Exhibit 10.1
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT ("Agreement") made effective this 14th day of Sept.,
2004, by and among LOUISIANA HEALTH CARE GROUP, LLC ("LHCG"), LHC GROUP, LLC
("LHC Group") and BETA HOME CARE, INC. ("Beta"). LHCG, LHC Group and Beta are
referred to, collectively, herein as the "Parties". Xxxxxxxxxxx Xxxxxxx
("Xxxxxxx") and Xxxx Xxxx ("Xxxx") also join in this Agreement for the purposes
of acknowledging and agreeing to the actions of Beta.
RECITALS
The Parties are the sole members of Acadian Home Health Care Services,
LLC ("Acadian"), each owning the membership interest percentage ("Membership
Interest") opposite their name on Schedule A attached hereto.
Xxxxxxx and Xxxx are the sole shareholders of Beta.
Pursuant to the terms of a written operating agreement effective
January 1, 2004 by and among the Parties ("Operating Agreement") and
acknowledged to be the current operating agreement of Acadian (a copy of which
is attached as Exhibit I), Beta has an option to convert its Membership
Interest in Acadian into equity in LHC Group (the "Conversion Right") upon the
occurrence of certain triggering events, including, but not limited to the
closing of a qualifying initial public offering involving the equity of LHC
Group.
The Parties wish to enter into this Agreement in order to set forth
their rights and obligations relating to the Conversion Rights in the event of
a Qualifying IPO.
THE PARTIES HEREBY AGREE TO THE FOLLOWING:
1. EXCHANGE. Upon the closing of a Qualifying IPO (as defined below),
Beta shall transfer, convey and deliver to LHC Group all right, title
and interest in the Membership Interest of Beta in Acadian, in
exchange for the following:
1.1 300,000 shares of LHC Group common stock, as adjusted
proportionately for any and all stock splits (the "Restricted
Securities"); and
1.2 cash consideration in an amount equal to the value of 153,772
shares of LHC Group common stock (without taking into
consideration, and which amount shall therefore not be
adjusted for, any stock splits between the date hereof and
the closing date of the Qualifying IPO) times the per share
offering price in a Qualifying IPO before underwriting
discounts and commissions, payable as follows:
(a) One-half of such cash consideration shall be payable
in cash within thirty (30) days following the
closing date of the Qualifying IPO; and
(b) The balance of such cash consideration shall be
payable within one hundred fifty (150) days
following the Closing Date of the Qualifying IPO.
2. ISSUANCE OF STOCK CERTIFICATES/STOCK RESTRICTIONS. On the closing date
of the Qualifying IPO, LHC Group shall issue stock certificates to
Beta evidencing its ownership interest in the Restricted Securities.
Beta, Xxxx and Xxxxxxx hereby acknowledge that the Restricted
Securities will not be registered under the Securities Act (as defined
below). Beta also agrees not to sell or transfer the Restricted
Securities for a period of at least one year following the closing
date of the Qualifying IPO. Further, Beta agrees to execute a lock up
agreement in a form agreed to by LHC Group and the underwriters in the
Qualifying IPO pursuant to which Beta will agree not to sell any of
the Restricted Securities for a period of one year following the
closing date of the Qualifying IPO.
3. RETURN OF MEMBERSHIP INTEREST. On the closing date of the Qualifying
IPO, Beta shall return to LHC Group any and all certificates or other
instruments evidencing its ownership interest in Acadian, and shall,
at the option of LHC Group, deliver such other evidence of the
transfer of its interest to LHC Group as is reasonably required by LHC
Group.
4. REPRESENTATIONS.
a. Beta represents and warrants to LHC Group that it has not
assigned, transferred or conveyed any interest in the
Membership Interest in Acadian to any affiliate or other
third party, and that it owns such Membership Interest free
and clear of any and all liens, mortgages, charges,
encumbrances, voting trust or other restrictions of any kind;
b. Beta, Xxxxxxx and Xxxx represent that they have received no
material information regarding this investment in LHC Group
other than information which is generally available to the
public. They further acknowledge and represent that they have
not made their decision to enter into this Agreement, or to
cause Beta to enter into this Agreement, based in whole or in
part on any representations of LHC Group, its officers,
shareholders, attorneys, consultants or agents regarding
LHC Group or its future, or the investment;
c. Beta is converting its Membership Interests into the
Restricted Securities for its own account, with the intention
of holding the Restricted Securities for investment and with
no present intention of dividing or allowing others to
participate in this investment or of reselling or otherwise
participating, directly or indirectly, in a distribution of
the Restricted Securities; and it will not make any sale,
transfer, or other disposition of the Restricted Securities
without registration under the Securities Act (as defined
below) and similar state acts unless an exemption from
registration is available under the Securities Act and
similar state acts.
