EXHIBIT 10.28
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of this
22nd day of April, 2002 by and between Transworld Healthcare, Inc., a New York
corporation (the "Company"), and Triumph Partners III, L.P. and Triumph III
Investors, L.P. (together, "Triumph"), and Hyperion TWH Fund II LLC, a Delaware
limited liability company ("Hyperion," and Triumph and Hyperion each an
"Investor" and, collectively, the "Investors").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Shares.
1.1 Sale and Issuance of Shares. Subject to the terms and
conditions of this Agreement, at the Closing (as hereinafter defined),
the Investors agree to purchase and the Company agrees to sell and
issue to the Investors an aggregate of 750,000 shares (the "Shares") of
common stock, par value $.01 per share, of the Company (the "Common
Stock") at a price of $4.25 per Share, for an aggregate purchase price
of $3,187,500 divided between the Investors as set forth on Schedule I
hereto.
1.2 Closing. The purchase and sale of the Shares shall take place
at the offices of Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the date of the satisfaction
of the conditions set forth in Sections 4 and 5, or at such other time
and place as the Company and the Investors mutually agree upon orally
or in writing (which time and place are designated as the "Closing").
At the Closing, in addition to satisfying the other conditions set
forth herein, the Company shall deliver to the Investors one or more
certificates representing the Shares, against delivery to the Company
by the Investors of wire transfers in the aggregate amount of
$3,187,500.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to, and agrees with, the Investors that:
2.1 Organization, Good Standing and Qualification. The Company is
a corporation duly organized, validly existing and in good standing
under the laws of the State of New York. The Company has all requisite
power and authority to own, lease, license and use its properties and
assets and to carry on its business as now conducted and as proposed to
be conducted. The Company has all requisite power and authority to
enter into and perform this Agreement and the transactions contemplated
hereby.
2.2 Authorization. All corporate action on the part of the Company
and its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of the Company hereunder and the
authorization, sale, issuance and delivery of the Shares has been
taken. This Agreement constitutes the valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
except (i) as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, and
(ii) as enforceability
may be limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
2.3 Valid Issuance of Shares.
(a) The Shares, when issued, sold and delivered in accordance with
the terms hereof and for the consideration expressed herein, (i) will
be duly and validly issued and fully paid and nonassessable, (ii) will
be free of any pledges, liens, security interests, claims or other
encumbrances of any kind, (iii) will be issued in compliance with all
applicable federal and state securities laws, and (iv) will not be
issued in violation of any preemptive rights of shareholders. The
Shares have been duly and validly reserved for issuance.
(b) The outstanding shares of Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and were
issued in compliance with all applicable federal and state securities
laws.
2.4 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local governmental
authority on the part of the Company or any of its subsidiaries is
required in connection with the consummation of the transactions
contemplated by this Agreement.
2.5 Compliance with Other Instruments. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in a violation of, or be in
conflict with, or constitute, with or without the passage of time or
the giving of notice or both, a default under, any provision of the
Company's certificate of incorporation, as amended, or bylaws, as
amended, or any judgment, order, writ or decree, or any contract,
agreement or instrument, or require any consent, waiver or approval
thereunder, or give rise to a right to terminate or accelerate the
performance required thereby, or constitute an event which results in
the creation of any lien, charge or encumbrance upon any asset of the
Company. The execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated hereby, will not
constitute a "change of control" under any agreement or contract or
give rise to any right to receive severance or similar payments.
2.6 Registration Rights Agreement. The Shares being acquired by
Hyperion hereunder shall be treated as "Registrable Shares" for
purposes of the Registration Rights Agreement entered into between the
Company and Hyperion Partners II L.P. in 1996 and Hyperion shall be
entitled to the benefits thereof. At the Closing, the Company will
enter into a Registration Rights Agreement with Triumph with respect to
the Shares (the "Registration Rights Agreement") in substantially the
form attached as Exhibit A hereto .
