STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of September 8, 1999 among Plato
Holdings, Inc., a Delaware corporation ("Parent"), New Plato Acquisition, Inc.,
a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"), and NC
Resources, Inc., a Delaware corporation ("Target Parent"), and NovaCare, Inc., a
Delaware corporation ("Ultimate Parent").
WHEREAS, Target Parent beneficially owns and is the holder of record,
as of the date hereof, of 19,400,000 shares of common stock, $.01 par value
("Common Stock"), of NovaCare Employee Services, Inc., a Delaware corporation
(the "Company"), which shares ("the Covered Shares") represent a majority of the
issued and outstanding shares (the "Shares") of capital stock of the Company;
WHEREAS, the Board of Directors of each of Parent, Sub and the Company
has approved, and deemed it advisable and in the best interests of its
respective stockholders to consummate the acquisition of the Company by Parent
by means of a merger (the "Merger") of Sub with and into the Company upon the
terms and subject to the conditions set forth in an Agreement and Plan of Merger
(the "Merger Agreement") dated the date hereof by and among Parent, Sub and the
Company;
WHEREAS in furtherance thereof, it is proposed that Parent and Sub
make a cash tender offer (the "Offer") to acquire any and all shares of the
issued and outstanding Common Stock of the Company for $2.50 per share, net to
the seller in cash; and
WHEREAS, as a condition and inducement to each of Parent and Sub to
enter into the Merger Agreement and to make the Offer, Parent and Sub have
requested and Target Parent and Ultimate Parent have agreed, to execute this
Agreement pursuant to which, among other things, Target Parent agrees to tender
the Covered Shares held by it in the Offer and to grant Parent a proxy with
respect of the voting of the Covered Shares or, at Parent's election, to sell
such Covered Shares to Sub.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
OF ULTIMATE PARENT AND TARGET PARENT
Ultimate Parent and Target Parent, jointly and severally, represent
and warrant to each of Parent and Sub that:
Section 1.1 Organization and Valid Title. Each of Ultimate Parent and Target
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Parent is validly existing and in good standing under the laws of the
jurisdiction of its organization. Target Parent is the sole, true, lawful and
direct beneficial owner and holder of record as of the date of this Agreement of
the Covered Shares with no restrictions on the Target Parent's voting rights or
rights of disposition pertaining thereto except for (i) a pledge (the "Pledge")
of the Covered Shares to PNC Bank, National Association ("PNC Bank"), as agent,
pursuant to the Credit Agreement dated as of May 27, 1994, as amended, between
Ultimate Parent and its subsidiaries and PNC Bank, as agent for the banks named
in such Credit Agreement (the "Credit Agreement"), (ii) the agreement made
pursuant to Articles III and IV hereof and (iii) restrictions arising under the
U.S. federal securities laws and state "blue sky" laws. Except for the Pledge,
Target Parent has good and valid title to the Covered Shares, free and clear of
any and all claims, liens, charges, encumbrances and security interests. Upon
tender of the Covered Shares pursuant to Article III or sale of the Covered
Shares pursuant to Article IV, Target Parent shall convey to Sub or Parent, as
the case may be, good and valid title to the Covered Shares, free and clear of
any and all claims, liens, charges, encumbrances and security interests. None
of the Covered Shares are subject to any voting trust or other agreement or
arrangement with respect to the voting of such Covered Shares, other than the
Pledge and the agreement made pursuant to Articles III and IV hereof. When used
herein with respect to any Covered Share, the "beneficial ownership" thereof
means the power to vote or dispose of, or direct the voting or disposition of,
such Covered Share.
