EXHIBIT 99.D
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "AGREEMENT"), dated
as of ____________ __, 2001, between Explorer Holdings, L.P., a Delaware limited
partnership ("STOCKHOLDER"), and Omega Healthcare Investors, Inc., a Maryland
corporation (the "COMPANY").
WHEREAS, the Company and Stockholder have entered into an Investment
Agreement, dated as of October 29, 2001 (the "INVESTMENT AGREEMENT"), pursuant
to which, among other things, Stockholder acquired shares of [Common Stock]
[Series D Preferred Stock, par value $1.00 per share, of the Company (the
"SERIES D PREFERRED"), which are convertible into shares of common stock, par
value $0.10 per share, of the Company (the "COMMON STOCK") under certain
circumstances];
WHEREAS, the Company and Stockholder are parties to that certain
Stockholders Agreement, dated as of July 14, 2000 (the "ORIGINAL AGREEMENT");
and
WHEREAS, the Company and the Stockholder wish to amend and restate the
Original Agreement in its entirety.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
I. DEFINITIONS
--------------
1.1 DEFINITIONS. Capitalized terms used herein and not defined
herein will have the meaning set forth in the Investment Agreement. In addition
to the terms defined elsewhere herein, the following terms have the following
meanings when used herein with initial capital letters:
(a) "AFFILIATE" of any Person means any other Person, that,
directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such Person; and, for the
purposes of this definition only, "CONTROL" (including the terms "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the possession, direct or
indirect, of the power to direct or cause the direction of the
management, policies or activities of a Person whether through the ownership of
securities, by contract or agency or otherwise.
(b) "ASSUMPTION AGREEMENT" means an agreement in writing in
substantially the form of EXHIBIT A hereto pursuant to which the party thereto
agrees to be bound by the terms and provisions of Sections 2.2, 2.5, 3.1 and 3.2
of this Agreement.
(c) A Person will be deemed the "BENEFICIAL OWNER" of, and will be
deemed to "BENEFICIALLY OWN", and will be deemed to have "BENEFICIAL OWNERSHIP"
of:
(i) any securities that such Person or any of such Person's
Affiliates is deemed to "BENEFICIALLY OWN" within the meaning of Rule 13d-3
under the Exchange Act, as in effect on the date of this Agreement; and
(ii) any securities (the "UNDERLYING SECURITIES") that such
Person or any of such Person's Affiliates has the right to acquire (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (written or oral), or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise (it being understood that such Person will also be deemed to be the
beneficial owner of the securities convertible into or exchangeable for the
underlying securities).
(d) "BOARD" means the Board of Directors of the Company.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(f) "PERSON" means an individual, a corporation, a partnership, a
limited partnership, a limited liability company, an association, a trust or
other entity or organization, including without limitation a government or
political subdivision or an agency or instrumentality thereof.
(g) "PUBLIC OFFERING" means the sale of shares of any class of
Securities to the public pursuant to an effective registration statement (other
than a registration statement on
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Form S-4 or S-8 or any similar or successor form) filed under the Securities
Act.
(h) "REGISTRATION RIGHTS AGREEMENT" means the Amended and Restated
Registration Rights Agreement, dated as of the date hereof, between Stockholder
and the Company and any other registration rights agreement entered into in
accordance with Article III hereof.
(i) "SECURITIES" means the Common Stock, the Series C Preferred,
the Series D Preferred, all other securities of the Company entitled to vote
generally in the election of the directors of the Company, and all other
securities convertible into, exchangeable for or exercisable for any such
securities (whether immediately or otherwise).
(j) "SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(k) "TRANSFER" means a transfer, sale, assignment, pledge,
hypothecation or disposition.
(l) "VOTING SECURITIES" means all Securities, other than the
Series D Preferred.
