Exhibit (d)(3)
[Execution Copy]
================================================================================
STOCK PURCHASE AGREEMENT
Dated as of August 1, 2002
By and Among
FOUR SEASONS HEALTH CARE LIMITED
DELTA I ACQUISITION, INC.
and
OMEGA HEALTHCARE INVESTORS, INC.
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS AND OBLIGATIOSN TO BE PERFORMED BY SHAREHOLDER SUBSIDIARY......................1
Section 1.1 Definitions............................................................................1
Section 1.2 Obligations to be Performed by Shareholder Subsidiary..................................1
ARTICLE II SALE OF SHARES.............................................................................2
Section 2.1 Sale of Shares.........................................................................2
Section 2.2 Purchase Price.........................................................................2
Section 2.3 Closing................................................................................2
ARTICLE III VOTING AND PROXY...........................................................................2
Section 3.1 Agreement to Vote Preferred Shares.....................................................2
Section 3.2 Grant of Proxy.........................................................................3
Section 3.3 Nature of Proxy........................................................................3
ARTICLE IV COVENANTS..................................................................................4
Section 4.1 Generally..............................................................................4
Section 4.2 No Solicitation of Other Offers........................................................4
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER..............................................5
Section 5.1 Due Organization, etc..................................................................5
Section 5.2 Ownership of Shares....................................................................5
Section 5.3 No Conflicts...........................................................................5
Section 5.4 No Finder's Fees.......................................................................6
Section 5.5 No Encumbrances........................................................................6
Section 5.6 Reliance by Parent.....................................................................6
Section 5.7 Ancillary Confirmations................................................................6
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB...........................................7
Section 6.1 Due Organization, etc..................................................................7
Section 6.2 No Conflicts...........................................................................7
Section 6.3 No Finder's Fees.......................................................................7
Section 6.4 Investment Intent......................................................................7
ARTICLE VII MISCELLANEOUS..............................................................................8
Section 7.1 Shareholder Capacity...................................................................8
Section 7.2 Publication............................................................................8
Section 7.3 Entire Agreement.......................................................................8
PAGE
----
Section 7.4 Binding Effect; Benefit; Assignment....................................................8
Section 7.5 Amendments, Waivers, etc...............................................................8
Section 7.6 Notices................................................................................8
Section 7.7 Specific Enforcement..................................................................10
Section 7.8 Remedies Cumulative...................................................................10
Section 7.9 No Waiver.............................................................................10
Section 7.10 Applicable Law........................................................................10
Section 7.11 Headings..............................................................................11
Section 7.12 Counterparts..........................................................................11
Section 7.13 Termination...........................................................................11
Section 7.14 Affiliates............................................................................11
Section 7.15 Severability..........................................................................11
Section 7.16 Interpretation........................................................................11
Section 7.17 Acknowledgement.......................................................................12
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "AGREEMENT") dated as of August
1, 2002, by and among FOUR SEASONS HEALTH CARE LIMITED, a private limited
company organized under the laws of England and Wales ("PARENT"), DELTA I
ACQUISITION, INC., a corporation organized under the laws of
Delaware and an
indirect wholly owned subsidiary of Parent ("SUB"), and Omega Healthcare
Investors, Inc. (the "SHAREHOLDER"), a corporation organized under the laws of
Maryland, being the sole shareholder of Preferred Shares of OMEGA WORLDWIDE,
INC., a corporation organized under the laws of Maryland (the "COMPANY").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Parent, Sub and the Company propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (as the same may be
amended or supplemented, the "MERGER AGREEMENT"), pursuant to which Sub is to
make a tender offer to purchase, subject to the terms and conditions of the
Merger Agreement, any and all of the Shares of the Company and thereafter be
merged with the Company (the "MERGER");
WHEREAS, Omega TRS I, Inc. ("Shareholder Subsidiary"), a
wholly-owned subsidiary of Shareholder owns 260,000 shares of Series C Preferred
Shares (the "PREFERRED SHARES"), par value U.S. $1.00 per share, of the Company,
such Preferred Shares being all of outstanding shares of Series C Preferred
Shares of the Company;
WHEREAS, Shareholder desires to cause the Shareholder
Subsidiary to sell, and Sub desires to purchase, the Preferred Shares, pursuant
to this Agreement; and
WHEREAS, as a condition to the willingness of Parent and Sub
to enter into the Merger Agreement, and as an inducement and in consideration
therefor, Parent has required that Shareholder agree, and Shareholder has
agreed, to enter this Agreement;
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
DEFINITIONS AND OBLIGATIONS TO BE PERFORMED BY SHAREHOLDER SUBSIDIARY
Section 1.1 DEFINITIONS. For purposes of this Agreement,
capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Merger Agreement.
