
taken is subsequently collected, the Assignee shall promptly notify Assignor
thereof and pay to Assignor the full amount which would have been payable under
this Agreement as if no such reserve had ever been taken.
3. Conditions. The obligations of the Assignor under this Assignment
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and Assumption are subject to the fulfillment of each of the following
conditions, unless waived by the Assignor in writing, at or before the closing
(the "Closing"; and the date on which the Closing occurs is the "Closing Date")
of the sale and transfer of the Partnership Interest.
(a) Representations and Warranties. The representations and
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warranties of the General Partner and Assignee contained in this Assignment and
Assumption shall be true in all material respects on and as of the Closing Date
with the same force and affect as though made on and as of the Closing Date.
(b) Performance of Agreements. The General Partner and Assignee shall
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have performed and complied with all of its covenants and other obligations
contained in this Assignment and Assumption, the Roll-Up Agreement, the
Registration Rights Agreement, the Shareholders Agreement and the other
Transaction Documents required to be performed or complied with at or before the
Closing Date.
(c) IPO. The IPO shall have occurred and been consummated.
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(d) Roll-Up. Assignee, the General Partner and the Partnership shall
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have executed and delivered the Roll-Up Agreement and the transactions
contemplated thereunder, including without limitation the transfer of the
properties, assets, rights, business, contracts, goodwill and liabilities of the
Partnership to the Assignee (such transfer, collectively the "Roll-Up") shall
occur simultaneously herewith.
(e) Consents. All consents required in connection with this
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Assignment and Assumption, the Roll-Up Agreement, the Registration Rights
Agreement, the Shareholders Agreement, the exercise of the Warrants and the
agreements and other documents executed in connection therewith (collectively,
the "Transaction Documents") and the transactions contemplated thereby
(including without limitation the consent to this Agreement and Assumption from
Fleet (attached as Exhibit 3(e)) shall have been received by the Assignee,
the General Partner and Assignor.
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(f) Registration Rights Agreement. The Farallon Parties and the
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General Partner shall have executed and delivered the Registration Rights
Agreement related to the shares of General Partner Common Stock owned (or to be
owned) by the Farallon Parties in the form attached as Exhibit 3(f).
(g) Shareholders Agreement. The Farallon Parties, the General Partner
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and the Principals shall have entered into the Shareholders Agreement in the
form attached as Exhibit 3(g).
(h) Purchase Price. Assignor shall have received payment of the
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Purchase Price payable under Section 2 hereof.
(i) Resolutions. The General Partner and Assignee shall have duly
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adopted Board and Shareholder resolutions approving the Transaction Documents
and the transactions contemplated thereby, and Assignor shall have received from
the chief executive officers of the General Partner and Assignee a certificate
certifying: (i) adoption of such resolutions; (ii) the Certificate of
Incorporation and Bylaws; and (iii) the incumbency of officers.
4. Representations and Warranties of Assignee. The General Partner
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and Assignee represent and warrant to Assignor as of the date hereof and as of
the Closing Date as follows:
(a) Corporate Existence and Power. Each of the General Partner and
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Assignee (i) is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and (ii) has
all necessary corporate power and authority to execute and deliver each of the
Transaction Documents to which it is a party and to consummate the transactions
contemplated thereby.
(b) Capitalization. As of the date of this Assignment and Assumption,
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3,799,991 shares of Common Stock of the General Partner and -0- shares of
Preferred Stock of the General Partner (together with the Common Stock, the
"Company Stock") are outstanding, all of which shares have been duly authorized,
validly issued and are fully paid and nonassessable. Except for such Company
Stock, there are no shares of capital stock or other equity securities of the
General Partner outstanding. The Farallon Parties collectively own of record
549,493 shares of Common Stock which shall equal 14.46% of the total shares of
Common Stock (assuming exercise of the Farallon Warrants referred to in Section
4(d)) of the General Partner outstanding immediately before the closing of the
IPO (determined on a fully diluted basis).
(c) No Other Rights. Except as described in the Registration
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Statement filed by the General Partner in connection with the IPO, (1) there are
no preemptive or similar rights on the part of any holder of any class of
securities of the General Partner, and (2) no options, warrants, conversion or
other rights, agreements or commitments of any kind are outstanding that
obligate the General Partner, contingently or otherwise, to issue, sell,
purchase, return or redeem any shares of its capital stock of any class or any
securities convertible into or exchangeable for any such shares or that give any
individual or entity the right to receive any benefits or rights substantially
similar to any enjoyed by or accruing to holders of shares of capital stock of
the General Partner, and no authorization therefor has been given. No shares of
capital stock of the General Partner are held in the General Partner treasury
and no shares of capital stock of the General Partner are reserved for issuance
for those rights set forth on Schedule 3(c). There are no
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voting trusts, stockholder agreements, proxies or other agreements or
understandings in effect with respect to the voting or transfer of any of the
Company Stock. The Company Stock has not been issued in violation of any
purchase option, call, right of first refusal or preemptive or similar rights.