II. GOVERNANCE; RESTRICTIONS ON
--------------------------------
ACQUISITION OF VOTING SECURITIES
--------------------------------
2.1 NOMINATION AND VOTING FOR STOCKHOLDER DESIGNEES AND
INDEPENDENT DIRECTOR. (a) From and after the Stockholder Approval Date,
Stockholder will be entitled at Stockholder's election to designate from time to
time up to such number of directors to the Board (the "STOCKHOLDER DESIGNEES")
based on the percentage of the Company's total issued and outstanding Voting
Securities beneficially owned by Stockholder, as set forth in the table below:
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PERCENTAGE OF VOTING
SECURITIES BENEFICIALLY
OWNED BY STOCKHOLDER NUMBER OF STOCKHOLDER DESIGNEES
------------------------ -------------------------------
Less than 5.00% 0
5.00% - 14.99% 1
15.0% - 24.99% 2
25.0% - 34.99% 3
35.0% - 44.99% 4
45.0% - 49.99% 5
Greater than 50.0% 6
(b) Between the date hereof and the Stockholder Approval Date,
Stockholder will be entitled at Stockholder's election to designate from time to
time up to such number of directors to the Board based on the percentage of the
Company's total issued and outstanding Voting Securities beneficially owned by
Stockholder, as set forth in the table below:
PERCENTAGE OF VOTING
SECURITIES BENEFICIALLY
OWNED BY STOCKHOLDER NUMBER OF STOCKHOLDER DESIGNEES
------------------------- -------------------------------
Less than 5.00% 0
5.00% - 16.67% 1
16.67% - 27.78% 2
27.78% - 38.89% 3
38.89% - 50.00% 4
Greater than 50.0% 5
(c) The Company, at each meeting of stockholders of the Company at
which directors are elected or pursuant to which such action is to be taken by
written consent, will nominate for election as directors of the Company such
number of Stockholder Designees such that following such election the
Stockholder Designees who are members of the Board represent the aggregate
number of Stockholder Designees that Stockholder is permitted to designate
pursuant to this Section 2.1. Ninety calendar days prior to any such meeting or
action by written consent, Stockholder will provide the Company with the
information required pursuant to Regulation 14A under the Exchange Act with
respect to each such Stockholder Designee. The Company will solicit proxies from
its stockholders for such nominees, vote all proxies in favor of such nominees,
except for such proxies that specifically indicate to the contrary, and
otherwise use
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its best efforts to cause such nominees to be elected to the Board as herein
contemplated.
(d) The Stockholder Designees will be apportioned among the three
classes of directors as equal as possible; PROVIDED, HOWEVER, that in the event
that the number of Stockholder Designees determined pursuant to Section 2.1 is
not evenly divisible by three, such additional Stockholder Designee or Designees
shall be nominated to the class or classes of directors with the longest term of
office. Each Stockholder Designee will serve until his successor is elected and
qualified or until his earlier resignation, retirement, disqualification,
removal from office, or death.
(e) Notwithstanding anything in the bylaws of the Company to the
contrary, if any Stockholder Designee ceases to be a director of the Company for
any reason, the Company will promptly upon the request of Stockholder cause a
person designated by Stockholder to replace such director if Stockholder is so
entitled.
(f) Stockholder agrees to cause a Stockholder Designee to promptly
resign in the event Stockholder's beneficial ownership of Voting Securities
declines such that Stockholder would no longer have the right to designate such
person.
(g) From and after the date the stockholders of the Company vote
to approve the amendment of the Company's Articles of Restatement and bylaws to
permit an increase in the size of the Board to eleven (the "STOCKHOLDER APPROVAL
DATE"), the Company will take all actions as may be necessary to appoint ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to the Board. The Company covenants that the total number of
seats on the Board (including any vacant seats) will in no event exceed ten
unless otherwise agreed to in writing by Stockholder or as provided pursuant to
the terms of the Series A, B, C or D Preferred Stock in effect on the date
hereof, or in the case of the Series C Preferred Stock, pursuant to the Amended
Series C Articles Supplementary contemplated by the Investment Agreement.
(h) Except as may otherwise be required under the rules of The New
York Stock Exchange or the SEC or as may be agreed to by a majority of the
Stockholder Designees, at all times after the date hereof, the Company will take
such action to ensure that the Stockholder Designees are represented on each
committee of the Board in at least the same proportion as their representation
on the entire Board and that each committee will
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consist of at least three members, other than any committee comprised solely of
Non-Stockholder Designees established for the purpose of considering
transactions in which the Stockholder or its Affiliates or Associates have an
interest different from other stockholders of the Company.
(i) Notwithstanding anything to the contrary in this Agreement or
the Articles Supplementary for the Series C Preferred Stock of the Company,
prior to the receipt by the Company of Stockholder Approval for the Amended
Series C Articles Supplementary, in the event the holders of the Series A
Preferred Stock or Series B Preferred Stock shall be entitled to elect
Additional Preferred Stock Directors (as defined in the Articles Supplementary
for each of the Series A Preferred Stock and the Series B Preferred Stock), then
the number of Stockholder Designees Stockholder shall be entitled to designate
shall be increased by two.