Section 1.2 OBLIGATIONS TO BE PERFORMED BY SHAREHOLDER
SUBSIDIARY. For convenience, this Agreement has been executed by Shareholder and
has not been executed by Shareholder Subsidiary. Notwithstanding anything to the
contrary contained herein, whenever
any provision of this Agreement imposes any duty or obligation upon Shareholder
that can only be performed by the record holder of the Preferred Shares, then
such provision shall be interpreted to mean that Shareholder will cause
Shareholder Subsidiary to perform such duty or obligation (and upon request,
Shareholder will cause Shareholder Subsidiary to assume in writing Shareholder's
obligation to perform all such duties and obligations).
ARTICLE II
SALE OF SHARES
Section 2.1 SALE OF SHARES. On the terms, and subject to the
conditions, set forth in this Agreement, Shareholder agrees to sell, assign,
transfer and deliver to Sub on the Closing Date, and Sub agrees to purchase from
Shareholder on the Closing Date, the Preferred Shares (the "PURCHASE"). The
certificates representing the Preferred Shares shall be duly endorsed in blank,
or accompanied by either stock powers duly executed in blank by Shareholder or
such other instruments of transfer as are reasonably acceptable to Sub in each
case, with all necessary transfer tax and other revenue stamps, acquired at
Shareholder's expense, affixed and canceled. Shareholder agrees to cure any
deficiencies with respect to the endorsement of the certificates representing
the Preferred Shares or with respect to the stock power accompanying any such
certificates.
Section 2.2 PURCHASE PRICE. In full consideration for the
purchase by Sub of the Preferred Shares, Sub shall pay to Shareholder, on the
Closing Date, an aggregate of $2,600,000 plus any and all accrued and unpaid
dividends with respect thereto (which accrued and unpaid dividends, as of July
26, 2002, are in an amount equal to $899,022) (the "PURCHASE PRICE"), by wire
transfer of immediately available funds on the Closing Date to the account or
accounts identified by Shareholder at least two (2) Business Days prior to the
Closing Date.
Section 2.3 CLOSING. The sale referred to in Section 2.1 (the
"CLOSING") shall take place at 10:00 A.M. New York time at the offices of White
& Case LLP, 1155 Avenue of the Americas, New York, New York on the earlier to
occur of (i) the Offer Completion Date (as such term is defined in the Merger
Agreement) and (ii) the Option Closing (as such term is defined in the Tender
and Option Agreement. Such date is herein referred to as the "CLOSING DATE".
