EXHIBIT 10.43
SUPPLEMENTAL SIGNATURE PAGE TO
FOUNTAIN VIEW, INC. INVESTMENT AGREEMENT
Reference is hereby made to that certain Investment Agreement dated as of
March 27, 1998 (the "Investment Agreement") by and among Fountain View, Inc.
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(the "Company"), Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Heritage Fund II,
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L.P. ("Heritage"), Heritage Investors II, L.L.C., Heritage Fund II Investment
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Corporation ("HFIC"), and certain other parties.
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Preliminary Statement
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HFIC has purchased certain securities of the Company (the "Securities")
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pursuant to the Investment Agreement. HFIC desires to transfer certain of the
Securities to Baylor Health Care System ("Baylor") and Xxxxxxx Foundation
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("Xxxxxxx"), and Baylor and Xxxxxxx wish to purchase such Securities from HFIC.
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The Company and HFIC desire that such purchase and sale be consummated, and have
agreed to make certain representations and warranties to Baylor and Xxxxxxx
hereunder.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, HFIC, Baylor and
Xxxxxxx hereby agree as follows:
1. Additional Parties; Purchase of Securities. By its execution of this
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Supplemental Signature Page, (a) each of Baylor and Xxxxxxx is hereby added as a
party to the Investment Agreement, shall be deemed to make the representations
of an Investor therein, and shall have the rights and obligations thereunder as
an Investor, on a pari passu basis with the other Investors party thereto, and
(b) each of Baylor and Xxxxxxx agrees to purchase from HFIC, and HFIC agrees to
sell, the following Securities for the consideration indicated, to be paid on
the date hereof to HFIC by wire transfer of immediately available funds:
Investor Securities Purchased Consideration
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Baylor 9,873 shares of Series A $10,000,000
Preferred Stock and
Warrants to purchase
54,999 shares of Series C
Common Stock
Xxxxxxx 2,469 shares of Series A $ 2,500,000
Preferred Stock and
Warrants to purchase
4,267 shares of Series C
Common Stock
2. Representations of the Company. The Company hereby represents and
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warrants to Baylor and Xxxxxxx as follows:
(a) Each of the representations and warranties of the Company contained in
the Investment Agreement is true and correct in all respects as of the date of
this Supplemental Signature Page.
(b) Each of the statements of the Company contained in the Offering
Circular issued by the Company in connection with its issuance of $120,000,000
of 11 1/4% Senior Subordinated Notes due 2008 is true and correct in all
material respects as of the date of this Supplemental Signature Page, other than
those statements contained therein which are made as of a stated date, which
statements are true and correct in all material respects as of such stated date.
(c) Assuming the due execution and delivery by Baylor and Xxxxxxx of (i)
this Supplemental Signature Page, (ii) the Amendment No. 1 to Stockholders
Agreement dated the date hereof by and among the Company, Heritage, Baylor and
Xxxxxxx (the "Stockholders Amendment"), (iii) the Amendment No. 1 to
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Registration Rights Agreement dated the date hereof by and among the Company,
Heritage, Baylor, Xxxxxxx and certain other parties (the "Registration Rights
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Amendment"), and (iv) the Stock and Warrant Powers dated the date hereof made by
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HFIC in favor of Baylor and Xxxxxxx (the "Xxxxxx", and collectively with this
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Supplemental Signature Page, the Stockholders Amendment and the Registration
Rights Amendment, the "Baylor Documents"), such Baylor Documents (A) have been
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duly executed and delivered by all persons and entities necessary to amend the
Investment Agreement, the Stockholders Agreement and the Registration Rights
Agreement (each as defined in the Investment Agreement) (collectively, the
"Original Documents") as such Original Documents are purported to be amended in
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the Baylor Documents, and (B) convey to Baylor and Xxxxxxx all of the rights
purported to be granted to Baylor and Xxxxxxx thereunder, and make Baylor and
Xxxxxxx parties to the Original Documents, as amended, in accordance with the
terms thereof.
(d) As of the date this Supplemental Signature Page, the Company will
amend its Certificate of Incorporation in the form attached as Exhibit A hereto,
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which amendment has been duly authorized by all requisite corporate action on
behalf of the Company.
3. Representations of HFIC. HFIC hereby represents and warrants to
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Baylor and Xxxxxxx that HFIC is the record and beneficial owner of the
Securities, with good and marketable title to such Securities, free and clear of
all liens, security interests, claims or other encumbrances, other than
restrictions under applicable securities laws and the Stockholders Agreement
referred to in the Investment Agreement.
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4. Covenant and Guaranty of Heritage. By its execution of this
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Supplemental Signature Page, Heritage hereby (a) covenants to use commercially
reasonable efforts to cause the Company to comply in all respects with the
obligations of the Company set forth in Section 2 of the Amendment No. 1 to
Stockholders Agreement dated the date hereof by and among the Company, Heritage,
Baylor and Xxxxxxx, and (b) guarantees HFIC's obligations with respect to the
representations and warranties contained in Section 3 above.
5. Survival. The representations and warranties contained in Section
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2(a) and Section 3 of this Supplemental Signature Page shall survive the
execution, delivery and performance of this Supplemental Signature Page. The
representations and warranties contained in Section 2(b) of this Supplemental
Signature Page shall not survive the execution, delivery and performance of this
Supplemental Signature Page.
6. Miscellaneous. This Supplemental Signature Page (a) shall be binding
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upon and enforceable against the parties and their successors and permitted
assigns, (b) shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts, without giving effect to conflicts of laws
principles, and (c) may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which shall be considered one and
the same instrument.
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IN WITNESS WHEREOF, this Supplemental Signature Page to Fountain View, Inc.
Investment Agreement has been executed as a sealed instrument as of the 4th day
of May, 1998.
FOUNTAIN VIEW, INC.
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By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
BAYLOR HEALTH CARE SYSTEM
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXXX FOUNDATION
By: /s/ H. Xxxxx Xxxxxx
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Name: H. Xxxxx Xxxxxx
Title: Senior Vice President & Chief
Financial Officer
HERITAGE FUND II, L.P.
By: HF Partners II, L.L.C.,
its general partner
By: /s/ [SIGNATURE ILLEGIBLE]^^
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Name:
Title:
HERITAGE FUND II
INVESTMENT CORPORATION
By: /s/ [SIGNATURE ILLEGIBLE]^^
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Name:
Title:
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