1
Exhibit 10.116
OPTION AGREEMENT
This Option Agreement (this "Agreement") is entered into by and between
Unison HealthCare Corporation, a Delaware corporation (the "Company"), and Xxxxx
X. Xxxxxxx ("Xxxxxxx") as of March 31, 1997.
RECITALS
The Company and Xxxxxxx wish to enter into the Services Agreement dated
as of March 31, 1997 (the "Services Agreement") pursuant to which Xxxxxxx will
provide services to the Company in his capacity as Chairman of the Executive
Committee of the Board of Directors.
The Company wishes to grant to Xxxxxxx, as an inducement for Xxxxxxx to
enter into the Services Agreement, options to acquire capital stock of the
Company as set forth in this Agreement.
AGREEMENT
In consideration of the mutual covenants set forth in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
1. Definitions. The following terms, when used in this Agreement with
initial capital letters, will have the following meanings:
(a) "Acquisition Event" means (i) a merger or consolidation of
the Company with one or more other Persons, whether or not the Company is the
surviving corporation, (ii) a sale or other disposition of all or substantially
all of the assets of the Company pursuant to a plan that provides for the
liquidation of the Company, or (iii) an exchange by the holders of all of the
outstanding shares of Common Stock for securities issued by another Person, or
in whole or in part for cash or other property, pursuant to a plan of exchange
approved by the holders of a majority of such outstanding shares.
(b) "Board" means the board of directors of the Company.
(c) "Common Stock" means the common stock of the Company, par
value $0.001 per share.
(d) "Convertible Securities" means evidences of indebtedness,
shares of stock or other securities which are convertible into or exchangeable
for, with or without payment of additional consideration in cash or property,
additional shares of Common Stock, either immediately or upon the occurrence of
a specified date or a specified event.
1
2
(e) "Fair Market Value" means, as to any securities, the
Market Price of such securities, and, as to other property (including securities
that are not listed or admitted to trading on any national securities exchange,
quoted on the NMS (as defined below) or traded in the over-the- counter market),
the price at which a willing seller would sell and a willing buyer would buy
such property having full knowledge of the facts, in an arm's-length transaction
without time constraints, and without being under any compulsion to buy or sell.
For purposes of this Agreement, the Fair Market Value of any item will be
determined by agreement between the Company and Xxxxxxx or, if they cannot agree
on such Fair Market Value within 20 days after the need for such determination
arises, by an independent investment banking firm of nationally recognized
standing selected by Xxxxxxx in good faith and approved by the Company, which
approval will not be unreasonably withheld. The fees and expenses of any such
investment banking firm will be paid one-half by Xxxxxxx and one-half by the
Company.
(f) "Market Price" means, with respect to any securities on a
given date, the average of the Closing Prices for 10 consecutive Trading Days
ending on the Trading Day immediately preceding the date in question. As used
herein, "Closing Price" means the last reported sale price regular way or, in
case no such sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case as reported on the New York
Stock Exchange Composite Tape or, if such sale or sales, as applicable, are not
so reported, the reported last sales price regular way or, if no, such sale
takes place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the principal national securities exchange
on which such securities are listed or admitted to trading, or if not listed or
admitted to trading on any national securities exchange, on the National
Association of Securities Dealers Automated Quotations National Market System
(the "NMS") or, if not listed or admitted to trading on any national securities
exchange or quoted on the NMS, the average of the closing bid and asked prices
in the over-the-counter market as furnished by any New York Stock Exchange
member firm selected by Xxxxxxx for that purpose. "Trading Day" means each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on such exchange or in such market.
If such securities are not listed or admitted to trading on
any national securities exchange, quoted on the NMS or traded in the
over-the-counter market, the "Market Price" per share on any date will be deemed
to be the Fair Market Value thereof.
(g) "Person" means a human being or a corporation,
partnership, limited liability company, trust, unincorporated organization,
association or other entity.
(h) "Termination For Cause" means the termination of Xxxxxxx'x
services to the Company (i) based on a determination by the Board, made in good
faith and on a reasonable basis, that Xxxxxxx has engaged in conduct
constituting willful misconduct or gross negligence, which misconduct or
negligence will have resulted in material damage to the Company, or (ii) because
Xxxxxxx has been convicted of a felony or been adjudged by a court of competent
jurisdiction, without a right to further appeal, to have defrauded the Company.