Section 1.2 Non-Contravention and Consents. Upon the receipt of any
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stockholder approval of Ultimate Parent required by the General Corporation Law
of the State of Delaware (the "DGCL") approving the agreement to tender, the
grant of the irrevocable proxy and the agreement to sell the Covered Shares to
Parent contained in Article III of this Agreement (the "Required Stockholder
Approval"), each of Ultimate Parent and Target Parent has all requisite
corporate right, power and
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authority to execute, deliver and perform this Agreement. The execution,
delivery and performance by each of Ultimate Parent and Target Parent of this
Agreement do not and will not violate any provision of the Certificate of
Incorporation or By-Laws of either Ultimate Parent or Target Parent or
contravene or constitute a default under or give rise to a right of termination,
cancellation or acceleration of any right or obligation of either of Ultimate
Parent and Target Parent or to a loss of any benefit of either Ultimate Parent
or Target Parent under any provision of applicable law or regulation or of any
agreement, judgment, injunction, order, decree, or other instrument binding on
either Ultimate Parent or Target Parent or result in the imposition of any lien
on any asset of either Ultimate Parent or Target Parent. Each of Ultimate Parent
and Target Parent has obtained all consents and approvals required by it in
connection with the execution, delivery and performance of this Agreement, other
than the Required Stockholder Approval and any consents or approvals required
under the Credit Agreement which shall be obtained prior to the date of the
Special Meeting (as hereinafter defined).
Section 1.3 Binding Effect. The execution, delivery and performance of this
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Agreement have been duly authorized by the Board of Directors of Ultimate Parent
and Target Parent and the stockholder of Target Parent and no other corporate
action on the part of either Ultimate Parent or Target Parent is necessary in
order to authorize the execution, delivery and performance by Ultimate Parent
and Target Parent of this Agreement other than the Required Stockholder
Approval. This Agreement has been duly executed and delivered by Ultimate
Parent and Target Parent and is the valid and binding agreement of Ultimate
Parent and Target Parent, enforceable against Ultimate Parent and Target Parent
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights generally.
Section 1.4 Total Shares. The Covered Shares are the only shares of Common
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Stock directly beneficially owned or held of record by Target Parent and Target
Parent does not own any option to purchase or rights to subscribe for or
otherwise acquire any securities of the Company or have any other interest in or
voting rights with respect to any securities of the Company.
Section 1.5 Board Approvals.
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(a) Ultimate Parent's Board, at a meeting duly called and held, has (i)
unanimously determined that this Agreement and the transactions
contemplated hereby are advisable and in the best interests of the
stockholders of
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Ultimate Parent, (ii) approved this Agreement and the transactions
contemplated hereby, and (iii) resolved to recommend that the stockholders
of Ultimate Parent approve the matters requiring the Required Stockholder
Approval, and none of the aforesaid actions by Ultimate Parent's Board has
been or will be amended, rescinded or modified.
(b) Target Parent's Board, at a meeting duly called and held, has (i)
unanimously determined that this Agreement and the transactions
contemplated hereby are advisable and in the best interests of the
stockholder of Target Parent, (ii) approved this Agreement and the
transactions contemplated hereby, and (iii) resolved to recommend that the
stockholder of Target Parent approve this Agreement and the transactions
contemplated hereby and none of the aforesaid actions by Target Parent's
Board has been or will be amended, rescinded or modified. Ultimate Parent,
as the sole stockholder of Target Parent, has, in accordance with
Applicable Law (as defined in the Merger Agreement), authorized this
Agreement and the transactions contemplated hereby and by the Merger
Agreement.
Section 1.6 Vote Required. The affirmative vote of the holders of a bare
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majority of the outstanding shares of Common Stock of Ultimate Parent is the
only vote of the holders of any class or series of Ultimate Parent's capital
stock necessary for the Required Stockholder Approval. None of the other
transactions contemplated by this Agreement requires under Applicable Law (as
defined in the Merger Agreement) or Ultimate Parent's organizational documents,
any approval of the stockholders of Ultimate Parent.
Section 1.7 Opinion of Financial Advisors. Ultimate Parent Board has received
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the opinion of Xxxxxxxxxxx Xxxxxxx & Co., Inc. dated September 8, 1999, to the
effect that, as of such date, and based upon the assumptions made, matters
considered, and limits of review set forth therein, the applicable Merger
Consideration (as defined in the Merger Agreement) is fair to Ultimate Parent,
from a financial point of view.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Each of Parent and Sub represents and warrants to Ultimate Parent and
Target Parent that it has all requisite corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by each of Parent and Sub of this Agreement
have been
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duly authorized by the Board of Directors of each of Parent and Sub
and no other corporate action on the part of each of Parent and Sub is necessary
to authorize the execution, delivery or performance by Parent and Sub of this
Agreement. This Agreement has been duly executed and delivered by Parent and
Sub and is a valid and binding agreement of each of Parent and Sub, enforceable
against each of them in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally.