2.2 VOTING FOR OTHER DIRECTORS. (a) (a) For as long as Stockholder
beneficially owns at least 15.0% of the issued and outstanding Voting
Securities, Stockholder will vote all Voting Securities that it beneficially
owns to elect as directors (i) three Independent Directors and (ii) from and
after the date the Board is increased to ten members, one additional Person who
is not an Affiliate or Associate of Stockholder or its Affiliates or Associates
(other than the Company) (such designees, "NON-STOCKHOLDER DESIGNEES").
(b) The Company shall use its best efforts to cause the
Non-Stockholder Designees selected in accordance with this Section 2.2 to serve
on the Board. The Company, at each meeting of stockholders of the Company at
which directors are elected or pursuant to which such action is to be taken by
written consent, will nominate for election as directors of the Company such
number of Non-Stockholder Designees such that following such election the
Non-Stockholder Designees who are members of the Board represent the aggregate
number of Non-Stockholder Designees that are to be elected in accordance with
this Section 2.2. The Company will solicit proxies from its stockholders for
such nominees, vote all proxies in favor of such nominees, except for such
proxies that specifically indicate to the contrary, and otherwise use its best
efforts to cause such nominees to be elected to the Board as herein
contemplated. Notwithstanding anything in the bylaws of the Company to the
contrary, in the event any Non-Stockholder Designee shall be unable to serve as
a director, a replacement for such director shall be designated in the same
manner as set forth in this Section 2.2.
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(c) "INDEPENDENT DIRECTOR" shall mean a Person who (i) satisfies
the qualification requirements as an "independent" director and as
a member of the audit committee of the Company under the rules and
regulations of The New York Stock Exchange and (ii) is not an Affiliate of
Stockholder.
2.3 OTHER VOTING RIGHTS. Stockholder and the Company agree that
under applicable law, including without limitation Section 2-419 of the MGCL,
and pursuant to the Company's constituent documents, neither the Stockholder nor
the Stockholder Designees would be precluded, and the Company agrees that it
will not assert that the Stockholder or any of the Stockholder Designees is
precluded, from voting with respect to any transaction involving Stockholder
following appropriate disclosure to the then directors of any circumstances that
could provide the basis for an assertion of a conflict of interest.
2.4 ACCESS. The Company will, and will cause its subsidiaries and
each of the Company's and its subsidiaries' officers, directors, employees,
agents, representatives, accountants and counsel to: (a) afford the officers,
employees and authorized agents, accountants, counsel, financing sources and
representatives of Stockholder reasonable access, during normal business hours,
to the offices, properties, other facilities, books and records of the Company
and each subsidiary and to those officers, directors, employees, agents,
accountants and counsel of the Company and of each subsidiary who have any
knowledge relating to the Company or any subsidiary and (b) furnish to the
officers, employees and authorized agents, accountants, counsel, financing
sources and representatives of Stockholder, such additional financial and
operating data and other information regarding the assets, properties and
goodwill of the Company and its subsidiaries (or legible copies thereof) as
Stockholder may from time to time reasonably request (other than information and
material from the Company's counsel which is subject to the attorney/client
privilege, which information and material shall be made available to the
Stockholder Designees in their capacity as members of the Board).
2.5 RESTRICTION ON ACQUISITION OF VOTING SECURITIES. Except in
connection with the acquisition of Voting Securities in a transaction approved
by a committee of the Board, all of the members of which committee shall consist
of Non-Stockholder Designees, Stockholder will not purchase or otherwise acquire
beneficial ownership of more than 80% of the Voting Securities then issued and
outstanding. Notwithstanding the foregoing, Stockholder shall not be in breach
of this Section 2.5 as the result of (i) an acquisition of Voting Securities by
the Company which, by reducing the number of Voting Securities outstanding,
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increases the proportionate number of Voting Securities beneficially owned by
Stockholder in excess of 80% of the Voting Securities then issued and
outstanding, (ii) the acquisition by Stockholder of newly issued Voting
Securities directly from the Company, or (iii) any increase in the number of
Voting Securities beneficially owned by Stockholder as a result of the
anti-dilution provisions of any Voting Securities. This Section 2.5 will
immediately terminate if a third party publicly announces an intent to effect a
transaction, "commence a tender offer" (within the meaning of Rule 14d-2 under
the Exchange Act), or enter into an agreement contemplating the acquisition of,
20% or more of the Voting Securities then issued and outstanding.