ARTICLE III
VOTING AND PROXY
Section 3.1 AGREEMENT TO VOTE PREFERRED SHARES. Shareholder,
in its capacity as such, hereby agrees that during the period commencing on the
date hereof and continuing until the termination of this Agreement (such period,
the "VOTING PERIOD"), at any meeting (or any adjournment or postponement
thereof) of the holders of any Preferred Shares of the Company, however called,
or in connection with any written consent of the holders of any Preferred Shares
of the Company, Shareholder shall vote (or cause to be voted) the Preferred
Shares (x) in favor of the Merger and the approval of the terms of the Merger
Agreement and each of the other transactions contemplated by the Merger
Agreement and this Agreement and any actions
-2-
required in furtherance thereof, (y) against any action, transaction or
agreement that Shareholder knows would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company or any of its Subsidiaries under the Merger Agreement or of Shareholder
under this Agreement and (z) except as otherwise agreed to in writing in advance
by Parent, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its Subsidiaries and any Acquisition
Proposal; (ii) a sale, lease or transfer of a significant part of the assets of
the Company or any of its Subsidiaries (other than the sale of all or
substantially all of the assets or equity interests in both (x) Principal
Healthcare Finance Unit Trust No. 1 and Principal Healthcare Finance Unit Trust
No. 2 and (y) Omega (Australia) Pty Limited owned by the Company pursuant to the
terms of the Merger Agreement), or a reorganization, recapitalization,
dissolution or liquidation of the Company or any of its Subsidiaries (each of
the actions in (i) or (ii), a "BUSINESS COMBINATION"); and (iii) (A) any change
in the Persons who constitute the board of directors of the Company; (B) any
change in the present capitalization of the Company or any amendment of the
Company's Articles of Amendment and Restatement or By-laws; (C) any other
material change in the Company's corporate structure or business; or (D) any
other action involving the Company or any of its Subsidiaries that is intended,
or could reasonably be expected, to impede, interfere with, delay, postpone, or
adversely affect the Merger and the transactions contemplated by this Agreement
or the Merger Agreement. Shareholder hereby agrees that Shareholder shall not,
and shall cause its Affiliates not to, enter into any agreement, letter of
intent, agreement in principle or understanding with any Person that violates or
conflicts with, or could reasonably be expected to violate or conflict with, the
provisions and agreements contained in this Agreement or the Merger Agreement.
Section 3.2 GRANT OF PROXY. Shareholder hereby appoints
Parent, Sub and any designee of Parent or Sub, and each of them individually,
Shareholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the Voting Period with
respect to Shareholder's Preferred Shares in accordance with Section 3.1. This
proxy is given to secure the performance of the duties of Shareholder under this
Agreement. Shareholder affirms that this proxy is coupled with an interest and
shall be irrevocable. Shareholder shall take such further action or execute such
other instruments as may be necessary to effectuate the intent of this proxy.
Section 3.3 NATURE OF PROXY. The proxy and power of attorney
granted pursuant to Section 3.2 by Shareholder shall be irrevocable during the
term of this Agreement, shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy and shall revoke all prior
proxies granted by Shareholder. Shareholder agrees that it will not grant any
proxy to any Person that conflicts with the proxy granted by Shareholder
pursuant to Section 3.2, and any attempt to do so shall be void and of no force
and effect. The power of attorney granted herein is a durable power of attorney
and shall survive the dissolution, bankruptcy, death or incapacity of
Shareholder.
-3-
ARTICLE IV
COVENANTS
Section 4.1 GENERALLY. Shareholder agrees that, except, for
selling the Preferred Shares in accordance with Section 3.1 and for granting the
proxy and power of attorney pursuant to Section 3.2, Shareholder shall not and
shall cause its Affiliates, to the extent such Affiliates are operating on
Shareholder's behalf, not to (i) sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
agreement with respect to, or consent to, the sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of Shareholder's
Preferred Shares, (ii) grant any proxies or powers of attorney in respect of the
Preferred Shares, deposit any of Shareholder's Preferred Shares into a voting
trust or enter into a voting agreement with respect to any of Shareholder's
Preferred Shares and (iii) any action that would have the effect of preventing
or disabling (A) Shareholder from performing its obligations under this
Agreement or (B) Parent, Sub, or their designees from exercising their rights
under Section 3.2.
Section 4.2 NO SOLICITATION OF OTHER OFFERS. Shareholder
shall, and shall cause its Affiliates and each of its and their respective
officers, directors, employees, representatives, consultants, investment
bankers, attorneys, accountants and other agents, to the extent such agents are
operating on such Shareholder's behalf, immediately to, cease any discussions or
negotiations with any other Person or Persons that may be ongoing with respect
to any Acquisition Proposal. Shareholder shall not take, and shall not cause its
Affiliates and its and their respective officers, directors, employees,
representatives, consultants, investment bankers, attorneys, accountants or
other agents, to the extent such agents are operating on such Shareholder's
behalf, to take, any action (i) to encourage, solicit, initiate or facilitate,
directly or indirectly, the making or submission of any Acquisition Proposal
(including, without limitation, by taking any action that would make the Rights
Agreement inapplicable to an Acquisition Proposal), (ii) to enter into any
agreement, arrangement or understanding with respect to any Acquisition
Proposal, or to agree to approve or endorse any Acquisition Proposal or enter
into any agreement, arrangement or understanding that would require the Company
to abandon, terminate or fail to consummate the Merger or any other transaction
contemplated by this Agreement, (iii) to initiate or participate in any way in
any discussions or negotiations with, or furnish or disclose any information to,
any Person (other than Parent or Sub) in connection with any Acquisition
Proposal, (iv) to facilitate or further in any other manner any inquiries or the
making or submission of any proposal that constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal or (v) to grant any waiver or
release under any standstill, confidentiality or similar agreement entered into
by the Company or any of its Affiliates or representatives. Without limiting the
foregoing, Parent, Sub and Shareholder agree that any violation of the
restrictions set forth in this Section 4.2 by any Person who is an officer,
director, employee or wholly-owned subsidiary of Stockholder or any,
representative, consultant, investment banker, attorney, accountant or other
agent of Shareholder or any of its wholly-owned subsidiaries (to the extent such
Person is acting of the Shareholder's behalf and, has been informed by the
Company, or otherwise made aware or had knowledge, of its obligations hereunder)
shall constitute a breach by Shareholder of this Section 4.2; PROVIDED, however
that if Shareholder is aware that any such Person is in violation of the
restrictions contained in this Section 4.2, Shareholder shall be in breach of
this Section 4.2 if such Person does not refrain
-4-
from such action. Shareholder shall enforce, to the fullest extent permitted
under applicable law, the provisions of any standstill, confidentiality or
similar agreement entered into by Shareholder or any of its Affiliates or
representatives including, but not limited to, where necessary seeking to obtain
injunctions to prevent any breaches of such agreements and to enforce
specifically the terms and provisions thereof in any court having jurisdiction.
Shareholder will notify Sub as soon as practicable if any Person makes a
proposal, offer, inquiry to or contact with, Shareholder, with respect to the
foregoing and shall describe in reasonable detail the identity of any such
Person, and the substance and material terms of such contract and material terms
of any such proposal.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to Parent and Sub
as follows:
Section 5.1 DUE ORGANIZATION, ETC. Shareholder and Shareholder
Subsidiary are duly organized and validly existing under the laws of the
jurisdiction of their incorporation. Shareholder has the requisite power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by Shareholder have been duly authorized by all necessary
action on the part of Shareholder. This Agreement has been duly executed and
delivered by Shareholder and, assuming that this Agreement constitutes a valid
and binding obligation of Parent and Sub, constitutes a valid and binding
obligation of Shareholder enforceable against Shareholder in accordance with its
terms, except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
Section 5.2 OWNERSHIP OF SHARES. Shareholder Subsidiary owns,
of record and beneficially, the Preferred Shares and such Preferred Shares
represents all the Preferred Shares owned by Shareholder and Shareholder
Subsidiary. Shareholder Subsidiary has sole voting power and sole power of
disposition, with respect to the Preferred Shares.