ARTICLE III
AGREEMENT TO TENDER SHARES/
IRREVOCABLE PROXY/SALE OF SHARES
Section 3.1 Agreement to Tender/Proxy. Subject to obtaining the Required
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Stockholder Approval at the Special Meeting referred to in Section 4.03, during
the time the agreement to tender and the grant of the irrevocable proxy
contained in this Article III is in effect, (x) Target Parent shall, and
Ultimate Parent shall cause Target Parent to, tender the Covered Shares in the
Offer and (y) Target Parent hereby makes, constitutes and appoints Parent, and
each of Parent's officers and employees, its true and lawful attorneys, for it
and in its name, place and stead, to act as its proxy in respect of all of the
Covered Shares, which it now or hereafter may own or hold, to vote for the
transaction of any and all business that may come before any meeting of the
stockholders of the Company called for the purpose of voting on the Merger and
the Merger Agreement and/or to vote against any Alternative Proposal (as defined
in the Merger Agreement), or at any adjournment thereof, or in any consent
solicitation related to the foregoing; giving and granting to its said attorneys
full power and authority to do and perform each and every act and thing whether
necessary or desirable to be done in and about the premises, as fully as it
might or could do if personally present with full power of substitution,
appointment and revocation, hereby ratifying and confirming all that its said
attorneys shall do or cause to be done by virtue hereof.
The irrevocable proxy contained in this Article III is coupled with an
interest, namely the right of Parent or Sub to acquire all of the Covered Shares
and is given to Parent and to its officers and employees in consideration of the
agreements of Parent and Sub under the Merger Agreement, and to induce Parent
and Sub to enter into the Merger Agreement, and this irrevocable proxy shall not
be revocable or revoked by Target Parent, and shall be binding upon it, its
successors and assigns until, in accordance with Section 6.5(a), this Article
III is terminated.
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Section 3.2 Sale of Covered Shares.
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(a) At Parent's election, subject to receipt of the Required Stockholder
Approval, Parent shall purchase from Target Parent and Target Parent shall
sell to Parent the Covered Shares (the "Share Purchase Right") at a price
per share equal to $2.50 (the "Purchase Price"). From and after receipt of
the Required Stockholder Approval, Parent may elect to purchase the Covered
Shares by delivery to Target Parent of a written notice specifying the
place, date and time for the closing of such purchase (the "Share Purchase
Closing" ).
(b) Parent's obligation to purchase the Covered Shares upon any exercise of the
Share Purchase Right shall be subject to (i) each of the representations
and warranties of Ultimate Parent and Target Parent contained in this
Agreement was when made on the date of this Agreement true and correct and
is true and correct as of the time of the Share Purchase Closing as though
made on and as of the time of the Share Purchase Closing, (ii) Ultimate
Parent and Target Parent shall have performed or complied with all
agreements and covenants required by this Agreement to be performed or
complied with by them on or prior to the Share Purchase Closing, and (iii)
the satisfaction of the conditions set forth in Annex A to the Merger
Agreement as if the Share Purchase Right was the Offer. Upon the request
of Parent, Target Parent and Ultimate Parent shall promptly take, or cause
to be taken, after the date hereof, all action required to effect all
necessary filings by Target Parent and Ultimate Parent under the HSR Act
and shall cooperate with the Parent with respect to its filing obligations.
(c) At any Share Purchase Closing, Target Parent will deliver to Parent a
certificate as to the satisfaction of conditions (i) and (ii) of the
penultimate sentence of Section 3.02(b), and Parent will deliver to Target
Parent a certificate of an officer of Parent certifying the truth and
correctness of Parent's representations and warranties contained in this
Agreement as if made on the date of the Share Purchase Closing.
(d) At any Share Purchase Closing, (i) Parent shall pay the aggregate Purchase
Price for the Covered Shares then being purchased from Target Parent by
certified or cashier's check or wire transfer, as determined solely by
Parent, and (ii) Target Parent shall deliver, or cause to be delivered, to
Parent one or more share certificates evidencing the Covered Shares then
being sold, and Target Parent agrees that such Covered Shares shall be
transferred free and clear of all Liens (as defined in the Merger
Agreement). All such share certificates shall be duly endorsed
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in blank, or with appropriate stock powers, duly executed in blank,
attached thereto, in proper form for transfer, with the signature of Target
Parent thereon guaranteed, and with all applicable taxes paid (including
any tax stamps attached).
(e) If Parent shall exercise the Share Purchase Right pursuant to this
Agreement, and without additional consideration, Target Parent shall
execute and deliver such further transfers, assignments, endorsements,
consents and other instruments as Parent may reasonably request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement, including the transfer of any and all of the Target Parent's
Covered Shares sold to Parent and the release of any and all Liens covering
such Covered Shares.
ARTICLE IV
COVENANTS OF ULTIMATE PARENT AND TARGET PARENT
Ultimate Parent and Target Parent hereby, jointly and severally,
covenant and agree that:
Section 4.1 No Proxies for or Disposition of Shares. Except pursuant to the
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terms of this Agreement or the Pledge, Target Parent shall not, and Ultimate
Parent shall cause Target Parent not to, without the prior written consent of
Parent and Sub, directly or indirectly, (i) grant any proxies or voting rights
or enter into any voting trust or other agreement or arrangement with respect to
the voting of any Covered Shares, (ii) acquire, sell, assign, transfer,
encumber, pledge or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the direct or indirect
acquisition or sale, assignment, transfer, encumbrance or other disposition of,
any Shares or interest therein during the term of this Agreement, or (iii) issue
any shares of its capital stock or any securities convertible into or
exchangeable for any shares of its capital stock or enter into any contract,
arrangement or understanding with respect thereto. Ultimate Parent shall not,
without prior written consent of Parent and Sub, directly or indirectly, (i)
grant any proxies or voting rights or enter into any voting trusts or other
agreement or arrangement with respect to the voting of any capital stock of
Target Parent, or (ii) sell, assign, transfer, encumber, pledge or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance or other disposition of, any shares of capital stock of Target
Parent or interest therein during the term of this Agreement. Neither Target
Parent nor Ultimate Parent shall seek or solicit any such acquisition or sale,
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assignment, transfer, encumbrance or other disposition or any such contract,
option or other arrangement or assignment or understanding and agrees to notify
Parent and Sub immediately and to provide all details requested by Parent and
Sub if either of them shall be approached or solicited, directly or indirectly,
by any person with respect to any of the foregoing.
Section 4.2 No Shopping. Neither Target Parent nor Ultimate Parent shall
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directly or indirectly (i) solicit, initiate or encourage (and Target Parent and
Ultimate Parent shall not permit or authorize any person, including advisors, to
solicit, initiate or encourage) any inquiry, proposal or offer from any person
or group to acquire the business, property or capital stock of the Company or
Target Parent or any direct or indirect subsidiary thereof, or any acquisition
of a significant equity interest in, or a significant portion of the assets of,
the Company or Target Parent or any direct or indirect subsidiary thereof,
whether by merger, purchase of assets, tender offer or other transaction or (ii)
participate in any discussion or negotiations regarding, or furnish to any other
person any information with respect to, or otherwise cooperate in any way with,
or participate in, facilitate or encourage any effort or attempt by any other
person to do or seek any of the foregoing; provided, however, that any director
of Target Parent or Ultimate Parent who is also a director of the Company may as
a director of the Company participate in discussions and negotiations concerning
an Alternative Proposal which has been submitted on an unsolicited basis and
which otherwise meets the requirements of the last sentence of the first
paragraph of Section 5.2(a) of the Merger Agreement. Target Parent and Ultimate
Parent shall promptly advise Parent and Sub of the terms of any communications
it may receive relating to any of the foregoing.
Section 4.3 Ultimate Parent's Stockholders' Meeting.