III. TRANSFER OF SECURITIES
---------------------------
3.1 TRANSFER OF VOTING SECURITIES BY STOCKHOLDER. (a) Stockholder
agrees that Stockholder will not Transfer Voting Securities beneficially
owned by it, the effect of which would cause the transferee to acquire
beneficial ownership of 10% or more of the Voting Securities then-outstanding
(other than to any Affiliate of Stockholder), unless, prior to such Transfer
(i) notice of such Transfer is given to the Company and (ii) the Person to
whom such Voting Securities are to be Transferred enters into an Assumption
Agreement.
(b) In the event of any purported Transfer by Stockholder of any
Voting Securities not made in compliance with this Section 3.1, such purported
Transfer will be void and of no effect and the Company will not give effect to
such Transfer. The Company shall be entitled to treat the prior owner as the
holder of any such Securities not Transferred in accordance with this Agreement.
3.2 LEGEND. Each certificate representing Securities issued to
Stockholder will bear a legend on the face thereof substantially to the
following effect (with such additions thereto or changes therein as the Company
may be advised by counsel are required by law (the "LEGEND")):
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED
UNDER THAT ACT OR ANY OTHER APPLICABLE LAW OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
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"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO AN AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, DATED
___________ __, 2001, BETWEEN THE COMPANY AND EXPLORER HOLDINGS, L.P.,
A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SUCH AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT."
The Legend will be removed by the Company by the delivery of a legal opinion
from counsel to the Stockholder to the effect that such legend is no longer
required for purposes of applicable securities laws. In connection with the
foregoing, the Company agrees that, if the Company is required to file reports
under the Exchange Act, for so long as and to the extent necessary to permit the
Stockholder to sell any Securities pursuant to Rule 144, the Company will use
its reasonable efforts to file, on a timely basis, all reports required to be
filed with the SEC by it pursuant to Section 13 of the Exchange Act, furnish to
the Stockholder upon request a written statement as to whether the Company has
complied with such reporting requirements during the 12 months preceding any
proposed sale under Rule 144 and otherwise use its reasonable efforts to permit
such sales pursuant to Rule 144.
3.3 TRANSFERS OF VOTING SECURITIES BY STOCKHOLDER. The Company and
its transfer agent may not refuse to Transfer any Voting Securities, passing
either by voluntary Transfer or by operation of law, by Stockholder if such
Transfer (i) complies with Section 3.1 hereof and (ii) would not, in the written
opinion of counsel to Stockholder reasonably acceptable to the Company,
disqualify the Company as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended.
3.4 REGISTRATION RIGHTS. Upon consummation of any Transfer of
Securities constituting 5% or more of the Securities (other than a Transfer in a
Public Offering or pursuant to Rule 144 under the Securities Act), the Company
will enter into a registration rights agreement in favor of such transferee
substantially in the form of the Registration Rights Agreement, with such
modifications thereto as are acceptable to such transferee that do not
materially increase the Company's obligations thereunder (excluding the effects
of multiple parties); provided, however, that in no event will the Company be
required to grant more than one demand registration right for
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every 5% of Securities then outstanding involved in such Transfer of Securities.
IV. MISCELLANEOUS
------------------
4.1 TERMINATION. (a) The provisions of this Agreement will
terminate, and be of no further force or effect (other than with respect to
prior breaches), on the fifth anniversary of the date of this Agreement.
(b) Any portion or all of this Agreement will terminate and be of
no further force and effect upon a written agreement of the parties to that
effect.
4.2 SPECIFIC PERFORMANCE. The parties agree that any breach by
either of them of any provision of this Agreement would irreparably injure the
Company or the Investor, as the case may be, and that money damages would be an
inadequate remedy therefor. Accordingly, the parties agree that the other party
will be entitled to one or more injunctions enjoining any such breach and
requiring specific performance of this Agreement and consent to the entry
thereof, in addition to any other remedy to which such other party is entitled
at law or in equity.
4.3 NOTICES. All notices, requests and other communications to
either party hereunder will be in writing (including telecopy or similar
writing) and will be given:
IF TO THE COMPANY, TO:
---------------------
Omega Healthcare Investors, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10
WITH A COPY TO:
--------------
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ or
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO STOCKHOLDER, TO:
---------------------
Explorer Holdings, L.P.
c/o The Hampstead Group, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
--------------
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Bark
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or telecopier number as such party may hereafter specify
by notice to the other party hereto. Each such notice, request or other
communication shall be effective only when actually delivered at the address
specified in this Section 4.3, if delivered prior to 5:00 (local time) and such
day is a Business Day, and if not, then such notice, request or other
communication shall not be effective until the next succeeding Business Day.