(d) Exercise of Warrant. There is sufficient Common Stock authorized
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and reserved for issuance by the General Partner for the exercise by Assignor of
the Warrants granting Assignor the right to purchase an aggregate of 379,998
shares of Common Stock of the General Partner (the "Farallon Warrants"). The
Farallon Warrants were duly granted and are legal, valid and binding on the
General Partner. The 379,998 shares of Common Stock issuable upon the exercise
of the Warrants will be duly authorized, validly issued and fully paid and
non-assessable.
(e) Authorization; Binding Effect. The execution and delivery by
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each of the General Partner and Assignee of each of the Transaction Documents to
which it is or may become a party, the performance by it of its obligations
under the Transaction Documents and the consummation of the transactions
contemplated hereby and thereby has been duly authorized by all necessary
corporate action. This Assignment and Assumption has been duly executed and
delivered by the General Partner and Assignee, and each of the Transaction
Documents to which the General Partner or Assignee is or may become a party is,
or when executed and delivered in accordance with this Assignment and Assumption
will be, legal, valid and binding obligations of the General Partner or
Assignee, as the case may be, enforceable against it in accordance with its
terms.
(f) Contravention. Neither the execution, delivery and performance of
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this Assignment and Assumption or the other Transaction Documents by the General
Partner or Assignee nor the consummation of the transactions contemplated hereby
and thereby will (with or without notice or lapse of time or both) (ii) conflict
with, violate or breach any provision of the certificate or incorporation or
bylaws of the General Partner or Assignee, (iii) violate, conflict with or
result in a breach of any writ, judgment, injunction, order, decree or award of
any governmental body by which either the General Partner or Assignee or their
respective properties may be bound or affected, or (iii) conflict with, result
in a default under, or give rise to a right of termination, cancellation, or
acceleration or to a loss of a benefit under any material agreement to which
Assignee or the General Partner is a party or by which Assignee or the General
Partner or their respective properties may be bounded or affected.
(g) Approvals. No authorization, consent, order or approval of,
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notice to or registration or filing with, or any other action by any person,
entity or governmental body is required in connection with (a) the due execution
and delivery by Assignee or the General Partner of any of the Transaction
Documents to which either is or may become a party, (b) the consummation of the
transactions contemplated by the Transaction Documents, or (c) the performance
by Assignee and the General Partner of their obligations under the Transaction
Documents.
(h) Holders of Record. Of the 169,495 shares of Common Stock
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of the General Partner owned of record by the Farallon Parties (the "Farallon
Shares"), which excludes the 379,998 shares of Common Stock of the General
Partner issued or to be issued in connection with the exercise of the Farallon
Warrants, (i) 169,498 shares were held of record by Cash Flow Management, L.P.
from December 28, 1994 to January 31, 1996; (ii) 144,073 shares were held of
record by Farallon Capital Partners, L.P. and 25,422 shares were held of record
by R.R. Capital Partners, L.P., from January 31, 1996 to Xxxxx 0, 0000, (xxx)
169,495 shares were held of record by HealthPartners Investors, LLC from April
1, 1996 to November 5, 1996 and (iv) from and after November 5, 1996, 143,814
shares were held of record by Farallon Capital Partners, L.P. and 25,081 shares
were held of record by R.R. Capital Partners, L.P.. During the period which it
held the Farallon Shares, Cash Flow Management L.P. held approximately 4.5 % of
the General Partner's Common Stock on a fully diluted basis,
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Of the 379,998 shares of Common Stock of the General Partner issuable upon
exercise of the Farallon Warrants (i) 322,998 shares were held of record by
Farallon Capital Partners, L.P. from December 28, 1994 to March 28, 1996;
(ii) 57,000 shares were held of record by Tinicum Partners, L.P. from December
28, 1994 to December 1, 1995; (iii) 37,000 shares were held of record by R R
Capital Partners, L.P. from December 1, 1995 to March 28, 1996; (iv) 379,998
shares were held of record by Assignor from March 28, 1996 to November 5, 1996
and (v) from and after November 5, 1996 322,423 shares were held of record by
Farallon Capital Partners, L.P. and 57,575 shares were held of record by R R
Capital Partners, L.P.