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(a) Ultimate Parent, acting through Ultimate Parent's Board shall, in
accordance with Applicable Law (as defined in the Merger Agreement):
(i) duly call, give notice of, convene and hold a special meeting of
its stockholders (the "Special Meeting") as soon as practicable
following the date hereof for the purpose of considering and
taking action upon the matters requiring the Required Stockholder
Approval;
(ii) cause a supplement to Ultimate Parent's definitive proxy
statement (the "Proxy Statement") relating to
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the Special Meeting, to be mailed to its stockholders, provided
that such supplement to the Proxy Statement, insofar as it
relates to the Required Stockholder Approval, will not be mailed
by Ultimate Parent without consultation with Parent and its
counsel;
(iii) include in the Proxy Statement the recommendation of Ultimate
Parent's Board that stockholders of Ultimate Parent vote in favor
of the approval and adoption of the matters requiring the
Required Stockholder Approval; and
(iv) use its best efforts to solicit from holders of shares of
Ultimate Parent's common stock, $.01 par value, proxies in favor
of the approval and adoption of the matters requiring the
Required Stockholder Approval and shall take all other action
necessary or, in the reasonable opinion of Parent, advisable to
secure any vote or consent of stockholders required by the DGCL
to effect the approval and adoption of the matters requiring the
Required Stockholder Approval.
(b) Parent agrees that it will provide Ultimate Parent with the information
concerning Parent and Sub required to be included in the Proxy Statement,
and hereby agrees to indemnify Ultimate Parent and hold it harmless from
and against any material inaccuracies in such information.
(c) Ultimate Parent represents that the Proxy Statement (or any amendment
thereof or supplement thereto) at the date mailed to Ultimate Parent's
stockholders and at the time of the Special Meeting, if any, will not
contain any untrue statement of material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading, except that no representation is made by Ultimate
Parent with respect to statements made therein based on information
supplied by Parent or Sub in writing for inclusion in the Proxy Statement.
Ultimate Parent agrees to indemnify Parent and Sub and hold them harmless
from and against any such misstatements or omissions. If at any time prior
to the approval and adoption the matters requiring the Required Stockholder
Approval, any event with respect to Ultimate Parent should occur which is
required to be described in a supplement to the Proxy Statement, such event
shall be so described, and such supplement shall be promptly filed with the
SEC and, as required by law, disseminated to the stockholders of Ultimate
Parent. With respect to the information relating
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to Ultimate Parent, the Proxy Statement will comply as to form and
substance in all material respects with the requirements of the Exchange
Act.
(d) Ultimate Parent shall not, until after the Special Meeting, bring before
the stockholders of Ultimate Parent, any proposal inconsistent with the
matters requiring the Required Stockholder Approval; provided, however,
that it is agreed that the proposals that are currently in the Proxy
Statement of Ultimate Parent dated August 13, 1999 are not inconsistent
with the matters requiring the Required Stockholder Approval.
Section 4.4 Consent of Ultimate Parent's Lenders. Ultimate Parent
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shall, as promptly as practicable after the date hereof, and in any event prior
to the purchase of any Shares pursuant to the Offer (as defined in the Merger
Agreement), obtain all consents and approvals from its lenders to the
transactions contemplated pursuant to this Agreement and the Merger Agreement
and deliver evidence of such consents and approvals to Parent and Sub.
Section 4.5 Guaranty. Ultimate Parent shall, as promptly as
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practicable after the date hereof, and in any event prior to the purchase of any
Shares pursuant to the Offer (as defined in the Merger Agreement), deliver to
the Company (i) a guaranty from Ultimate Parent in form and substance reasonably
satisfactory to Parent, pursuant to which Ultimate Parent shall guaranty to
Parent the earnings before interest, taxes, depreciation and amortization
(EBITDA), projected to be received by the Company under the Subscriber Services
Agreement, dated as of July 1, 1999, by and between Ultimate Parent and the
Company, relating to Ultimate Parent's PROH Division (the "PROH Contract"),
which such EBITDA amounts are set forth in Schedule 5.12 to the Merger Agreement
and (ii) an irrevocable letter of credit or surety bond from a reputable and
financially sound financial institution or insurance company, or such other
security, in each case in form and substance reasonably satisfactory to Parent
securing the guaranty described in clause (i) or with respect to the PROH
Contract, as the case may be, and the EBITDA set forth in Schedule 5.12 of the
Merger Agreement projected to be received by the Company under the Subscriber
Services Agreement dated as of July 1, 1999 by and between Ultimate Parent and
the Company relating to Ultimate Parent's Support Services Division.
Section 4.6 Surety Bond. Prior to the purchase of any Shares
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pursuant to the Offer, Ultimate Parent shall take all action necessary to cause
the Company to be removed as a co-indemnitor (or to have any obligation
thereunder
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with respect to the Company terminated) with respect to the obligations secured
by the $4,580,446 bond (Surety ID #21970-01) in favor of Liberty Mutual
Insurance Company (the "Liberty Bond").
ARTICLE V
MISCELLANEOUS
Section 5.1 Expenses. All costs and expenses incurred in connection
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with this Agreement shall be paid by the party incurring such cost or expense.
Section 5.2 Further Assurances. Target Parent and Ultimate Parent
------------------
each will execute and deliver or cause to be executed and delivered all further
documents and instruments and use its best efforts to secure such consents and
take all such further action as may be reasonably necessary under applicable
laws and regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which it is a party or by which it is governed or bound, to perform its
obligations under this Agreement, to obtain all necessary waivers, consents and
approvals and effect all necessary registrations and filings, responses to
requests for additional information related to such filings and submission of
information requested by governmental authorities and to rectify any event or
circumstances which could impede performance of its obligations under this
Agreement.
Section 5.3 Specific Performance. The parties hereto agree that
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Parent and Sub would be irreparably damaged if for any reason Target Parent
failed to tender the Covered Shares in the Offer or Target Parent or Ultimate
Parent failed to perform any of their respective other obligations under this
Agreement, and that Parent and Sub would not have an adequate remedy at law for
money damages in such event. Accordingly, Parent and Sub shall be entitled to
specific performance and injunctive and other equitable relief to enforce the
performance of this Agreement by Target Parent or Ultimate Parent. This
provision is without prejudice to any other rights that Parent and Sub may have
against Target Parent and Ultimate Parent for any failure to perform its
obligations under this Agreement.
Section 5.4 Notices. All notices, requests, instructions and other
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communications to any party hereunder shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid, or by
facsimile transmission (with a confirming copy sent by overnight courier), as
follows:
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if to Parent or Sub, to:
Plato Holdings, Inc.
c/o Patricof & Co. Ventures, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Case
with copies to:
Blank Rome Comisky & XxXxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
if to Target Parent and Ultimate Parent:
NovaCare, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
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Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
or to such other persons or addresses as may be designated in writing by the
party to receive such notice.
Section 5.5 Amendments; Termination. This Agreement may not be
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modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
shall terminate if the Required Stockholder Approval shall not have been
obtained at the Special Meeting referred to in Section 4.03. In the event of the
termination of this Agreement pursuant to this Section 5.05, the relevant
provisions of this Agreement shall forthwith become void and there shall be no
liability on the part of either Parent or the Stockholder under this Agreement;
provided the foregoing shall not limit the liability of any party for breach of
this Agreement prior to such termination.
Section 5.6 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 neither Target
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Parent nor Ultimate Parent may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the prior written consent of
the other parties hereto; provided, further, that Parent may assign its rights
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(but not its obligations) hereunder to any direct or indirect wholly owned
subsidiary of Parent or any entity owned by, or controlling, controlled by or
under common control with, the same stockholders of Parent.
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Section 5.7 Governing Law. This Agreement shall be construed in
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accordance with and governed by the law of the State of Delaware without regard
to its principles of conflict of laws.
Section 5.8 Counterparts; Effectiveness. This Agreement may be
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
PLATO HOLDINGS, INC.
By:/s/ Xxxxxxx X. Case
------------------------------
Name: Xxxxxxx X. Case
Title: President
NEW PLATO ACQUISITION, INC.
By:/s/ Xxxxxxx X. Case
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Name: Xxxxxxx X. Case
Title: President
NC RESOURCES, INC.
By:/s/ Xxxxxxx Xxx
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Name: Xxxxxxx Xxx
Title: President
NOVACARE, INC.
By:/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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