3. Representations and Warranties of each Investor. Each Investor
hereby represents and warrants to the Company, solely with respect to itself,
that:
3.1 Authorization. Such Investor has all requisite power and
authority to enter into this Agreement. This Agreement has been duly
executed and delivered and
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constitutes the Investor's valid and legally binding obligation,
enforceable in accordance with its terms, except (i) as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement
of creditors' rights generally and (ii) as enforceability may be
limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
3.2 Purchase Entirely for Own Account. The Shares to be purchased
by such Investor will be acquired for investment for its own account,
and, except as contemplated by the Registration Rights Agreement or
otherwise in accordance with applicable securities laws, not with a
view to the resale or distribution of any part thereof and without the
present intention of selling, granting any participation in, or
otherwise distributing the same.
3.3 Investment Experience. Such Investor can bear the economic
risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Shares.
3.4 Restricted Securities. Such Investor understands that the
Shares it is purchasing are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired
from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may be
resold without registration under the Act, only in certain limited
circumstances. In this connection, such Investor represents that it is
familiar with Rule 144 of the Securities and Exchange Commission, as
presently in effect, and understands the resale limitations imposed
thereby and by the Act.
3.5 Legends. Such Investor understands that the certificates
evidencing the Shares will bear the following legend:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN
MAY BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT OR SUCH LAWS AND THE RULES AND
REGULATIONS THEREUNDER."
The Shares shall not be required to bear such legend if an opinion
of counsel reasonably satisfactory to the Company is delivered to the
Company to the effect that neither the legend nor the restrictions on
transfer contained in this Agreement are required to insure compliance
with the Act. Whenever, pursuant to the preceding sentence, any
certificate for any of the Shares is no longer required to bear the
foregoing legend, the Company may, and if requested by the holder
thereof, shall, issue to the holder, at the Company's expense, a new
certificate not bearing the foregoing legend.
4. Conditions to each Investor's Obligations at Closing. The
obligations of each Investor under this Agreement are subject to the fulfillment
on or before the Closing of each of the following conditions:
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4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true in all
material respects on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of
the Closing.
4.2 Performance. The Company shall have performed and complied
with all agreements, covenants, obligations and conditions contained in
this Agreement in all material respects that are required to be
performed or complied with by it on or before the Closing.
4.3 Compliance Certificate. The President or Chief Executive
Officer of the Company shall deliver to each Investor at the Closing a
certificate certifying that the conditions specified in Sections 4.1,
4.2, 4.4, 4.5 and 4.8 have been fulfilled.
4.4 Qualifications; Litigation. All authorizations, approvals or
permits, if any, of any governmental authority or regulatory body that
are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective
as of the Closing. There shall not have been instituted or threatened
any legal proceeding relating to, or seeking to prohibit or otherwise
challenge, this Agreement or the consummation of the transactions
contemplated by this Agreement, or seeking to obtain substantial
damages with respect thereto.
4.5 Consents. All consents and waivers that are required in
connection with the Closing under this Agreement, and the consummation
of the transactions contemplated hereby, shall be duly obtained and
effective as of the Closing.
4.6 Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated at the Closing shall
have taken place and all documents incident thereto shall have been
prepared and executed, and each Investor shall have received all such
counterpart original and certified or other copies of such documents.
4.7 Opinion of Company Counsel. Xxxxx Raysman Xxxxxxxxx Xxxxxx &
Xxxxxxx LLP, counsel for the Company, shall have delivered an opinion
which is addressed to each Investor, dated as of the Closing, as to the
matters referred to in Sections 2.1, 2.2 and 2.3(a).
4.8 Related Documents. The Investors shall have received executed
copies of (i) the Tax Bonus, Tax Loan and Tax Indemnification Agreement
between Transworld Healthcare (UK) Limited ("TWUK"), the Company and
Xxxxxxx Xxxxxx, (ii) the Tax Bonus, Tax Loan and Tax Indemnification
Agreement between Transworld Healthcare (UK) Limited, the Company and
Xxxxx Xxxxx, (iii) the Irrevocable Undertaking by Xx. Xxxxxx to TWUK,
the Company and Triumph Partners III, L.P., (iv) the Irrevocable
Undertaking by Xx. Xxxxx to TWUK, the Company and Triumph Partners III,
L.P., (v) the Promissory Note in the principal amount of $550,000 from
Xx. Xxxxxx to TWUK, (vi) the Promissory Note in the principal amount of
$390,000 from Xx. Xxxxx to TWUK, (vii) the Pledge and Security
Agreement between Xx. Xxxxxx and TWUK, (viii) the
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Pledge and Security Agreement between Xx. Xxxxx and TWUK, and (ix) the
Registration Rights Agreement (collectively, the "Related Documents").