5. Acceptance of Assignment. Assignee hereby accepts the assignment
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of the Partnership Interest, and agrees to be bound by all of the terms and
conditions of the Partnership Agreement applicable to Limited Partners.
Assignee hereby represents for the benefit of Assignor and the Partnership that
it is acquiring the Partnership Interest for its own account and not with a view
to the resale or distribution thereof, and agrees that it will not transfer,
sell or dispose of, or offer to transfer, sell or dispose of, all or any portion
of the Partnership Interest to any person or persons in any manner that would
violate or cause the Partnership or the General Partner to violate applicable
Federal or state securities laws.
6. Covenants.
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(a) Legal Expenses. Promptly after the Closing, the General Partner
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shall pay all reasonable costs and expenses, including without limitation, all
reasonable legal fees, incurred by Assignor with respect to the preparation,
negotiation, execution and enforcement of the Transaction Documents.
(b) Further Assurances. Each party shall promptly upon request by the
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other party correct any defect or error that may be discovered in any Sale
Document or in the execution, acknowledgment or recordation of any Sale
Document.
7. Release. The General Partner agrees and acknowledges that
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Assignor has fully performed all commitments and obligations under the
Partnership Agreement and has no further commitments, obligations or liabilities
thereunder except only any obligation under Section 2 hereof following a final
accounting to return excess payments received. Assignor agrees that from and
after the Closing Date it has no further rights under the Partnership Agreement
except the right to receive the Purchase Price provided herein which shall
continue in full force and effect.
8. Applicable Law. This Assignment and Assumption shall be
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interpreted, construed and enforced in accordance with the laws of the State of
Delaware.
9. Successors and Assigns. This Assignment and Assumption shall be
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binding upon and shall inure to the benefit of Assignor, the General Partner and
Assignee and their respective legal representatives, successors and assigns. The
Farallon Parties which are not signatories to this Agreement are nevertheless
third party beneficiaries hereof.
10. Severability. Should any party of this Assignment and Assumption
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for any reason be declared or held invalid, unenforceable or illegal, such
invalidity, unenforceability, or illegality shall not affect the validity of any
remaining portion, which remaining portion shall remain in force and effect as
if this Assignment and Assumption had been executed with the invalid,
unenforceable or illegal portion thereof eliminated.
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11. Integration. This Assignment and Assumption contains the final
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and entire agreement between the parties thereto with respect to the assignment
and transfer of the Partnership Interest, and is intended to be an integration
of all prior negotiations and understandings. The parties make no
representations, warranties, covenants, express or implied, except as expressly
set forth herein. No change or modification of this Assignment and Assumption
shall be valid unless the same is in writing and is signed by the party against
which it is sought to be enforced.
12. No Waiver; Remedies. No failure or delay by any party in
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exercising any right, power or privilege under this Assignment and Assumption
will operate as a waiver of the right, power or privilege. A single or partial
exercise of any right, power or privilege will not preclude any other or further
exercise of the right, power or privilege or the exercise of any other right,
power or privilege. The rights and remedies provided in this Assignment and
Assumption will be cumulative and not exclusive of any rights or remedies
provided by law.
13. Counterparts. This Assignment and Assumption may be executed in
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counterparts, each of which shall constitute an original and both of which, when
taken together, shall constitute a single instrument.
14. Descriptive Headings. The headings in this Assignment and
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Assumption are included for convenience of reference only and will not affect in
any way the meaning or interpretation of this Assignment and Assumption.
15. Termination. This Assignment and Assumption and all obligations
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hereunder shall terminate on December 31, 1996, unless on or prior to such date
Assignee shall have consummated the IPO.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Assignment and Assumption of Partnership Interest as of the date first
above written.
ASSIGNOR:
HEALTHPARTNERS INVESTORS, LLC
a Delaware limited liability company
By: Farallon Capital Management, L.L.C., its Manager
By: ________________________________
Name:
Title:
ASSIGNEE:
HP FUNDING, INC.,
a Delaware corporation
By: ________________________________
Name:
Title:
GENERAL PARTNER:
HEALTHCARE FINANCIAL PARTNERS, INC.
a Delaware corporation
By: ________________________________
Name:
Title:
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CONSENT
The undersigned, in its capacity as general partner of HealthPartners
Funding, L.P., hereby consents to the assignment and assumption pursuant to the
foregoing Assignment and Assumption of a Partnership Interest, and to the
substitution of Assignee as a Limited Partner in the Partnership.