2
3
2. Grant of Option. Effective March 31, 1997, the Company grants to
Xxxxxxx options (the "Options") to purchase from the Company 50,000 shares of
Common Stock (the "Shares"), at a purchase price of $2.875 per share (the
"Exercise Price"). The Options are issued under and are subject to the Unison
HealthCare Corporation 1995 Stock Option Plan, as revised (the "Plan"). The
Options are Nonqualified Stock Options under the Plan. The parties acknowledge
that the Plan provides a minimum level of rights of option holders, and that, as
permitted by Section 6(n) of the Plan, this Agreement provides additional and
more extensive rights to Xxxxxxx. To the extent that a court of competent
jurisdiction determines that terms of this Agreement are not permitted by the
terms of the Plan, the terms of the Plan will govern.
3. Exercise Term of Options. The Options may be exercised immediately,
in whole or in part, at any time and from time to time, prior to termination
pursuant to Section 4.
4. Termination. The Options will terminate on the earliest of:
(a) March 31, 2002;
(b) two years after the date Xxxxxxx ceases to provide
services to the Company for any reason other than death, permanent disability,
retirement or Termination For Cause;
(c) three years after the date Xxxxxxx ceases to provide
services to the Company because of death, permanent disability or retirement;
and
(d) 190 days after the date Xxxxxxx ceases to provide services
to the Company due to a Termination For Cause.
5. Restrictions on Transfer. The Options may not be transferred by
Xxxxxxx except as expressly provided in this Section, and any attempted transfer
in violation of this Section is void and of no force or effect. The Options may
be transferred in whole or in part at any time and from time to time to the
heirs or personal representatives of Xxxxxxx or to a trust for the benefit of
Xxxxxxx'x family members, provided that any such transferee agrees to be bound
by the provisions of this Agreement by executing a counterpart signature page to
this Agreement (each a "Permitted Transferee"). Where the context so requires, a
reference in this Agreement to "Xxxxxxx" will be deemed to include a reference
to a Permitted Transferee.
6. Manner of Exercise.
(a) Each Option will be exercisable by Xxxxxxx or a Permitted
Transferee by written notice to the Company, which notice will state the
election to exercise all or a specified number of the Options and be signed by
Xxxxxxx or such Permitted Transferee, as the case may be. Such notice will be
accompanied by payment of the full exercise price for the Options exercised: (i)
in cash or by cashier's check; (ii) at Xxxxxxx'x election, by delivery of shares
of Common Stock ("Delivered Stock"); or (iii) at Xxxxxxx'x election, by delivery
of a combination of cash and Delivered Stock. If payment is made in whole or in
part in Delivered Stock, each share of Delivered Stock will be deemed to have a
value equal to its
3
4
Market Price on the date of exercise. Notwithstanding the foregoing, the Company
may arrange for or cooperate with a broker-assisted cashless exercise of the
Options. The Company may also extend and maintain, or arrange for the extension
and maintenance of, credit to Xxxxxxx to finance the exercise of all or any part
of the Options.
(b) The Company will, within 10 days after receipt of such notice of
exercise and payment, issue and deliver to Xxxxxxx a certificate or certificates
representing the Shares issuable upon such exercise. Any liability for foreign,
federal, state or local taxes resulting from the exercise of, and the
disposition of the Shares issued pursuant to, the Options will be the sole
responsibility of Xxxxxxx (other than taxes in respect of income of the Company,
if any).
7. Registration Rights. Any Shares issued upon exercise of the Options
will be deemed to be "Registrable Securities" as defined in, and subject to, the
Registration Rights Agreement between the Company and Xxxxxxx dated as of
October 31, 1996.
8. Antidilution. The number of Shares issuable upon exercise, and the
Exercise Price, of the unexercised Options will be adjusted from time to time as
set forth in this Section.
(a) Stock Dividends, Subdivisions and Combinations. If at any
time the Company (i) declares a dividend in shares of Common Stock, (ii)
subdivides its outstanding shares of Common Stock into a larger number of shares
of Common Stock, (iii) combines its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issues any shares of its
capital stock by reclassification of the Common Stock, then the number and kind
of Shares issuable upon exercise of the unexercised Options immediately after
the happening of any such event will be adjusted to the number of shares of
Common Stock which Xxxxxxx would have been entitled to receive pursuant to such
event had he exercised all of the unexercised Options immediately prior to such
event. The Exercise Price will then be adjusted so that the aggregate Exercise
Price of the unexercised Options will not be affected by such adjustment to the
number or kind of Shares.
(b) Adjustment of Exercise Price upon Issuance of Common
Stock. If at any time the Company issues any shares of Common Stock for a
consideration per share (i) less than the Exercise Price in effect immediately
prior to the time of such issuance or (ii) less than the Market Price of Common
Stock at the time of such issuance, except for issuances of the Shares pursuant
to the Options, then the Exercise Price will be adjusted in accordance with the
following formula:
N P
---
C'= CO + M
-------
O + N
where: C' = the adjusted Conversion Price
C = the current Conversion Price
O = the number of shares of Common Stock outstanding on the date
of such issuance
N = the number of additional shares of Common Stock issued
4
5
P = the issue price per share of the additional shares of Common
Stock
M = the Market Price per share of Common Stock on the date of
such issuance
(c) Issuance of Rights or Options. (i) In the event the
Company grants (whether directly or by assumption in a merger or otherwise) any
rights to subscribe for or to purchase, or any options for the purchase of,
Common Stock or any Convertible Securities, whether or not such rights or
options or the right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such rights or options or upon conversion or
exchange of such Convertible Securities (determined as provided below) is less
than the Exercise Price in effect immediately prior to the time of the granting
of such rights or options (or less than the Market Price determined as of the
date of granting such rights or options, as the case may be), then the total
maximum number of shares of Common Stock issuable upon the exercise of such
rights or options or upon conversion or exchange of the total maximum amount of
such Convertible Securities issuable upon the exercise of such rights or options
will (as of the date of granting of such rights or options) be deemed to be
outstanding and to have been issued for such price per share. Except as provided
in clause (iii) of this subsection, no further adjustments of any Exercise Price
will be made upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such rights or options or upon the actual issue of
such Common Stock upon conversion or exchange of such Convertible Securities.
For the purposes of this clause (i), the price per share for which Common Stock
is issuable upon the exercise of any such rights or options or upon conversion
or exchange of any such Convertible Securities will be determined by dividing
(A) the total amount, if any, received or receivable by the Company as
consideration for the granting of such rights or options, plus the minimum
aggregate amount of additional consideration payable to the Company upon the
exercise of all such rights or options, plus, in the case of such rights or
options which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by (B) the
total maximum number of shares of Common Stock issuable upon the exercise of
such rights or options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such rights or options.
(ii) Issuance of Convertible Securities. In the event
the Company issues (whether directly or by assumption in a merger or otherwise)
any Convertible Securities, whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price per share for which Common
Stock is issuable upon conversion or exchange of such Convertible Securities
(determined as provided below) is less than the Exercise Price in effect
immediately prior to the time of such issue or sale (or less than the Market
Price, determined as of the date of such issue or sale of such Convertible
Securities, as the case may be), then the total maximum number of shares of
Common Stock issuable upon conversion or exchange of all such Convertible
Securities will (as of the date of the issue or sale of such Convertible
Securities) be deemed to be outstanding and to have been issued for such price
per share, provided that (1) except as provided in clause (iii) of this
subsection, no further adjustments of any Exercise Price will be made upon the
actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities, and (2) if any such issue or sale of such Convertible
Securities is made upon exercise of any rights to subscribe for or to purchase
or
5
6
any option to purchase any such Convertible Securities for which adjustments of
any Exercise Price have been or are to be made pursuant to other provisions of
this Section, no further adjustment of any Exercise Price will be made by reason
of such issue or sale. For the purposes of this clause (ii), the price per share
for which Common Stock is issuable upon conversion or exchange of Convertible
Securities will be determined by dividing (A) the total amount received or
receivable by the Company as consideration for the issue or sale of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (B) the total maximum number of shares of Common Stock issuable upon
the conversion or exchange of all such Convertible Securities.
(iii) Change in Option Price or Conversion Rate. If
the purchase price provided for in any rights or options referred to in clause
(i) above, or the additional consideration, if any, payable upon the conversion
or exchange of Convertible Securities referred to in clause (i) or (ii) above,
or the rate at which any Convertible Securities referred to in clause (i) or
(ii) above are convertible into or exchangeable for Common Stock, changes (other
than under or by reason of provisions designed to protect against dilution),
then the Exercise Price in effect at the time of such event will be readjusted
to the Exercise Price that would have been in effect at such time had such
rights, options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as the case
may be, at the time initially granted, issued or sold; and on the expiration of
any such option or right or the termination of any such right to convert of
exchange such Convertible Securities, the Exercise Price then in effect will be
increased to the Exercise Price that would have been in effect at the time of
such expiration or termination had such right, option or Convertible Security,
to the extent outstanding immediately prior to such expiration or termination,
never been issued, and the Common Stock issuable thereunder will no longer be
deemed to be outstanding. If the purchase price provided for in any such right
or option referred to in clause (i) above or the rate at which any Convertible
Securities referred to in clause (i) or (ii) above are convertible into or
exchangeable for Common Stock, decreases at any time under or by reason of
provisions with respect thereto designed to protect against dilution, then in
case of the delivery of Common Stock upon the exercise of any such right or
option or upon conversion or exchange of any such Convertible Security, the
Exercise Price then in effect will be adjusted to such amount as would have
resulted had such right, option or Convertible Security never been issued as to
such Common Stock and had adjustments been made upon such issuance of Common
Stock, but only if as a result of such adjustment the Exercise Price then in
effect is decreased.
(iv) Consideration for Common Stock or Convertible
Securities. In case any shares of Common Stock or Convertible Securities or any
rights or options to purchase any Common Stock or Convertible Securities are
issued or sold for cash, the consideration received therefor will be deemed to
be the amount received by the Company therefor, without deduction therefrom of
any expenses incurred. In case any shares of Common Stock or Convertible
Securities or any rights or options to purchase any such Common Stock or
Convertible Securities are issued or sold for a consideration other than cash or
securities, the amount of the consideration other than cash received by the
Company will be deemed to be the Fair Market Value of such consideration without
deduction of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Company in connection
6
7
therewith. In case any shares of Common Stock or Convertible Securities or any
rights or options to purchase such shares of Common Stock or Convertible
Securities are issued in connection with any merger or consolidation in which
the Company is the surviving corporation (other than any consolidation or merger
in which the previously outstanding shares of Common Stock are changed into or
exchanged for the stock or other securities of another corporation), the amount
of consideration therefor will be deemed to be the Fair Market Value of such
portion of the assets and business of the non-surviving corporation as the Board
may determine to be attributable to such shares of Common Stock, Convertible
Securities, rights or options, as the case may be. In the event of any
consolidation or merger of the Company in which the Company is not the surviving
corporation or in which the previously outstanding shares of Common Stock are
changed into or exchanged for the stock or other securities of another
corporation or in the event of any sale of all or substantially all of the
assets of the Company for stock or other securities of any corporation, the
Company will be deemed to have issued a number of shares of its Common Stock for
stock or securities or other property of the other corporation computed on the
basis of the actual exchange ratio on which the transaction was predicated and
for a consideration equal to the Fair Market Value on the date of such
transaction of all such stock or securities or other property of the other
corporation, and if any such calculation results in adjustment of the Exercise
Price, the determination of the number of shares of Common Stock issuable upon
exercise of the Options immediately prior to such merger, consolidation or sale,
for purposes of Section 9, will be made after giving effect to such adjustment
of the Exercise Price.
(d) Adjustment for Certain Dividends or Distributions. If at
any time the Company, by dividend or otherwise, distributes to the holders of
its Common Stock cash or assets in the form of non-cash consideration
(including, without limitation, evidences of its or its affiliates' indebtedness
or securities and excluding distributions for which adjustments are required to
be made pursuant to other provisions of this Section), Xxxxxxx will, upon
exercise of the Options after the record date for such distribution or, in the
absence of a record date, after the date of such distribution, receive, in
addition to the Shares issuable upon such exercise and in lieu of any adjustment
pursuant to subsection (d), the amount of such assets (or, at Xxxxxxx'x option,
cash in an amount equal to the Fair Market Value thereof) which would have been
distributed to Xxxxxxx if Xxxxxxx had exercised the Options immediately prior to
the record date for such distribution or, in the absence of a record date,
immediately prior to the date fixed for such distribution.
(e) Adjustment of Shares. Whenever the Exercise Price is
adjusted pursuant to this Section (other than pursuant to subsection (a)), the
number of Shares issuable upon exercise of the unexercised Options will be
adjusted so that the aggregate Exercise Price of the unexercised Options will
not be affected by such adjustment to the Exercise Price.
(f) Minimum Adjustment of Exercise Price. Regardless of
anything to the contrary in this Section, no adjustment of the Exercise Price
will be made in an amount which would result in an adjustment of less than 1% of
the Exercise Price, and any such lesser adjustment will be carried forward and
will be made at the time of, and together with, the next subsequent adjustment
that, together with any adjustments so carried forward, amount to an adjustment
of at least 1% of the Exercise Price.
7
8
(g) Other Adjustments to Exercise Price. The Company may make
such reductions in the Exercise Price, in addition to those otherwise required
by this Section, as it considers to be advisable in order that any event treated
for federal income tax purposes as a dividend of stock or stock rights will not
be taxable to the recipients.
(h) Certain Events. If any event occurs as to which in the
reasonable opinion of the Company, in good faith, the provisions of this Section
are not strictly applicable but the lack of any adjustment would not fairly
protect the rights of Xxxxxxx in accordance with the basic intent and principles
of such provisions, then the Company (with the consent of Xxxxxxx) will in good
faith make an adjustment to the application of such provisions in accordance
with the basic intent and principles established in the other provisions of this
Section, so as to preserve the rights of Xxxxxxx.
(i) Successive Adjustments. Any adjustments required by this
Section will be made, to the extent applicable, successively whenever any event
described in this Section will occur.
(j) Notice of Adjustment. Whenever the Exercise Price is
adjusted pursuant to this Section, the Company will promptly (but in no event
later than 10 calendar days thereafter) compute the adjusted Exercise Price and
cause a notice setting forth such adjusted Exercise Price to be mailed to
Xxxxxxx and will cause a certified copy thereof to be mailed to the transfer
agent for the Common Stock (the "Transfer Agent"), if such Transfer Agent is
other than the Company. The Company will, upon the request in writing of
Xxxxxxx, retain a nationally recognized firm of independent public accountants
selected by the Board to make any computation required by this clause, and a
certificate signed by such firm will be conclusive evidence of the correctness
of such adjustment, which will be binding on Xxxxxxx and the Company. The
failure to give the notice required in this clause or any defect therein will
not affect the legality or validity of the event causing the adjustment of the
Exercise Price or the vote thereon or any other action taken in connection
therewith.
9. Substitution or Cancellation Upon Acquisition. In connection with
any Acquisition Event, Xxxxxxx will be required to elect to make a final
settlement for any unexercised Options in any one or more of the following
manners:
(i) if the consideration to be received by holders of Common
Stock in the Acquisition Event consists of securities, surrender such
unexercised Options for cancellation in exchange for the payment in such
securities in an amount the aggregate Market Price of which is equal to the
excess of the aggregate Market Price of the securities which would be issued to
the holder of the Shares issuable upon exercise of such Options in connection
with such Acquisition Event over the aggregate exercise price of such Options;
(ii) surrender such unexercised Options for cancellation in
exchange for the payment in cash of an amount not less than the excess of (A)
the Fair Market Value of the consideration that would be received by the holder
of the Shares issuable on exercise of such Options pursuant to the terms of the
Acquisition Event minus, if the Acquisition Event is effected as a sale of
assets, the liabilities of the Company and its subsidiaries attributable to
8
9
such assets that are not assumed in such transaction allocated to such Shares on
a pro rata basis, as determined by the Board in its reasonable discretion, over
(B) the aggregate Exercise Price of such Options; or
(iii) exercise such Options prior to the Acquisition Event so
that Xxxxxxx will be entitled, with respect to the Shares acquired, to
participate in the Acquisition Event as a holder of Common Stock.
After an election by Xxxxxxx pursuant to this Section, such Options may
be canceled by the Company upon the occurrence of the Acquisition Event and
thereafter Xxxxxxx will be entitled only to receive the appropriate benefit
pursuant to clause (i), (ii) or (iii) above, whichever may be applicable. The
Board will in good faith separately value the Company if this Section is to be
applied in a transaction constituting an Acquisition Event effected as part of a
larger transaction in which no separate value is allocated to the Company.
The provisions of this Section are not intended to be exclusive of any
other arrangements that the Board may approve with the consent of Xxxxxxx for
settlement of any unexercised Options in connection with an Acquisition Event or
otherwise.