Section 5.3 NO CONFLICTS. (i) Except for compliance with
Antitrust Laws and applicable securities laws, including the Exchange Act, no
filing with any Governmental Entity, no Permit and no authorization, consent or
approval of any Governmental Entity or other Person is necessary for the
execution of this Agreement by Shareholder and the consummation by Shareholder
and Shareholder Subsidiary of the transactions contemplated hereby and (ii) none
of the execution and delivery of this Agreement by Shareholder, the consummation
by Shareholder and Shareholder Subsidiary of the transactions contemplated
hereby or compliance by Shareholder and Shareholder Subsidiary with any of the
provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to Shareholder or Shareholder Subsidiary,
(B) result in, or give rise to, a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Shareholder or Shareholder
-5-
Subsidiary is a party or by which Shareholder, Shareholder Subsidiary or any of
the Preferred Shares may be bound or (C) assuming compliance with Antitrust
Laws, violate any order, writ, injunction, decree, judgment, order, statute,
rule or regulation applicable to Shareholder, Shareholder Subsidiary, the
Preferred Shares or any of Shareholder's or Shareholder Subsidiary's other
properties or assets.
Section 5.4 NO FINDER'S FEES. Except as disclosed pursuant to
the Merger Agreement, no broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or, to the knowledge of Shareholder, on
behalf of Shareholder or Shareholder's Subsidiary.
Section 5.5 NO ENCUMBRANCES. The Preferred Shares and the
certificates representing the Preferred Shares are now, and at all times during
the term hereof will be, held by Shareholder, Shareholder Subsidiary or by a
nominee or custodian for the benefit of such Shareholder or Shareholder
Subsidiary, free and clear of all Liens except for any such encumbrances or
proxies arising hereunder. The delivery by Shareholder or Shareholder Subsidiary
of the Preferred Shares to Sub pursuant to this Agreement shall pass to and
unconditionally vest in Sub good and valid title to all of the Preferred Shares,
free and clear of all claims, Liens, restrictions, limitations and encumbrances
whatsoever, other than any such encumbrances created by Sub or any restrictions
that may arise by virtue of state or federal securities laws.
Section 5.6 RELIANCE BY PARENT. Shareholder understands and
acknowledges that Parent is entering into, and causing Sub to enter into, the
Merger Agreement in reliance upon the execution and delivery of this Agreement
by Shareholder.
Section 5.7 ANCILLARY CONFIRMATIONS. (i) All Shareholder's
rights pursuant to the Asset Administration Agreement dated as of December 12,
1997 among Shareholder, PHFL and the other parties thereto have been duly
assigned to the Company and Shareholder is not entitled to any rights thereunder
(except as set forth in the letter agreement of even date herewith by and
between Shareholder and the Company with respect to such Asset Administration
Agreement).
(ii) There exist no obligations or liabilities, contingent or
otherwise, between the Company and Shareholder with respect to any United States
dollar hedging agreements including, without limitation, the ISDA Master
Agreement dated October 14, 1997 between BankBoston N.A. and the Shareholder
(except as set forth as set forth in the letter agreement of even date herewith
by and between Shareholder and the Company with respect to the unwinding of the
foreign currency back-to-back swap agreement for Australia).
(iii) all Shareholder's rights pursuant to the Loan Agreement
dated July 21, 1995 between Shareholder and Principal Healthcare Finance Limited
have been duly assigned to the Company and Shareholder is not entitled to any
rights thereunder.