4.4 AMENDMENTS: NO WAIVERS. (a) Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by the Company and Stockholder, or in
the case of a waiver, by the 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 will 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
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herein provided will be cumulative and not exclusive of any rights or remedies
provided by law.
4.5 SUCCESSORS AND ASSIGNS. The provisions of this Agreement will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, PROVIDED, HOWEVER, that none of the parties
may assign, delegate or otherwise transfer any of their rights or obligations
under this Agreement without the written consent of the other party hereto.
Neither this Agreement nor any provision hereof is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
4.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which will be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement will become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
4.7 ENTIRE AGREEMENT. This Agreement, the Investment Agreement,
the Registration Rights Agreement and the documents contemplated thereby (and
all schedules and exhibits thereto) constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements, understandings and negotiations, both written and oral, between the
parties with respect thereto.
4.8 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware, without giving effect to
the principles of conflict of laws thereof.
4.9 CALCULATION OF BENEFICIAL OWNERSHIP. Any provision in this
Agreement that refers to a percentage of Voting Securities shall be calculated
based on the aggregate number of issued and outstanding shares of Common Stock
at the time of such calculation (including any shares of Common Stock that would
then be issuable upon the conversion of the Series C Preferred, Series D
Preferred or any outstanding convertible security), but shall not include any
shares of Common Stock issuable upon any options, warrants or other securities
that are exercisable for Common Stock.
4.10 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and
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enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
4.11 JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each party
hereby irrevocably and unconditionally submits, for itself and its property, to
the exclusive jurisdiction of any state or federal court located in the State of
Delaware (as applicable, a "DELAWARE COURT"), and any appellate court from any
such court, in any suit, action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment resulting from any
such suit, action or proceeding, and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in the Delaware Court.
(b) It will be a condition precedent to each party's right to
bring any such suit, action or proceeding that such suit, action or proceeding,
in the first instance, be brought in the Delaware Court (unless such suit,
action or proceeding is brought solely to obtain discovery or to enforce a
judgment), and if each such court refuses to accept jurisdiction with respect
thereto, such suit, action or proceeding may be brought in any other court with
jurisdiction.
(c) No party may move to (i) transfer any such suit, action or
proceeding from the Delaware Court to another jurisdiction, (ii) consolidate any
such suit, action or proceeding brought in the Delaware Court with a suit,
action or proceeding in another jurisdiction, or (iii) dismiss any such suit,
action or proceeding brought in the Delaware Court for the purpose of bringing
the same in another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, (i) any objection
which it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement in the Delaware
Court, (ii) the defense of an inconvenient forum to the maintenance of such
suit, action or proceeding in any such court, and (iii) the right to object,
with respect to such suit, action or proceeding, that such court does not
have jurisdiction over such party. Each party irrevocably consents to service
of process in any manner permitted by law. Notwithstanding the foregoing,
this Section 4.11 will not apply to (x) any suit, action or
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proceeding by a party seeking indemnification or contribution pursuant to
this Agreement or otherwise in respect of a suit, action or proceeding
against such party by a third party if such suit, action or proceeding by
such party seeking indemnification or contribution is brought in the same
court as the suit, action or proceeding against such party or (y) any suit,
action or proceeding to enforce a judgment of a Delaware Court.
4.12 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF
OR IN ANY WAY RELATED TO THIS AGREEMENT.
4.13 NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
EXPLORER HOLDINGS, L.P.
By: EXPLORER HOLDINGS GENPAR,
L.L.C., its General Partner
By:
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Vice President
OMEGA HEALTHCARE INVESTORS, INC.
By:
----------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Executive Officer
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EXHIBIT A
---------
FORM OF ASSUMPTION AGREEMENT
----------------------------
The undersigned hereby agrees, effective as of the date hereof, to
become a party to, and be bound by the provisions of, Sections 2.2, 2.5, 3.1 and
3.2 of that certain Amended and Restated Stockholders Agreement (the
"Agreement") dated as of ________ ___, 2001 by and between Omega Healthcare
Investors, Inc. and Explorer Holdings, L.P. and for all purposes of such
sections of the Agreement, the undersigned shall be included within the term
"Stockholder" (as defined in the Agreement). The address and facsimile number to
which notices may be sent to the undersigned is as follows:
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Facsimile No.---------------
[Name]
By: _____________________________
Name:
Title: