Exhibit (d)(2)
Execution Copy
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TENDER AND OPTION AGREEMENT
AND IRREVOCABLE PROXY
BY AND AMONG
FOUR SEASONS HEALTH CARE LIMITED,
DELTA I ACQUISITION, INC.,
OMEGA WORLDWIDE, INC.
AND
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Dated as of August 1, 2002
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS........................................................................................2
Section 1.1 Definitions.................................................................................2
ARTICLE II TENDER OF SHARES..................................................................................2
Section 2.1 Tender of Shares............................................................................2
ARTICLE III VOTING AND PROXY.................................................................................2
Section 3.1 Agreement to Vote the Subject Shares........................................................2
Section 3.2 Grant of Proxy..............................................................................3
Section 3.3 Nature of Proxy.............................................................................3
ARTICLE IV PURCHASE OPTION...................................................................................3
Section 4.1 Option Grant................................................................................3
Section 4.2 Adjustment upon Changes in Capitalization or Merger.........................................4
Section 4.3 Exercise of Option..........................................................................5
Section 4.4 Definitions.................................................................................5
Section 4.5 Termination of Option.......................................................................5
ARTICLE V COVENANTS..........................................................................................6
Section 5.1 Generally...................................................................................6
Section 5.2 No Solicitation of Other Offers.............................................................6
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS....................................................7
Section 6.1 Due Organization, etc.......................................................................7
Section 6.2 Ownership of Shares.........................................................................7
Section 6.3 No Conflicts................................................................................8
Section 6.4 No Finder's Fees............................................................................8
Section 6.5 No Encumbrances.............................................................................8
Section 6.6 Reliance by Parent..........................................................................8
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB.................................................9
Section 7.1 Due Organization, etc.......................................................................9
Section 7.2 No Conflicts................................................................................9
Section 7.3 Investment Intent...........................................................................9
ARTICLE VIII MISCELLANEOUS...................................................................................9
Section 8.1 Stockholder Capacity........................................................................9
Section 8.2 Publication................................................................................10
(i)
Section 8.3 Further Actions............................................................................10
Section 8.4 Entire Agreement...........................................................................10
Section 8.5 Binding Effect; Benefit; Assignment........................................................10
Section 8.6 Amendments, Waivers, etc...................................................................10
Section 8.7 Notices....................................................................................10
Section 8.8 Specific Enforcement.......................................................................11
Section 8.9 Remedies Cumulative........................................................................11
Section 8.10 No Waiver.................................................................................11
Section 8.11 Applicable Law............................................................................12
Section 8.12 Headings..................................................................................12
Section 8.13 Counterparts..............................................................................12
Section 8.14 Termination...............................................................................12
Section 8.15 Affiliates................................................................................13
Section 8.16 Severability..............................................................................13
Section 8.17 Interpretation............................................................................13
Section 8.18 Expenses..................................................................................13
Section 8.19 Acknowledgement...........................................................................13
Section 8.20 Certain Definitions.......................................................................14
(ii)
TENDER AND OPTION AGREEMENT
AND
IRREVOCABLE PROXY
TENDER AND OPTION AGREEMENT AND IRREVOCABLE PROXY (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"), Omega
Worldwide, Inc., a corporation organized under the laws of Maryland (the
"COMPANY"), and ___________________ (the "STOCKHOLDER").
W I T N E S S E T H:
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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, as of the date hereof, the Stockholder beneficially
owns (as such term is defined in Rule 13d-3 promulgated under the Exchange Act)
and the Stockholder is entitled to dispose of and to vote the number of Shares
set forth on EXHIBIT A hereto, as such shares may be adjusted by stock dividend,
stock split, recapitalization, combination, merger (other than the Merger),
consolidation, reorganization or other change in the capital structure of the
Company affecting the Shares (such shares, together with any other shares the
beneficial ownership of which is acquired by the Stockholder during the period
from and including the date hereof through and including the date on which this
Agreement is terminated in accordance with its terms, are collectively referred
to herein as the Stockholder's "SUBJECT SHARES"); 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 the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
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.
ARTICLE II
TENDER OF SHARES
Section 2.1 TENDER OF SHARES. The Stockholder hereby agrees to
tender validly (and not to withdraw), or to cause to be tendered validly (and
not withdrawn), pursuant to and in accordance with the terms of the Offer and
Rule 14d-2 under the Exchange Act, all of the Stockholder's Subject Shares
(other than Shares for which unexercised options are exercisable unless such
options shall have been exercised) not later than (i) the fifth (5th) Business
Day after commencement of the Offer and (ii) in the case of any Subject Shares
acquired after the date hereof, whether upon the exercise of options, warrants
or rights, the conversion or exchange of convertible or exchangeable securities,
or otherwise, the next succeeding Business Day after acquisition thereof, and
will cause the Stockholder's Subject Shares to remain validly tendered and not
withdrawn until the Offer is terminated or has expired without Sub purchasing
all Shares validly tendered in the Offer. Notwithstanding the provisions of the
preceding sentence, in the event that any Subject Shares are for any reason
withdrawn from the Offer or are not purchased pursuant to the Offer, such
Subject Shares shall remain subject to the terms of this Agreement until the
termination hereof. The parties hereby acknowledge and agree that the obligation
of Sub to accept for payment and pay for Shares tendered into the Offer,
including the Subject Shares, is subject to the conditions set forth in Annex A
to the Merger Agreement. The obligations of the Stockholder hereunder are
conditioned on the Merger Agreement not being amended to decrease the Offer
Price or in any manner that materially delays or adversely affects the ability
of the Company, Parent or Sub to consummate the Offer, the Merger or the other
transactions contemplated by the Merger Agreement.
ARTICLE III
VOTING AND PROXY
Section 3.1 AGREEMENT TO VOTE THE SUBJECT SHARES. The
Stockholder, 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 class or classes of the capital
stock of the Company, however called, or in connection with any written consent
of the holders of any class or classes of the capital stock of the Company, the
Stockholder shall vote (or cause to be voted) the Subject 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 required in furtherance thereof, (y) against any action, transaction
or agreement that the Stockholder knows would result in a breach in any
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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 the Stockholder 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, including the
PHFL Offer and the sale of the Company's equity interests in PHFT): (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 all or substantially all
of the assets of the Company or any of its Subsidiaries, 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 Bylaws; (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. The Stockholder hereby agrees that the
Stockholder 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. The Stockholder hereby appoints
Parent, Sub and any designee of Parent or Sub, and each of them individually,
the Stockholder'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 the Stockholder's Subject Shares in accordance with Section 3.1.
This proxy is given to secure the performance of the duties of the Stockholder
under this Agreement. The Stockholder affirms that this proxy is coupled with an
interest and shall be irrevocable. Each Stockholder 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 the Stockholder 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 the Stockholder. The Stockholder agrees that it will not
grant any proxy to any Person that conflicts with the proxy granted by the
Stockholder 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 the Stockholder.
ARTICLE IV
PURCHASE OPTION
Section 4.1 OPTION GRANT. The Stockholder hereby severally
grants to each of Parent and Sub an irrevocable option (each such option, a
"STOCK OPTION") to purchase, at any time after the occurrence of a Triggering
Event (as defined below) but prior to the termination of
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the Stock Option pursuant to Section 4.5, all but not less than all of the
Stockholder's Subject Shares at a purchase price (the "EXERCISE PRICE") per
Share equal to the Offer Price. A Stock Option shall not be exercisable (i)
unless all waiting periods under any Antitrust Laws required for the purchase of
such Shares pursuant to such Stock Option shall have expired or been waived,
(ii) if there shall then be in effect any preliminary injunction or other
non-final order issued by any Governmental Entity prohibiting the exercise of
any Stock Option, (iii) unless Parent has exercised its rights to purchase
shares pursuant to the terms of the Other Tender Agreements as in effect on the
date hereof and (iv) unless an Affiliate of Parent has purchased the ordinary
shares of PHFL and the warrants to purchase ordinary shares of PHFL held by
Stockholder pursuant to the PHFL Offer or, in the event the PHFL Offer has
terminated, Parent has irrevocably committed to offer to purchase such shares
and warrants on the terms set forth in the PHFL Offer as soon as practicable,
subject to compliance with applicable laws and the Articles of Association of
PHFL. The Stockholder shall promptly notify Parent and Sub in writing in the
event that it obtains current actual knowledge (without any duty of inquiry or
investigation) of the occurrence of any Triggering Event, it being understood
that the giving of such notice is not a condition to the right of Parent to
exercise the Stock Option.
Section 4.2 ADJUSTMENT UPON CHANGES IN CAPITALIZATION OR
MERGER. (a) In the event of any change in the outstanding number of Shares by
reason of a stock dividend, stock split, reverse stock split, split-up, merger,
consolidation, recapitalization, combination, conversion, exchange of shares,
extraordinary or liquidating dividend or similar transaction that would affect
Parent's or Sub's rights hereunder, the type and number of shares or securities
purchasable upon the exercise of the Stock Option and the Exercise Price shall
be adjusted appropriately, and proper provision will be made in the agreements
governing such transaction, as shall fully preserve the economic benefits
provided hereunder to Parent and Sub and the full satisfaction of the
Stockholder's obligations hereunder.
(b) Without limiting the foregoing, whenever the number of
Shares purchasable upon exercise of the Stock Option is adjusted as provided in
this Section 4.2, the Exercise Price shall be adjusted by multiplying the
Exercise Price by a fraction, the numerator of which is equal to the number of
Subject Shares purchasable prior to the adjustment and the denominator of which
is equal to the number of Subject Shares purchasable after the adjustment.
(c) Without limiting or altering the parties' rights and
obligations under the Merger Agreement, in the event that the Company enters
into an agreement (i) to consolidate with or merge into any Person, other than
Parent or one of its Subsidiaries, and the Company will not be the continuing or
surviving corporation in such consolidation or merger, (ii) to permit any
Person, other than Parent or one of its Subsidiaries, to consolidate with or
merge into the Company and the Company will be the continuing or surviving
corporation, but in connection with such consolidation or merger, the Shares
outstanding immediately prior to the consummation of such consolidation or
merger will be changed into or exchanged for stock or other securities of the
Company or any other Person or cash or any other property, or the Shares
outstanding immediately prior to the consummation of such consolidation or
merger will, after such consolidation or merger, represent less than 50% of the
outstanding voting securities of the merged company or (iii) to sell or
otherwise transfer all or substantially all of its assets (other than the
Company's equity interest in PHFT) to any Person, other than Parent or one of
its Subsidiaries, then, and in each such case, the Company and, if Stockholder
is a party thereto, Stockholder
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agrees that the agreement governing such transaction will make proper provision
so that the Stock Option will, upon the consummation of any such transaction and
upon the terms and conditions set forth herein, be converted into, or exchanged
for, an option with identical terms appropriately adjusted to acquire the number
and class of shares or other securities or property that Parent would have
received in respect of Subject Shares had the Stock Option been exercised
immediately prior to such consolidation, merger, sale or transfer or the record
date therefor, as applicable, and shall make any other necessary adjustments.
The Company and the Stockholder to the extent, if any, that it is able to do so,
shall take such steps in connection with such consolidation, merger, sale or
transfer as may be reasonably necessary to assure that the provisions hereof
shall thereafter apply as nearly as possible to any securities or property
thereafter deliverable upon exercise of the Stock Option.
Section 4.3 EXERCISE OF OPTION. In the event that a Triggering
Event has occurred, the Stock Option has not terminated and Parent or Sub wishes
to exercise any Stock Option, it shall send a written notice (the "Notice") to
the Stockholder specifying (i) the number of Subject Shares for which the Stock
Option is being exercised (which must constitute all of the Subject Shares held
by Stockholder) and (ii) a date (not less than two (2) Business Days and not
later than ten (10) Business Days after the date of such Notice) for the closing
(the "OPTION CLOSING") of the purchase of the Stockholder's Subject Shares. The
Option Closing shall take place at the offices of White & Case LLP, 1155 Avenue
of the Americas, New York, New York. At any Option Closing, Parent or Sub will
deliver to the Stockholder, by wire transfer of immediately available funds to
the account designated by the Stockholder to Parent or Sub prior to the Option
Closing, the Exercise Price payable in respect of the Subject Shares to be
purchased from the Stockholder at the Option Closing, and the Stockholder will
deliver to Parent or Sub such Subject Shares, free and clear of all Liens, with
any and all certificates evidencing such Subject Shares, if any, being duly
endorsed for transfer by the Stockholder and accompanied by all powers of
attorney and/or other instruments reasonably necessary to convey valid and
unencumbered title thereto to Parent or Sub. The Company will pay all expenses,
and any and all United States federal, state and local taxes and other charges
that may be payable in connection with the preparation, issue and delivery of
stock certificates under this Section 4.3 in the name of Parent or its designee.
Section 4.4 DEFINITIONS. (a) "TRIGGERING EVENT" shall mean any
one of the following:
(i) the Merger Agreement is terminated under Section 8.1 and as a
result of such termination Parent may be entitled to receive
termination fees under Section 9.1(b) of the Merger Agreement
(regardless of whether such fees are then actually payable);
or
(ii) Stockholder fails to validly tender and not withdraw the
Subject Shares as required by Section 2.1 hereof regardless of
whether the Offer is consummated or expires.
Section 4.5 TERMINATION OF OPTION. The Stock Option will
terminate upon the earliest of (v) the issuance of any non-appealable permanent
injunction or other final order issued by any Governmental Entity prohibiting
the exercise of the Stock Option, (w) the Effective
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Time, (x) termination of the Merger Agreement (I) pursuant to Section 8.1(a)
thereof, (II) by the Company pursuant to Section 8.1(b)(i), Section 8.1(c)(ii)
or Section 8.1(c)(iii)(x) thereof, (III) by the Company pursuant to Section
8.1(b)(ii) or Section 8.1(c)(iii)(y), other than, in each case, upon or during
the continuance of an event which would become a Triggering Event if the Merger
Agreement was terminated or (III) by Parent, other than upon or during the
continuance of a Triggering Event, (y) seven (7) days following any termination
of the Merger Agreement upon or during the continuance of a Triggering Event (or
if, at the expiration of such seven (7) day period, the Stock Option cannot be
exercised by reason of any applicable judgment, decree, order, law or regulation
(other than those judgments and final orders described in clause (v) above) or
by reason of the failure of any waiting period under any Antitrust Laws
applicable to the purchase of the Subject Shares pursuant to the Stock Option to
have expired or been waived provided that Parent has not unreasonably delayed
any filing required by such Antitrust Laws, seven (7) Business Days after such
impediment to exercise has been removed or has become final and not subject to
appeal) and (z) the eighty second (82nd) day immediately following the
commencement of the Offer.
ARTICLE V
COVENANTS
Section 5.1 GENERALLY. The Stockholder agrees that, except for
tendering the Subject Shares in accordance with Section 3.1 and for the granting
of the proxy and power of attorney pursuant to Section 3.2, the Stockholder
shall not and shall cause its Affiliates 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
the Stockholder's Subject Shares, (ii) except with respect to matters not
covered by this Agreement or the Merger Agreement, grant any proxies or powers
of attorney in respect of the Subject Shares, deposit any of the Stockholder's
Subject Shares into a voting trust or enter into a voting agreement with respect
to any of the Stockholder's Subject Shares and (iii) take any action that would
have the effect of preventing or disabling (A) the Stockholder from performing
its obligations under this Agreement or (B) Parent, Sub or their designees from
exercising their rights under Section 3.2.