IN WITNESS WHEREOF, the undersigned has executed this Consent as of the
_____ day of November, 1996.
ATTEST: HEALTHCARE FINANCIAL PARTNERS, INC.
(Seal) a Delaware corporation
By: ____________________ By: __________________________________
Name: Name:
Title: Title:
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EXHIBIT 3(e)
FLEET CONSENT
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EXHIBIT 3(f)
REGISTRATION RIGHTS AGREEMENT
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EXHIBIT 3(g)
SHAREHOLDERS AGREEMENT
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DRAFT of 10/31/96
SHAREHOLDERS AGREEMENT
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SHAREHOLDERS AGREEMENT made as of November ____, 1996 by and among
HealthCare Financial Partners, Inc., a Delaware corporation (the "Company"),
Farallon Capital Partners, L.P., a California limited partnership ("FCP"), RR
Capital Partners, L.P., a Delaware limited partnership ("RR" and together with
FCP the "Farallon Holders"), and Xxxx X. Xxxxxxx, Xxxxx X. Xxxxx, and Xxxxxx X.
Xxxxxxxx, Xx., (collectively, the "Principals").
WHEREAS, the Farallon Holders currently hold 169,495 shares of common
stock of the Company (the "Common Stock") and warrants (the "Warrants") to
purchase another 379,998 shares of Common Stock (such shares, together with any
securities issued in respect of such shares by reason of any stock split, stock
dividend, recapitalization, reorganization or similar event, are hereinafter
referred to as the "Farallon Shares").
WHEREAS, the Company plans to make an Initial Public Offering of
Common Stock on or around November 21, 1996.
WHEREAS, Health Partners Investors, LLC, a Delaware limited liability
company, HP Investors, HP Funding, Inc., a wholly owned subsidiary of the
Company, and the Company are entering into that certain Assignment and
Assumption Agreement dated the date hereof and execution and delivery of this
Agreement is a condition to HP Investors' agreement to consummate the
transactions contemplated hereunder.
WHEREAS, terms used herein have the meanings stated in Section 3.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
Section 1. Covenants. For so long as the Farallon Holders, the
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Farallon Affiliates and the Farallon Transferees collectively hold at least
295,000 of the Farallon Shares as constituted on the date of this Agreement,
then the following shall apply:
(a) No Affiliated Transactions. The Company shall not engage
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in any transaction with any Principal or any Principal Affiliate unless (i) such
transaction is upon fair and reasonable terms no less favorable to the Company
than it would obtain in a comparable arm's length transaction with a person who
is not one of the Principals or a Principal Affiliate or (ii) with respect to
any transaction involving a Principal or a Principal Affiliate in its capacity
as an employee of the Company, such transaction is fair and reasonable and
consistent with the policies of the Company which are applied to all of its
employees.
(b) No Cheap Stock. The Company and each entity in which the
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Company owns any interest shall not issue or grant any Equity Right to any
Principal or Principal Affiliate unless at
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such time the Principal or the Principal Affiliate, as the case may be, pays to
the Company in cash in full the fair market value of such Equity Right;
provided, however, this provision shall not apply to the issue, grant or
exercise of an option to purchase 37,000 shares of Common Stock to each of the
Principals or to the grant of an Equity Right (provided payment is required
under the terms of a grant) to any person at not less than the fair market value
of such Equity Right on the date of grant.
(c) Issuance to Principals. In the event that the Company
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fails to consummate an Initial Public Offering on or before December 31, 1996,
if after the Warrant Exercise Date (i) the Company sells shares of Common Stock
to any of the Principals or Principal Affiliates or to Xxxxxxx X. Xxxxxxx or J.
Xxxxxxxx Xxxxx or any of their respective family members (including parents,
siblings and children) or any entity directly or indirectly controlled by either
of such persons (collectively, the "Existing Shareholders"), or (ii) the Company
issues any securities convertible into shares of Common Stock to any of the
Existing Shareholders or (iii) the Company issues any option, warrant or other
right to purchase shares of Common Stock to any Existing Shareholders
(collectively, the "Additional Equity Rights"), then the Farallon Holders shall
be issued identical Additional Equity Rights except that such issue shall be for
a number of shares such that each Farallon Holder's percentage ownership of the
Company represented by the Warrant Shares immediately prior to the issuance of
the Additional Equity Rights to the Existing Shareholders shall be preserved (as
determined on a fully diluted basis assuming exercise and conversion of all
Additional Equity Rights of the Company including without limitation those
issued to the Existing Shareholders); provided, however, that if the Existing
Shareholders provide any consideration to the Company in exchange for any such
Additional Equity Rights, then such issuance of such Additional Equity Rights to
each Farallon Holder shall be conditioned upon the receipt by the Company of
cash consideration from such Farallon Holder in an amount equal to the same
consideration per share received by the Company from the Existing Shareholders
for such Additional Equity Rights. The Company shall notify the Farallon Holders
of the occurrence of any event described in clauses (i), (ii) and (iii) hereof.