-6-
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub hereby jointly and severally represent and
warrant to Shareholder as follows:
Section 6.1 DUE ORGANIZATION, ETC. Each of Parent and Sub is a
company duly organized and validly existing under the laws of the jurisdiction
of its incorporation. Each of Parent and Sub has all necessary power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Parent and Sub
have been duly authorized by all necessary action on the part of Parent and Sub
and, assuming its due authorization, execution and delivery by Shareholder
constitutes a valid and binding obligation of each of Parent and Sub,
enforceable against each of Parent and Sub in accordance with its terms, except
to the extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
Section 6.2 NO CONFLICTS. (i) Except for compliance with
Antitrust Laws, no filing with any Governmental Entity, no Permit and no
authorization, consent or approval of any Governmental Entity or other Person is
necessary for the execution of this Agreement by Parent or Sub and the
consummation by Parent and Sub of the transactions contemplated hereby and (ii)
none of the execution and delivery of this Agreement by Parent or Sub, the
consummation by Parent or Sub of the transactions contemplated hereby or
compliance by Parent or Sub with any of the provisions hereof shall (A) conflict
with or result in any breach of the organizational documents of Parent or Sub,
(B) result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent or Sub is a party or by
which Parent or Sub or any of their respective properties or assets may be bound
or (C) assuming compliance with Antitrust Laws, violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
Parent or Sub or any of their respective properties or assets.
Section 6.3 NO FINDER'S FEES. Except as disclosed pursuant to
the Merger Agreement, no broker, investment banker, or other Person is entitled
to any broker's, finder's, or other similar fee or commission in connection with
the transactions contemplated hereby based upon arrangements made by or on
behalf of Parent or Sub for which fee or commission the Shareholder may become
liable.
Section 6.4 INVESTMENT INTENT. The purchase of the Preferred
Shares from the Shareholder pursuant to this Agreement is for the account of
Parent or Sub for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof in violation of any applicable
provisions of the Securities Act.
-7-
ARTICLE VII
MISCELLANEOUS
Section 7.1 SHAREHOLDER CAPACITY. Shareholder executes this
Agreement solely in its capacity as the record holder or beneficial owner (or
Affiliate of such record holder or beneficial owner) of the Preferred Shares and
nothing herein shall limit or affect any actions taken by Shareholder or any
officer, director, partner or Affiliate of Shareholder in his, her or its
capacity as an officer or director of the Company.
Section 7.2 PUBLICATION. Shareholder hereby permits Parent and
Sub to publish and disclose and, if approval of the shareholders of the Company
is required under applicable law, in the Proxy Statement (including all
documents and schedules filed with the Commission) its identity and ownership of
Preferred Shares and the nature of its commitments, arrangements, and
understandings pursuant to this Agreement.
Section 7.3 ENTIRE AGREEMENT. This Agreement contains the
entire understanding of the parties hereto with respect to the sale of the
Preferred Shares and supersedes all prior agreements and understandings, oral
and written, with respect thereto.
Section 7.4 BINDING EFFECT; BENEFIT; ASSIGNMENT. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, except by will or by the laws of descent and distribution, without the
prior written consent of each of the other parties, except that each of Parent
and Sub may assign and transfer its rights and obligations hereunder to any
direct or indirect wholly owned Subsidiary of Parent or the Company. Nothing in
this Agreement, expressed or implied, is intended to confer on any Person, other
than the parties hereto, any rights or remedies; PROVIDED, however, that the
Company is an intended third party beneficiary against the parties in accordance
with its terms and can enforce this agreement.
Section 7.5 AMENDMENTS, WAIVERS, ETC. This Agreement may not
be amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by all of
the relevant parties hereto.
Section 7.6 NOTICES. All notices, requests, demands, waivers
and other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered in
person or mailed, certified or registered mail with postage prepaid, or sent by
facsimile (upon confirmation of receipt), as follows:
-8-
(i) If to Shareholder, to it at:
Omega Healthcare Investors, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
with an additional copy (which shall not constitute notice) to:
Omega Worldwide, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
Attention: President
Mayer, Brown, ▇▇▇▇ & Maw
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
(ii) If to Parent or Sub, to it at:
Four Seasons Health Care Limited
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy (which shall not constitute notice) to:
White & Case LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-9-
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery, except for a notice of a change of address, which shall be effective
only upon receipt thereof.