Section 5.2 NO SOLICITATION OF OTHER OFFERS. Each Stockholder
shall, and shall take all actions reasonably necessary to 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 acting on the Stockholder'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. No
Stockholder shall take, and shall not authorize or permit 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 acting on the Stockholder'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
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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
regarding or in connection with an Acquisition Proposal. Without limiting the
foregoing, Parent, Sub, the Company and the Stockholder agree that any violation
of the restrictions set forth in this Section 5.2 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 the Stockholder or any of its wholly owned subsidiaries, (to the extent
such Persons are acting on the Stockholder's behalf) and has been informed by
the Stockholder, or otherwise made aware or had knowledge, of its obligations
hereunder shall constitute a breach by the Stockholder of this Section 5.2;
provided, however, that if the Stockholder is aware that any such Person is in
violation of the restrictions contained in this Section 5.2, the Stockholder
shall be in breach of this Section 5.2 if such agent does not refrain from such
action. The Stockholder shall enforce, to the fullest extent permitted under
applicable law, the provisions of any standstill, confidentiality or similar
agreement entered into by the Stockholder or any of its Affiliates or
representatives including, but not limited to, where necessary, seeking to
obtaining injunctions to prevent any breaches of such agreements and to enforce
specifically the terms and provisions thereof in any court having jurisdiction.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
The Stockholder hereby represents and warrants to Parent and
Sub as follows:
Section 6.1 DUE ORGANIZATION, ETC. The Stockholder (if it is a
company or partnership) is duly organized and validly existing under the laws of
the jurisdiction of its incorporation or organization. The Stockholder (i) if it
is a company or partnership, has the requisite power and authority and/or (ii)
if it is an individual, has the capacity, in each case 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 the Stockholder
(if it is a company or partnership) have been duly authorized by all necessary
action on the part of the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder and, assuming that this Agreement constitutes a
valid and binding obligation of Parent and Sub, constitutes a valid and binding
obligation of the Stockholder enforceable against the Stockholder 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 6.2 OWNERSHIP OF SHARES. The Stockholder owns, of
record and beneficially, the number of Shares set forth on EXHIBIT A hereto and
such number represents all the
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Shares beneficially owned by the Stockholder. The Stockholder has sole voting
power and sole power of disposition, in each case with respect to all of the
Shares set forth on EXHIBIT A hereto, with no limitations, qualifications or
restrictions on such rights, subject only to applicable securities laws and the
terms of this Agreement. Except as set forth on EXHIBIT A, the Stockholder does
not own, of record or beneficially, any options, warrants, rights,
subscriptions, agreements, proxies, obligations, convertible or exchangeable
securities, or other commitments or claims of any character, contingent or
otherwise, relating to shares of capital stock of the Company or any of its
Subsidiaries.
Section 6.3 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 the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Stockholder, the consummation by
the Stockholder of the transactions contemplated hereby or compliance by the
Stockholder with any of the provisions hereof shall (A) conflict with or result
in any breach of any organizational documents applicable to the Stockholder, (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 the Stockholder is a party or by which the
Stockholder or any of the Stockholder's Subject 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 the
Stockholder, the Subject Shares or any of the Stockholder's other properties or
assets.
Section 6.4 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 Stockholder's knowledge, on
behalf of the Stockholder.
Section 6.5 NO ENCUMBRANCES. The Stockholder's Subject Shares
and the certificates representing the Stockholder's Subject Shares are now, and
at all times during the term hereof will be, held by the Stockholder, or by a
nominee or custodian for the benefit of the Stockholder, free and clear of all
Liens except for any such encumbrances or proxies arising hereunder. The
transfer by the Stockholder of the Stockholder's Subject Shares to Sub pursuant
to this Agreement shall pass to and unconditionally vest in Sub good and valid
title to all of the Stockholder's Shares, free and clear of all claims, Liens,
restrictions, limitations and encumbrances whatsoever, other than any such
encumbrances created by Sub and any restrictions that may arise by virtue of
state securities laws.
Section 6.6 RELIANCE BY PARENT. The Stockholder 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 the Stockholder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub hereby jointly and severally represent and
warrant to each Stockholder as follows:
Section 7.1 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 or organization. Each of Parent and Sub has
all necessary 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 Parent and Sub have
been duly authorized by all necessary action on the part of Parent and Sub.
This Agreement has been duly executed and delivered by Parent and Sub and,
assuming its due authorization, execution and delivery by each Stockholder
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 7.2 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 7.3 INVESTMENT INTENT. The purchase of the Subject
Shares from the Stockholder 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.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 STOCKHOLDER CAPACITY. No Stockholder executing
this Agreement
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who is or becomes during the term hereof a director or officer of the Company
makes any agreement or understanding herein in his or her capacity as such
director or officer. Each Stockholder executes this Agreement solely in his or
her capacity as the record holder or beneficial owner (or Affiliate of such
record holder or beneficial owner) of the Stockholder's Subject Shares and
nothing herein shall limit or affect any actions taken by a Stockholder or any
officer, director, partner or Affiliate of the Stockholder in his, her or its
capacity as an officer or director of the Company.
Section 8.2 PUBLICATION. Each Stockholder hereby permits
Parent and Sub to publish and disclose in the Offer Documents and, if approval
of the Stockholders 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 Shares and the nature of its
commitments, arrangements, and understandings pursuant to this Agreement.
Section 8.3 FURTHER ACTIONS. Each of the parties hereto agrees
that it will use its commercially reasonable efforts to do all things reasonably
necessary to convey Subject Shares pursuant to the Stock Option in accordance
with this Agreement.