10. Valuation and Withholding. If required by applicable law, the
Company will, at the time of issuance of any Shares pursuant to this Agreement,
provide Xxxxxxx with a statement of valuation of the Shares issued. The Company
will be entitled to withhold amounts from Xxxxxxx'x compensation or otherwise to
receive an amount adequate to provide for any applicable federal, state and
local income taxes (or to require Xxxxxxx to remit such amount as a condition of
issuance).
11. Rights of Option Holder. Xxxxxxx will have no rights as a
stockholder with respect to the Shares until the exercise of the Options and
payment of the full purchase price therefor in accordance with the terms of this
Agreement.
12. Fractional Shares. No fractional shares will be issued upon
exercise of any of the Options. The Company will pay to Xxxxxxx, in cash at the
time of issuance and delivery of the certificate or certificates representing
the Shares, the amount derived by multiplying any fraction of a share otherwise
issuable upon the exercise of such Options by the Market Price of a share of
Common Stock.
13. Restrictive Legend. Unless the issuance of the Shares has been
registered under the Securities Act, upon exercise of the Options and the
issuance of the Shares (in whole or in part), the Company will instruct its
transfer agent to enter stop transfer orders with respect to Shares, and all
certificates representing the Shares will bear substantially the following
legend:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933, as amended,
or any state securities laws, and may not be sold, offered for
sale, pledged, assigned, transferred or otherwise disposed of
unless registered under that Act and any applicable state
securities laws or an
9
10
opinion of counsel to the Company is obtained stating that
such disposition is in compliance with an available exemption
from such registration."
14. Representations and Warranties of the Company. The Company
represents and warrants to Xxxxxxx that, as of the date of this Agreement:
(a) Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation and has all necessary corporate power and authority
to conduct its business as presently conducted and to enter into and perform its
obligations under this Agreement.
(b) Capitalization of the Company. The authorized capital
stock of the Company consists of 25,000,000 shares of Common Stock and 1,000,000
shares of preferred stock, each par value $0.001 per share. The Company will
reserve a sufficient number of authorized but unissued shares of Common Stock
(or, if required, other securities) for issuance upon exercise of any of the
Options.
(c) Authority, Etc. The execution, delivery and performance of
this Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action.
This Agreement has been duly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforceability may be
affected by bankruptcy, insolvency or other laws affecting the rights of
creditors generally and by general equitable principles.
(d) Shares. All Shares issued upon exercise of the Options,
when issued in accordance with this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable and will be free and clear of any security
interest, pledge or other encumbrance.
15. Investment Intent. Xxxxxxx represents and warrants to the Company
that he is acquiring the Options and will acquire any Shares upon exercise of
the Options for his own account for investment purposes only and not with a view
to any distribution thereof.
16. Xxxx-Xxxxx-Xxxxxx Compliance. If in the reasonable judgment of
Xxxxxxx or the Company, Xxxxxxx'x holding of Common Stock or other securities of
the Company or his acquisition of Common Stock or other securities of the
Company upon exercise of the Options or any other security convertible into, or
any warrant, option or other right to acquire, Common Stock or other securities
of the Company (the Options and such other convertible securities, warrants,
options and rights being referred to individually as a "Derivative Security" and
collectively as "Derivative Securities") would require a filing under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), the Company and Xxxxxxx each will take such actions as may be required
promptly to comply with the requirements of the HSR Act relating to the filing
and furnishing of information (an "HSR Report") to the Federal Trade Commission
(the "FTC") and the Antitrust Division of the Department of Justice (the "DOJ"),
such actions to include (i) preparing and cooperating with each other in
preparing the HSR Report to be filed by or on behalf of each of them so as to
avoid errors or inconsistencies between their HSR Reports in the description of
the reported transaction and
10
11
to permit the filing of their HSR Reports in a timely fashion, (ii) complying
with any request for additional documents or information made by the FTC or the
DOJ or by any court and assisting the other in so complying and (iii) causing
all persons or entities which are part of the same "person" (as defined for
purposes of the HSR Act) as such party to cooperate and assist in such
compliance. Xxxxxxx and the Company each will pay any costs that it incurs in
complying with the obligations set forth in this Section, except that each will
bear one-half of any fee payable in connection with the filing of an HSR Report.
It will be a condition precedent to the effectiveness of the conversion or
exercise of any Derivative Security held by Xxxxxxx or any of his successors or
assigns that either (i) no filing under the HSR Act by the holder of such
Derivative Security would be required in connection with his acquisition of
Common Stock or other voting securities upon such conversion or exercise or (ii)
any applicable waiting period under the HSR Act has expired or been terminated.