5. Conditions to the Company's Obligations at the Closing. The
obligations of the Company to the Investors under Section 1 of this Agreement
are subject to the fulfillment on or before the Closing of the following
conditions, any of which may be waived by the Company:
5.1 Representations and Warranties. The representations and
warranties of each Investor contained in Section 3 shall be true in all
material respects on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of
the date of the Closing.
5.2 Payment of Purchase Price. Each Investor shall have delivered
the purchase price specified in Section 1.2 and Schedule I hereto.
5.3 Performance. Each Investor shall have performed and complied
with all agreements, covenants, obligations and conditions contained in
this Agreement in all material respects that are required to be
performed or complied with by it on or before the Closing.
5.4 Qualifications; Litigation. All authorizations, approvals or
permits, if any, of any governmental authority or regulatory body that
are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective
as of the Closing. There shall not have been instituted or threatened
any legal proceeding relating to, or seeking to prohibit or otherwise
challenge, this Agreement or the consummation of the transactions
contemplated by this Agreement, or seeking to obtain substantial
damages with respect thereto.
5.5 Related Documents. The Company shall have received, in form
and substance reasonably satisfactory to the Company, duly executed
copies of the Related Documents.
5.6 Consents. All consents and waivers that are required in
connection with the Closing under this Agreement, and the consummation
of the transactions contemplated hereby, shall be duly obtained and
effective as of the Closing.
6. Covenants of the Company. The Company covenants and agrees with each
Investor as follows:
6.1 Advice of Changes. The Company will promptly advise each
Investor in writing of any event occurring subsequent to the date of
this Agreement which would render any representation or warranty of the
Company contained in this Agreement, if made on or as of the date of
such event or the date of the Closing, untrue or inaccurate in any
material respect.
6.2 Listing Application. The Company shall prepare and file with
the American Stock Exchange an Additional Listing Application, in the
form and within the
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time period prescribed by the American Stock Exchange, with respect to
the listing of the Shares.
6.3 Use of Proceeds. The Company shall use the purchase price set
forth in Section 1.1 for the purposes described in the Related
Documents.
7. Indemnification. The Company agrees to indemnify each Investor and
its general partner or managing member, and each officer, director, employee,
partner, agent and affiliate of such Investor and its general partner or
managing member (the "Indemnified Parties") for, and hold each Indemnified Party
harmless from and against: (i) any and all damages, losses, claims and other
liabilities of any and every kind, including, without limitation, judgments and
costs of settlement, and (ii) any and all out-of-pocket costs and expenses of
any and every kind, including, without limitation, reasonable fees and
disbursements of one counsel for such Indemnified Parties (selected jointly by
the Investors) (all of which expenses periodically shall be reimbursed as
incurred), in each case, arising out of or suffered or incurred in connection
with (A) any investigative, administrative or judicial proceeding or claim
brought or threatened relating to or arising out of the Investor's purchase of
the Shares, or this Agreement and the Registration Rights Agreement or the
transactions contemplated hereby and thereby, (B) any material inaccuracy or
alleged inaccuracy in any representation or warranty of the Company made in this
Agreement or any material breach or alleged breach by the Company of any
covenant or agreement made in this Agreement or the Registration Rights
Agreement or (C) any Indemnified Party exercising its rights to indemnification
under this Section 7 against the Company.
8. Termination.
8.1 Termination Prior to Closing. This Agreement may be terminated
at any time prior to the Closing:
(a) by the mutual consent of the Investors and the Company; or
(b) by the Investors, if there has been a material
misrepresentation or material breach on the part of the Company in any
of the representations, warranties, covenants or agreements of the
Company set forth herein, or if there has been any material failure on
the part of the Company to comply with its obligations hereunder, after
written notice from either of the Investors to the Company and the
Company having 30 days thereafter in which to cure, or by the Company
if there has been a material misrepresentation or material breach on
the part of either Investor in any of the representations, warranties,
covenants or agreements of either Investor set forth herein, or if
there has been any material failure on the part of either Investor to
comply with its obligations hereunder, after written notice from the
Company to the Investors and the Investors having 30 days thereafter in
which to cure.