Section 8.4 ENTIRE AGREEMENT. This Agreement contains the
entire understanding of the parties hereto with respect to the subject matter
contained herein and supersedes all prior agreements and understandings, oral
and written, with respect thereto.
Section 8.5 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. Nothing in this Agreement,
expressed or implied, is intended to confer on any Person, other than the
parties hereto, any rights or remedies.
Section 8.6 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 8.7 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:
(i) If to the Stockholder, at the address set forth on
EXHIBIT A;
with a copy (which shall not constitute notice) to:
Omega Worldwide, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Fax:
Attention: President
and with a copy (which shall not constitute notice) to:
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: ▇▇▇-▇▇▇-▇▇▇▇
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 8.8 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 8.9 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 8.10 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
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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 8.11 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 8.7, 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 IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.12 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 8.13 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 8.14 TERMINATION. Subject to the last sentence of this
Section 8.14, this Agreement shall terminate, and none of Parent, Sub or any
Stockholder 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 Effective Time, (b) termination of the Merger Agreement (I) pursuant to
Section 8.1(a) thereof, (II) by the Company pursuant to Section 8.1(b)(i),
Section 8.1(b)(ii), Section 8.1(c)(ii) or Section 8.1(c)(iii) thereof or (III)
by Parent, in each case in accordance with its terms, (c) the date on which the
Stockholder's Subject Shares are accepted for payment pursuant to the Offer or
purchased pursuant to the Stock Option or (d) the seventy fifth (75th) day
immediately following the commencement of the Offer; PROVIDED, HOWEVER, that no
termination under this Section 8.14 shall relieve any party of liability for
breach of this
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Agreement. Notwithstanding the foregoing, Article IV of this Agreement shall
survive in accordance with its terms, this Section 8.14 shall survive until the
termination of Article IV of this Agreement and Sections 8.7 through 8.17 shall
survive the termination of this Agreement.
Section 8.15 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 8.16 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 8.17 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. 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 8.18 EXPENSES. All fees, costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such fees, costs and expenses.
Section 8.19 ACKNOWLEDGEMENT. The Stockholder hereby
acknowledges that, except as set forth in Section 4.10(b) of the Company
Disclosure Letter or on Exhibit A attached hereto, there exists no employment,
consulting, severance, indemnification agreements or deferred compensation
agreements between the Company or any of its Subsidiaries and the Stockholder or
any other agreement that would give the Stockholder the right (whether or not
subject to any condition or contingency and whether currently or in the future)
to receive any payment from the Company or any of its Subsidiaries (including in
each case, for the avoidance of doubt, PHFT and PHFL and its Subsidiaries). For
the avoidance of doubt, nothing in this Section 8.19 shall prohibit the
Stockholder who is or was an officer or director of the Company or any of its
Subsidiaries from claiming, to the extent otherwise lawfully entitled to do so,
under any directors and officers insurance policy of the Company or any of its
Subsidiaries or for indemnification under rights granted by agreement, statute
or other law or regulation.
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Section 8.20 CERTAIN DEFINITIONS. For purposes of this
Agreement, the term "Other Tender Agreements" shall mean each of the
Tender and
Option Agreements, dated as of the date hereof, among the Company, Parent, Sub
and each of [▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇▇▇▇▇▇▇▇, Ashbourne Consolidated Group
Ltd.and Omega Healthcare Investors, Inc].(1)
* * *
--------
(1) Name of signatory excluded from this list, if appropriate.
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IN WITNESS WHEREOF, Parent, Sub, the Company and the
Stockholder have caused this Agreement to be duly executed as of the day and
year first above written.
FOUR SEASONS HEALTH CARE LIMITED
By __________________________________
Name:
Title:
DELTA I ACQUISITION, INC.
By __________________________________
Name:
Title:
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OMEGA WORLDWIDE, INC.
By __________________________________
Name:
Title:
-3-
______________________________
By __________________________________
Name:
Title:
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EXHIBIT A
[To be completed by Stockholder]
Name and Address: ______________
______________
______________
______________
Shares owned directly: ______________
Shares owned jointly or through a trust: ______________
Other securities owned: ______________
If applicable, other Section 8.19 agreements:
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