(d) Tag-Along Rights. If any Principal or Principal Affiliate
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from time to time proposes to sell any stock of the Company (a "Selling Party"),
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then
(i) the Selling Party (or the related Principal if any
Principal Affiliate is the Selling Party) shall promptly notify each Farallon
Holder thereof in writing including all material terms and conditions thereof;
(ii) each Farallon Holder shall have 20 days to elect to
sell up to the portion (calculated as the percentage of such Farallon Holder's
Farallon Shares as equals the percentage of the Selling Party's stock of the
Company which is proposed to be sold) of its Farallon Shares on the same terms
and conditions;
(iii) the sales by the Selling Party and the Farallon
Holders (with respect to the Farallon Shares the Farallon Holders elect to sell)
shall occur simultaneously (and the sale by the Selling Party shall not occur
unless the sale by the Farallon Holders (with respect to the Farallon Shares
such Farallon Holders elect to sell) also occurs.
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Section 2. Rule 144 Reporting
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(a) With a view to making available the benefits of certain
rules and regulations of the Commission which may permit the sale by the
Farallon Holders to the public without registration, the Company agrees, but
only after and for so long as the Company becomes subject to the requirements of
Section 13 or 15(d) of the Securities Exchange Act, to:
(i) Make and keep public information available as those
terms are understood and defined in Rule 144 under the Securities Act and all
such information required to sell securities under Rule 144, at all times from
and after 10 days following the effective date of the Initial Public Offering;
(ii) File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Securities and Exchange Act at any time after it has become subject to such
reporting requirements; and
(iii) So long as any Farallon Holder owns any restricted
securities, as such term is defined in Rule 144 ("Restricted Securities"),
furnish to such Farallon Holder forthwith upon its request a written statement
by the Company as to its compliance with the reporting requirements of Rule 144
and of the Securities Act and the Securities and Exchange Act, a copy of the
most recent annual or quarterly report of the Company, and such other reports
and documents so filed as the Farallon Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Farallon Holder
to sell any such Restricted Securities without registration.
(b) In the event any Farallon Holder sells any Restricted
Securities under Rule 144, such Farallon Holder shall comply with all
requirements of Rule 144 and of the Securities Act in connection with such sale
and shall furnish to the Company and the Company's stock transfer agent an
opinion of counsel reasonably satisfactory to the Company to the effect that all
such requirements have been complied with.
Section 3. Certain Definitions. As used in this Agreement, the
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following terms shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" has the meaning stated in the first recital of this
Agreement.
"COMPANY" has the meaning stated in the heading of this Agreement.
"EQUITY RIGHT" means: (i) any class, series or type of the Company's
stock or securities ("Company Securities"), (ii) securities or instruments
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convertible into any Company Securities,(ii)
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any options, warrants or rights to acquire any Company Securities, and (iv) any
"phantom" or similar rights with respect to any Company Securities.
"FARALLON HOLDER" shall have the meaning stated in the heading of this
Agreement.
"FARALLON AFFILIATE" means with respect to any Farallon Holder
each entity, directly or indirectly, controlled by, under common control with or
controlling such Farallon Holder [and each entity controlled or managed by
Farallon Partners, L.L.C. or Farallon Capital Management, L.L.C.]
"FARALLON TRANSFEREE" means each transferee of all or any of any
Farallon Holder's rights hereunder.
"INITIAL PUBLIC OFFERING" means the date of the closing of a public
offering pursuant to an effective Registration Statement filed under the
Securities Act covering the sale of common stock of the Company.
"PRINCIPAL" means Xxxx X. Xxxxxxx, Xxxxx X. Xxxxx, and Xxxxxx X.
Xxxxxxxx, Xx.
"PRINCIPAL AFFILIATE" means with respect to any Principal, his family
members (including parents, siblings and children) and each entity directly or
indirectly controlled by such Principal.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer to a
registration of the sale of securities of the Company effected by preparing and
filing a Registration Statement in compliance with the Securities Act and
applicable rules and regulations thereunder, which shall become effective.
