AMENDED AND RESTATED PUT/CALL AGREEMENT
Among
The Cypress Group L.L.C.,
TPG Partners II, L.P.,
Nazem, Inc.,
The Other Signatories Hereto
And
Genesis Health Ventures, Inc.
Dated
November 15, 1999
AMENDED AND RESTATED PUT/CALL AGREEMENT
AMENDED and RESTATED PUT/CALL AGREEMENT, dated as of November 15, 1999
(this "Agreement"), among The Cypress Group L.L.C., a Delaware limited liability
company ("Cypress"), TPG Partners II, L.P., a Delaware limited partnership
("TPG"), Nazem, Inc., a Delaware corporation ("Nazem" and, together with Cypress
and TPG, the "Sponsors"), the other signatories hereto, and Genesis Health
Ventures, Inc., a Pennsylvania corporation ("Genesis").
WITNESSETH
WHEREAS, Genesis and the Sponsors or their affiliated investment funds
own all of the issued and outstanding common stock, par value $.01 per share
(the "Common Stock") of Genesis ElderCare Corp., a Delaware corporation
("Parent").
WHEREAS, on October 9, 1997, Genesis and the Sponsors entered into a
Put/Call Agreement (the "Original Put/Call Agreement") related to the Common
Stock.
WHEREAS, the parties hereto desire to amend and restate the Original
Put/Call Agreement.
NOW, THEREFORE, in consideration of the mutual covenant and conditions
as hereinafter set forth, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. Capitalized terms used
herein and not otherwise defined herein shall have the following meanings:
"Affiliate" of any Person means any other Person that directly or
indirectly controls, is controlled by, or is under common control with, such
Person.
"Agreement" is defined in the preamble hereto.
"Business Day" means any day other than a Saturday, Sun day or other
day on which commercial banks in the City of New York are authorized or required
by laws to close.
"Call Option" means the collective reference to the options granted
pursuant to Section 2.1.
"Call Optionee" means each Person who is or becomes a signatory hereto
if such Person owns Common Stock subject to the Call Option on the Notification
Date.
"Call Option Exercise Price" is defined in Section 2.1(a).
"Common Stock" is defined in the recitals hereto.
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"Common Stock Transferee" means each Person other than an Affiliate of
Genesis who acquires shares of Common Stock from a Sponsor or an Affiliate of a
Sponsor or any other Common Stock Transferee.
"Cypress" is defined in the preamble hereto.
"Exercise Date" means the date specified for the closing of the
exercise of the Call Option, as set forth in a notice given pursuant to Section
2.1(b).
"Genesis" is defined in the preamble hereto.
"Nazem" is defined in the preamble hereto.
"Notification Date" means the date notification is given by Genesis
under the Call Option in accordance with Section 2.1(b).
"Parent" is defined in the recitals hereto.
"Person" means any individual, corporation, partnership, joint venture,
trust, business, unincorporated organization or other entity.
"Sponsors" is defined in the preamble hereto.
"Stockholders Agreement" means the Stockholders Agreement, dated
October 9, 1997, among Cypress, Genesis, Nazem, Parent, and TPG, as amended.
"TPG" is defined in the preamble hereto.
ARTICLE II
CALL OPTION
Section 2.1 Call Option
(a) On the terms and subject to the conditions set forth herein, each
Sponsor, each Affiliate of a Sponsor owning Common Stock, and each Common Stock
Transferee hereby grants to Genesis an irrevocable option exercisable beginning
on the date hereof and ending on the tenth anniversary of the date hereof, to
purchase (and, upon exercise of such Call Option in accordance herewith, each
such Person irrevocably agrees to sell to Genesis), all, but not less than all,
of the Common Stock owned by such Person on the Notification Date; provided,
that Genesis shall be entitled to exercise the Call Option with respect to
shares owned by any Call Optionee on the Notification Date only if Genesis shall
exercise the Call Option with respect to shares of Common Stock owned by each
other Call Optionee on the Notification Date. The aggregate purchase price with
respect to all the shares of Common Stock subject to the Call Option shall be
equal to Two Million Dollars, subject to adjustment pursuant to Section 5.1(c)
(the "Call Option Exercise Price"). The Call Option Exercise Price shall be paid
in cash. The consideration to be paid for each share of Common Stock shall equal
the Call Option Exercise Price
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divided by the aggregate number of shares of Common Stock subject to the Call
Option on the Exercise Date.
(b) Genesis shall give each Call Optionee written notice of exercise of
the Call Option no less than 60 days prior to the Business Day specified in such
notice for exercise of the Call Option. A notice of exercise of the Call Option
shall irrevocably commit Genesis and each Call Optionee to the purchase and sale
of the Common Stock in accordance with the Call Option. The closing of the Call
Option shall take place as provided in Article III.
ARTICLE III
CLOSING
Section 3.1 Payment of the Option Price. The closing of the purchase
of Common Stock pursuant to the exercise of the Call Option as provided in
Section 2.1 shall take place on the Exercise Date. At the closing, Genesis shall
deliver cash in immediately available funds to, or upon the order of, each Call
Optionee against delivery of certificates representing the shares of Common
Stock sold by such Call Optionee, duly endorsed in blank or accompanied by duly
executed stock powers.
Section 3.2 Time and Place of Closing. The closing of the purchase of
the Common Stock shall be held at the offices of Blank Rome Comisky & ▇▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ on the Exercise Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Parties. Each of
Cypress, TPG, Nazem and Genesis represents and warrants as follows:
(a) This Agreement has been duly executed and delivered by such Person
and constitutes the legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with the terms hereof except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally and by
general principles of equity; and
(b) The execution and delivery of this Agreement by such Person does
not, and the performance by it and its Affiliates of its and their obligations
under this Agreement will not, violate, conflict with or constitute a breach of,
or a default under, any material agreement, indenture or instrument to which
such Person is a party or which is binding on such Person, and will not result
in the creation of any lien on, or security interest in, any of the assets of
such Person.
Section 4.2 Representations and Warranties of Genesis. Genesis
represents and warrants to the Sponsors as follows:
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(a) No consent, approval or authorization of, or filing, registration
or qualification with, any court, governmental, administrative or judicial
authority or regulatory body is required on the part of Genesis for the
execution, delivery and performance of this Agreement.
(b) As of the Exercise Date there will be no action or proceeding or
investigation pending or, to the best knowledge of Genesis, threatened against
Genesis or any of its subsidiaries which, if determined adversely could
adversely affect the consummation of the transactions contemplated by this
Agreement. There are no actions or proceedings challenging or seeking to
restrain, materially limit or prohibit the consummation of the transactions
contemplated hereby.
(c) No state takeover statute or similar statute or regulation applies,
purports to apply or will, following the occurrence of any event contemplated
hereby or otherwise, apply to the transactions contemplated by this Agreement.
Section 4.3 Representations and Warranties of the Sponsors. Each of the
Sponsors represents and warrants to Genesis as follows:
(a) On the Exercise Date, such Person and its Affiliates, if any, owing
Common Stock will have good and valid title to the shares of Common Stock owned
by it, free and clear of all liens, encumbrances, equities and claims (other
than the Call Option).
(b) No consent, approval or authorization of, or filing, registration
or qualification with, any court, governmental, administrative or judicial
authority or regulatory body will be, as of the Exercise Date, required on the
part of such Person or any of its Affiliates owning Common Stock for the valid
sale and delivery of the Common Stock then owned by such Person or any of its
Affiliates to Genesis as contemplated herein.
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.1 Further Assurances.
(a) Subject to the terms and conditions hereof, Genesis and each Person
then subject to the Call Option agrees to use its best efforts to take, or cause
to be taken, all action and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and make
effective, reasonably promptly the transactions contemplated by this Agreement.
(b) Promptly following the Notification Date, Genesis and each Person
then subject to the Call Option shall prepare and file all applications and
other notices required in connection with, and use their best efforts to obtain
promptly and comply with all conditions contained in, all necessary regulatory
approvals and any other consent, approval or other actions by, or notice to or
registration or filing with, any governmental or administrative agency or
authority required or necessary to be made, obtained or complied with, as the
case may be, by any such Person in connection with the performance of the
transactions contemplated by this Agreement, including without limitation any
premerger notifications pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇"). Genesis agrees (i) to enter into with the Federal
Trade Commission and/or the Department of Justice such decrees,
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consent orders and/or hold separate undertakings, and (ii) to effectuate any
divestitures, in each case involving assets or operations of either Parent or
Genesis or its Affiliates or both, as may be necessary in order to enable
Genesis to purchase, as soon as practicable following the Notification Date and
in any event no later than the Exercise Date, the Common Stock subject to the
Call Option.
(c) Genesis agrees to pay the Call Optionees' reasonable expenses
(including attorney fees) in connection with the transactions contemplated by
this agreement. Genesis shall be permitted to deduct, up to a maximum aggregate
amount of $200,000, the reasonable expenses paid pursuant to this Section 5.1(c)
from the Call Option Exercise Price upon exercise of the Call.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered in person or by
telecopier (with a confirmed receipt thereof), and on the next Business Day when
sent by overnight courier service, to any Common Stock Transferee at the address
of such Person, set forth on the Joinder hereto executed by such Person (the
form of which is attached hereto as Exhibit "A") pursuant to the Stockholders
Agreement or to Cypress, TPG, Genesis or Nazem at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Cypress, to:
The Cypress Group L.L.C.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) if to TPG, to:
TPG Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esquire
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to Genesis, to:
Genesis Health Ventures, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Blank Rome ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esquire
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(d) if to Nazem, to:
Nazem, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Bartoma Corporation, N.V.
▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ Antilles
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: ▇▇▇▇-▇▇▇-▇▇-▇▇
Section 6.2 Severability. In the event any provision hereof is held
void or unenforceable by any court, then such provision shall be severable and
shall not affect the remaining provisions hereof.
Section 6.3 Entire Agreement. This Agreement (including the documents
and instruments referred to herein) embody the entire agreement and
understanding of the parties hereto in respect of the subject matter hereof and
thereof and supersede all prior agreements and understandings, both written and
oral, among the parties, or between any of them, with respect to the subject
matter hereof and thereof.
Section 6.4 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by a written agreement signed by Genesis and each
other Person then subject to the Call Option. Any waiver or failure to insist
upon strict compliance with any obligation, agreement or condition herein shall
not operate as a waiver of, or estoppel with respect to, any such subsequent or
other failure.
Section 6.5 Assignment; Binding on Transferees. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors. Cypress and TPG may assign any of their rights
and obligations hereunder to any of their respective Affiliates owning capital
stock of Parent. Neither Genesis nor Nazem may assign any of its rights and
obligations hereunder to any Person without the written consent of Cypress and
TPG, acting jointly, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing provision, Genesis may assign any of its rights
and obligations hereunder to any of its Affiliates and may assign its rights
hereunder pursuant to any security agreement or pledge agreement entered into
for the benefit of its senior lenders without the written consent of Cypress and
TPG.
Section 6.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE CHOICE OF LAW PRINCIPLES THEREOF.
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Section 6.7 Headings. This article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 6.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.9 Specific Performance; Remedies. The parties hereto each
acknowledge that, in view of the uniqueness of the transactions contemplated
hereby, the other parties would not have an adequate remedy at law for money
damages if this Agreement has not been performed in accordance with its terms.
Each party therefore agrees that the other parties shall be entitled to specific
performance of the terms hereof. Any such remedy shall be in addition to any
other remedy that may be available at law or in equity.