8.2 Liability Upon Termination.
(a) In the event of termination of this Agreement pursuant to
Section 8.1(a), no party hereto shall have any liability or further
obligation to any other party hereto except as provided in Sections 7,
9.7 and 9.8.
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(b) In the event of termination pursuant to Section 8.1(b), (i) if
any Investor is the non-breaching party, such Investor shall be
entitled to reimbursement of expenses as set in Section 9.8 and (ii)
the non-breaching party shall have the right to pursue all rights and
remedies available to it hereunder or otherwise provided at law or
equity, including without limitation, the right to seek specific
performance and money damages.
9. Miscellaneous.
9.1 Survival of Warranties. The warranties, representations,
covenants and agreements of the Company and the Investors contained in
or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing. Neither any investigation
by or on behalf of the Investors, nor the receipt by the Investors of
any data or information from the Company, shall in any way affect the
right of the Investors to rely on the representations, warranties,
covenants and agreements of the Company or the right of the Investors
to terminate this Agreement as provided in Section 8.
9.2 Successors and Assigns. Each Investor and each assignee of
each Investor may, without the consent of the Company, assign its
rights under this Agreement, in whole or in part, in connection with
any sale or transfer to an affiliate or a partner, and the terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in
this Agreement.
9.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to
agreements among New York residents entered into and to be performed
entirely within New York.
9.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be
deemed effectively given upon receipt by the party to be notified or
five days after deposit with the United States Post office, by
registered or certified mail, postage prepaid and addressed to the
party to be notified (i) if to the Company, at the following address:
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000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx
LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(ii) if to Triumph, at the following address:
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxxxxx X. Xxxxxxx XX
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxx Procter LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(ii) if to Hyperion, at the following address:
00 Xxxxxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxx
Telecopy No.: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx, Esq.
Telecopy No.: (000) 000-0000
or at such other address as any of the parties may designate by 10
days' advance written notice to the other parties.
9.7 No Finder's Fee. Each party represents that it is not, and
will not be, obligated for any finder's fee or commission in connection
with this transaction.
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Each Investor agrees to indemnify and hold harmless the Company
from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which such Investor or any of its
officers, employees or representatives is responsible.
The Company agrees to indemnify and hold harmless each Investor
from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of their
respective officers, employees or representatives is responsible.
9.8 Expenses. The Company agrees to pay all out-of-pocket fees and
reasonable expenses incurred by the Investors in connection with this
Agreement and the transactions contemplated hereby (whether or not the
transactions contemplated hereby are consummated) including, without
limitation, the reasonable fees and expenses of counsel for the
Investors incurred in connection with this Agreement and the
transactions contemplated hereby (including, without limitation, any
legal fees and expenses relating to any future waiver, consent or
amendment, whether or not any such future action is given or
consummated).
9.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Investors and
the Company.
9.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
9.11 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof.
9.12 Equitable Adjustments. Prior to the consummation of the
Closing, all number of Shares referred to herein shall be equitably
adjusted to account for stock splits, stock dividends, mergers and
similar corporate events.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
TRANSWORLD HEALTHCARE, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Chief
Financial Officer
"THE INVESTORS"
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, L.P.,
its General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx XX
Title: President
TRIUMPH III INVESTORS, L.P.
By: Triumph III Investors, Inc.,
its General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx XX
Title: President
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HYPERION TWH FUND II LLC
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: a Managing Member
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Schedule I
----------
Name of Investor Number of Shares Purchase Price
---------------- ---------------- --------------
Triumph Partners III, L.P. 370,500 $1,574,625
Triumph III Investors, L.P. 4,500 $19,125
Hyperion TWH Fund II LLC 375,000 $1,593,750
TOTAL 750,000 $3,187,500
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