"WARRANT" has the meaning stated in the first recital of this
Agreement.
"WARRANT EXERCISE DATE" means the date that the Warrants are
exercised.
"WARRANT SHARES" shall mean the shares of Common Stock received by the
Farallon Warrant Holders in connection with the exercise of the Warrants.
Section 4. Exercise of Warrants. FCP and RR shall exercise the
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Warrants in full on or prior to November ___, 1996.
Section 5. Termination. This Agreement and all obligations of the
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parties hereunder (except for the obligation of the Company under Section 1(c)
hereof) shall terminate if the Assignment and Assumption Agreement terminates
pursuant to Section 15 thereof or on the third anniversary hereof.
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Section 6. Miscellaneous
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(a) Amendments and Waivers. Except as otherwise provided
----------------------
herein, the provisions of this Agreement may be amended or modified only by a
writing signed by the parties hereto.
(b) Notices. All notices, statements, instructions or other
-------
communications or documents to be given under this Agreement or under any other
agreement or document delivered in connection with this Agreement, if any, shall
be in writing. They shall be delivered personally; or by mail in a sealed
envelope, first class postage prepaid and either certified or registered, return
receipt requested (notices mailed to or from places outside the United States
shall be mailed via air mail); or by telefax, telegraph, or other electronic
means, with a copy mailed as provided above; all to be addressed as set forth on
the signature pages hereof, or to such other address as may be designated from
time to time by notice given in the manner provided by this paragraph. Notices
to the Farallon Holders shall include a copy sent at the same time and by the
same means to Xxxxxxxx Xxxxxx Xxxxx & Xxxx, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (Attention: Xxxxxxx X. Xxxx). Notices delivered personally shall
be deemed given on the date delivered. Notices delivered by telefax, telegraph,
telex or other electronic means shall be deemed given on the date sent if the
confirming copy is mailed on the same date. Mailed notices shall be deemed given
on the date received as shown on the return receipt.
(c) Governing Law. This Agreement and each other agreement or
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document delivered in connection with this Agreement, if any, shall be governed
by and construed in accordance with the laws of the State of Delaware.
(d) Assignment; binding effect. This Agreement shall be
--------------------------
binding upon and inure to the benefit of the parties and their respective heirs,
legal representatives, successors and permitted assigns.
(e) Headings. Headings are included in this Agreement for
--------
convenience of reference only. They are not a part of this Agreement. No
interpretation or construction of the Agreement shall be derived from or based
on headings.
(f) Entire agreement. This agreement; any other agreement or
----------------
document delivered in connection with this Agreement, if any; and the
accompanying Schedules, if any; state the entire agreement and understanding of
the parties on the subject matter of the Agreement, and supersede all previous
agreements, arrangements, communications and understandings relating to that
subject matter.
(g) Counterparts. This Agreement may be signed in two or more
------------
counterparts, each of which shall be deemed an original, with the same effect as
if all signatures were on the same document.
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(h) Relationship of parties. Nothing in this Agreement shall
-----------------------
be deemed to constitute any party a partner, joint venturer, employer, employee,
master, servant, principal or agent of any other party or of any other person.
(i) Additional documents, etc. In connection with this
--------------------------
Agreement and all transactions contemplated hereby, each party agrees without
further consideration to execute and deliver such additional documents and to
perform such additional acts as may be necessary to carry out and perform all of
the terms and conditions of this Agreement and all transactions contemplated
hereby. If a party fails to execute and deliver such additional documents or to
perform such additional acts, the then-current officers of the each other party
are hereby appointed attorneys-in-fact of the failing party to execute and
deliver such additional documents or to perform such additional acts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written.
HEALTHCARE FINANCIAL PARTNERS, INC.
Address:
By:______________________________
FARALLON CAPITAL PARTNERS, L.P.
Address:
c/o Farallon Capital By: Farallon Partners, L.L.C.
Management, L.L.C. its General Partner
One Maritime Plaza
Suite 1325 By:_________________________
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
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RR CAPITAL PARTNERS, L.P.
Address:
c/o Farallon Capital By: Farallon Partners, L.L.C.
Management, L.L.C. its General Partner
One Maritime Plaza
Suite 1325 By:_________________________
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Address:
_________________________________
Xxxx X. Xxxxxxx
Address:
_________________________________
Xxxxx X. Xxxxx
Address:
_________________________________
Xxxxxx X. Xxxxxxxx, Xx.
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