Section 6.10 Submission to Jurisdiction; Waivers. Each of the parties
hereto hereby irrevocably submits in any legal action or proceeding relating to
or arising out of this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the jurisdiction of the United States District
Court for the Southern District of New York, and appellate courts thereof. Each
of the parties hereto further: (i) consent that any such action or proceeding
may be brought in such court and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in such court or
that such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same; (ii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
such party at its address set forth in Section 6.1 or at such other address of
which such party shall have given notice pursuant thereto; and (iii) agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right to ▇▇▇ in any other
jurisdiction.
Section 6.11 WAIVERS OF ANY JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
Section 6.12 SUBORDINATION. THE RIGHTS OF THE SPONSORS, THE AFFILIATES
OF THE SPONSORS EXECUTING THIS AGREEMENT AND THE COMMON STOCK TRANSFEREES (THE
"SUBORDINATED PARTIES") HEREUNDER ARE SUBORDINATED AND LIMITED AS PROVIDED IN
THE STOCKHOLDERS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE PAYMENT
OBLIGATIONS OF GENESIS UNDER THIS AGREEMENT ARE EXPRESSLY SUBORDINATE AND JUNIOR
IN RIGHT OF PAYMENT TO THE SENIOR OBLIGATIONS (AS SUCH TERM IS DEFINED IN THE
STOCKHOLDERS AGREEMENT). THE STOCKHOLDERS
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AGREEMENT IS AND SHALL BE BINDING UPON EACH OF THE SUBORDINATED
PARTIES AND EACH ASSIGNEE OF ANY OF THE RIGHTS OF THE SUBORDINATED
PARTIES.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
THE CYPRESS GROUP L.L.C.
By:
------------------------
Name:
----------------------
Title:
----------------------
TPG PARTNERS II, L.P.
By: TPG GenPar II, L.P.
By: TPG Advisors II, Inc.
By:
------------------------
Name:
----------------------
Title:
----------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
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NAZEM, INC.
By:
------------------------
Name:
----------------------
Title:
----------------------
GENESIS HEALTH VENTURES, INC.
By:
------------------------
Name:
----------------------
Title:
----------------------
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The foregoing provisions of this Agreement applicable to Affiliates of
Sponsors owning Common Stock shall be binding upon and inure to the benefit of
the undersigned.
Affiliates of The Cypress Group L.L.C.
CYPRESS MERCHANT BANKING PARTNERS L.P.
By: Cypress Associates L.P.
By: The Cypress Group L.L.C.
By:
------------------------
Name:
----------------------
Title:
----------------------
CYPRESS OFFSHORE PARTNERS L.P.
By: Cypress Associates L.P.
By: The Cypress Group L.L.C.
By:
------------------------
Name:
----------------------
Title:
----------------------
Affiliates of TPG Partners II, L.P.
TPG PARALLEL II, L.P.
By: TPG GenPar II, L.P.
By: TPG Advisors II, Inc.
By:
------------------------
Name:
----------------------
Title:
----------------------
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TPG INVESTORS II, L.P.
By: TPG GenPar II, L.P.
By: TPG Advisors II, Inc.
By:
------------------------
Name:
----------------------
Title:
----------------------
TPG MC COINVESTMENT L.P.
By: TPG GenPar II, L.P.
By: TPG Advisors II, Inc.
By:
------------------------
Name:
----------------------
Title:
----------------------
Affiliate of Nazem
Genesis ElderCare Portfolio K, LP
By: Healthworth Associates I, L.L.C.
By:
------------------------
Name:
----------------------
Title:
----------------------
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EXHIBIT A
Joinder
The undersigned hereby agrees that the provisions of the Amended and
Restated Put/Call Agreement attached hereto applicable to Common Stock
Transferees, Call Optionees or Persons subject to the Call Option shall be
binding on, and inure to the benefit of, the undersigned in accordance with the
terms thereof.
The address for notices or other communications to the undersigned
under the Amended and Restated Put/Call Agreement is:
[ ]
[ ]
[ ]
Attention:
Telecopier:
[ ]
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Title:
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