If an acquisition of securities of the Company by Xxxxxxx upon conversion or
exercise of a Derivative Security requires the filing of an HSR Report, then any
time period within which Xxxxxxx is required to convert or exercise such
Derivative Security will be deemed extended, up to a maximum of 90 days, to
permit compliance with the HSR Act, including filing of the requisite HSR
Reports and expiration or termination of the applicable waiting period. If the
waiting period has not so expired or been terminated prior to the end of such
period of extension and of the period within which Xxxxxxx is required to
convert or exercise such Derivative Security or if Xxxxxxx determines to
withdraw his HSR Report, then the Company will use its best efforts to afford to
Xxxxxxx the benefits intended to be provided by the Derivative Security by (i)
granting to Xxxxxxx the right to acquire other securities of the Company having
the same rights, privileges and preferences as the securities originally to be
acquired, except that such other securities will not possess voting rights, on
the same terms as the securities originally to be acquired or (ii) if such
replacement right cannot be granted, providing to Xxxxxxx such other right as
may reasonably represent the value of the conversion or exercise right required
to be foregone.
If Xxxxxxx, in his sole opinion, considers a request from a
governmental agency for additional data and information in connection with the
HSR Act to be unduly burdensome, Xxxxxxx may withdraw his HSR Report and rescind
his conversion or exercise of the affected Derivative Security, in which case
his rights will be the same as existed immediately before such attempted
conversion or exercise and, in addition, Xxxxxxx will have the rights described
in the last sentence of the preceding paragraph.
The provisions of this Section will (i) survive the exercise of the
Options, (ii) apply to any Derivative Security now held by Xxxxxxx and, absent
any provision expressly to the contrary set forth therein, to each Derivative
Security hereafter acquired by Xxxxxxx and (iii) inure to the benefit of, and be
binding on, Xxxxxxx, the Company and their respective successors and assigns,
including, in the case of Xxxxxxx, any transferee of a Derivative Security.
17. Miscellaneous Provisions.
(a) Execution in Counterparts. This Agreement may be executed
in two or more counterparts, each of which will be deemed an original, and all
of which taken together will constitute one and the same agreement.
11
12
(b) Notices. All notices and other communications under this
Agreement will be in writing and will be deemed to have been duly given when:
(i) personally delivered (including delivery by Federal Express or other
nationally recognized overnight courier) or (ii) sent by telecopy, receipt
confirmed, as follows:
If to the Company, to:
Unison HealthCare Corporation
0000 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
If to Xxxxxxx, to:
Xxxxx X. Xxxxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx L.L.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
or to such other addresses and numbers as may be provided by the parties from
time to time by notice.
(c) Amendment. No provision of this Agreement may be modified,
amended, waived or discharged in any manner except by a written instrument
executed by each of the parties.
(d) Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter of this Agreement,
and supersedes all prior agreements and understandings of the parties, oral or
written, with respect to the subject matter of this Agreement.
12
13
(e) Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware without reference
to conflicts of law provisions.
(f) Headings. The headings contained in this Agreement are for
convenience of reference only and will not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
(g) Binding Effect; Successors. This Agreement will inure to
the benefit of, and be binding upon, the parties and their respective heirs,
legal representatives, successors and permitted assigns.
(h) Waiver. The failure or delay of either party at any time
to enforce any provision of this Agreement will not be deemed to be a waiver of
any such provision or in any way to affect the validity of any provision of this
Agreement or the right of either party thereafter to enforce any provision of
this Agreement. No waiver of any breach of any provision of this Agreement will
be effective unless in writing executed by the party against whom or which
enforcement of such waiver is sought and no waiver of any such breach will be
construed or deemed to be a waiver of any other or subsequent breach.
(i) Severability. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, is found by a court
of competent jurisdiction to be unenforceable for any reason, such provision may
be modified or severed from this Agreement to the extent necessary to make such
provision enforceable against such person or in such circumstance. Neither the
unenforceability of such provision nor the modification or severance of such
provision will affect (i) the enforceability of any other provision of this
Agreement or (ii) the enforceability of such provision against any Person or in
any circumstance other than those against or in which such provision is found to
be unenforceable.
IN WITNESS WHEREOF, the parties have executed this Option Agreement as
of the date first written above.
UNISON HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: EVP/COO
-------------------------------
13