Section 7.7 SPECIFIC ENFORCEMENT. The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section 7.8 REMEDIES CUMULATIVE. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
Section 7.9 NO WAIVER. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof shall not constitute a
waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
Section 7.10 APPLICABLE LAW. THIS AGREEMENT AND THE LEGAL
RELATIONS BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO THE
CONFLICT OF LAWS RULES THEREOF. THE COMPETENT STATE OR FEDERAL COURTS LOCATED
WITHIN THE STATE OF
DELAWARE WILL HAVE JURISDICTION OVER ANY AND ALL DISPUTES
BETWEEN THE PARTIES HERETO, WHETHER IN LAW OR EQUITY, ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED
HEREBY, AND THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE JURISDICTION OF
SUCH COURTS. EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY
SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT
(I) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS,
(II) SUCH PARTY AND SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS
ISSUED BY SUCH COURTS OR (III) ANY LITIGATION OR OTHER PROCEEDING COMMENCED IN
SUCH COURTS IS BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES HEREBY AGREE THAT
DELIVERY OR SENDING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 7.6, OR IN SUCH OTHER
MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF
AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN
PROVIDED. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY
-10-
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.11 HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only, do not constitute a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 7.12 COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, and all
of which together shall be deemed to be one and the same instrument.
Section 7.13 TERMINATION. Subject to the last sentence of this
Section 7.13, this Agreement shall terminate, and none of Parent, Sub or
Shareholder shall have any rights or obligations hereunder and this Agreement
shall become null and void and have no effect upon the earliest to occur of (a)
the date on which the Stock Option is terminated in accordance with the terms of
the Tender and Option Agreement, dated as of the date hereof, among Parent, Sub,
Stockholder and the Company, (b) the consummation of the Purchase, (c) by the
mutual consent of Parent and Shareholder and (d) December 31, 2002; PROVIDED,
HOWEVER, that no termination under this Section 7.13 shall relieve any party of
liability for breach of this Agreement. In addition, upon termination of the
Merger Agreement by the Company at any time, this Agreement may be terminated by
Parent at any time in its sole discretion. Notwithstanding the foregoing,
Sections 7.6 through 7.16 shall survive the termination of this Agreement.
Section 7.14 AFFILIATES. As used in this Agreement, an
"AFFILIATE" of any Person shall mean any Person directly or indirectly
controlling, controlled by, or under common control with, such Person and, if
such Person is an individual, any member of the immediate family of such Person
(including parents, spouse, children and siblings) of such individual and any
trust whose principal beneficiary or trustee is such individual or one or more
members of such immediate family and any Person who is controlled by any such
member or trust; PROVIDED, THAT, for the purposes of this definition, "control"
(including with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or partnership interests, by contract or
otherwise.
Section 7.15 SEVERABILITY. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms, provisions, covenants and
restrictions contained in this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable term, provision, covenant or restriction or
any portion thereof had never been contained herein.
Section 7.16 INTERPRETATION. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in this
Agreement are for convenience of reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
-11-
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
Section 7.17 ACKNOWLEDGEMENT. It is the current intention of
each of the parties hereto and the Company to dispose of all of the units held
by it in Principal Healthcare Finance Unit Trust No. 1 and Principal Healthcare
Finance Trust No. 2 if an offer is received for such units that is acceptable to
such party or, as the case may be, the Company, in its sole and absolute
discretion and no party hereto or the Company currently intends to exercise its
rights of preemption on the sale by the Company or the parties hereto of their
respective units in such unit trusts; PROVIDED, however, each party hereto and
the Company may change such intentions at any time in its sole discretion
without notice to or consent from Parent, Sub, the Company, the Stockholder or
any other party.
* * *
-12-
IN WITNESS WHEREOF, Parent, Sub, and Shareholder have caused
this Agreement to be duly executed as of the day and year first above written.
FOUR SEASONS HEALTH CARE LIMITED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
DELTA I ACQUISITION, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
-2-
OMEGA HEALTHCARE INVESTORS, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
-3-
OMEGA WORLDWIDE, INC. (solely for the
purpose of Section 7.17 hereof)
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Secretary
-4-