d. The current facts surrounding this investment do not satisfy
conditions under Rule 144 under the Securities Act that would
permit the undersigned to resell the Restricted Securities
under such Rule; even if satisfaction of the conditions under
Rule 144 should occur, the undersigned could resell the
Restricted Securities in reliance upon the provisions of Rule
144 only in limited amounts and in accordance with the other
terms and conditions of Rule 144; and in connection with any
resale of the Restricted Securities by the undersigned that
Rule 144 does not permit, the undersigned must comply with
some other registration exemption.
e. Each of Beta, Xxxx and Xxxxxxx is an "accredited investor" as
defined in Rule 501(a) of Regulation D promulgated by the
Securities and Exchange Commission. Each of Beta, Xxxx and
Xxxxxxx acknowledges that by reason of his or its business or
financial experience or the business or financial experience
of his professional advisor(s), he has the capacity to
protect his or its own interests in connection with Beta's
receipt of the Restricted Securities.
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5. SETTLEMENT AND COMPROMISE.
a. The Parties acknowledge and agree that effective as of the
closing date of the Qualifying IPO the terms of this
Agreement shall serve as a full and complete settlement and
compromise of any and all claims, demands, liens, lawsuits,
actions, causes of action, debts, costs, rights, liabilities,
damages, costs and expenses arising out of, related to, or in
any way connected with Beta's ownership of the Membership
Interest in Acadian and the Parties' relationship under the
Operating Agreement, provided that nothing in this Agreement
shall release any party of its obligations set forth in this
Agreement.
b. The Parties further acknowledge and agree that effective as
of the date of this Agreement the terms of this Agreement
shall serve in lieu of, and supersede in their entirety the
terms of the Operating Agreement with regards to the
Conversion Rights notwithstanding any provision to the
contrary contained therein. Beta, Xxxx and Xxxxxxx hereby
release LHC Group, Acadian and their officers, directors and
affiliates from any and all claims, demands, liens, lawsuits,
actions, causes of action, debts, costs, rights, liabilities,
damages, costs and expenses relating to or arising out of the
Conversion Rights excluding claims relating to the obligation
of LHC Group to issue the Restricted Securities and make the
cash payments required by Section 1 hereof upon a Qualifying
IPO.
6. CONDITION PRECEDENT. The Parties' obligations under this Agreement are
specifically conditioned upon the closing of a Qualifying IPO
involving the equity of LHC Group. A "Qualifying IPO" means the sale
by LHC Group or its successor of shares of its common stock in a firm
commitment underwritten public offering pursuant to a registration
statement under the Securities Act of 1933, as amended (the
"Securities Act") at a total public offering price per share (prior to
underwriters' commissions and expenses) of not less than $10
(appropriately adjusted for any stock split, dividend, combination or
other recapitalization) and which results in aggregate cash proceeds
to LHC Group of not less than $25 million (the "Qualifying IPO").
7. INDEMNIFICATION. Beta, Xxxxxxx and Xxxx agree to severally protect,
defend, reimburse, pay, indemnify, release, dismiss, discharge and
forever hold harmless LHC Group, its successors and assigns, in
respect of any and all losses, claims, demands, liens, lawsuits,
actions, causes of action, debts, costs, rights, liabilities, damages,
costs and expenses, whether known or unknown, arising out of, related
to, or in any way connected with Beta's ownership of the Membership
Interest in Acadian, the Parties relationship under the Operating
Agreement, or the representations made by Beta, Xxxxxxx and Xxxx
herein.
8. CLOSING DATE RELEASE. In consideration for the receipt of the
Restricted Securities and the promise of LHC Group to make the cash
payments required by Section 1.2, Beta, Xxxx and Xxxxxxx agree that on
the Closing Date of the Qualifying IPO they will execute a general
release of LHC Group and Acadian pursuant to which they agree to
release LHC Group, Acadian and their officers, directors and
affiliates from any and all claims, demands, liens, lawsuits, actions,
causes of action, debts, costs, rights, liabilities, damages, costs
and expenses arising out of, related to, or in any way connected with
Beta's ownership of the Membership Interest in Acadian, the Conversion
Rights and the Parties' relationship under the Operating Agreement.
9. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the respective Parties hereto, their legal representatives,
successors and assigns.
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10. ENTIRE AGREEMENT. This Agreement supersedes all agreements previously
made between the Parties hereto relating to its subject matter.
11. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Louisiana.
12. 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 be one and the same instrument.
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IN WITNESS WHEREOF, the Parties have signed this Agreement on the date
first written above.
WITNESSES: LHC GROUP, LLC
/s/ Elistca X. Xxxxxxx
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/s/ Xxxx Xxxxxx By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Manager
LOUISIANA HEALTH CARE GROUP, LLC
By LHC Group, LLC, Manager
/s/ Elistca X. Xxxxxxx
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/s/ Xxxx Xxxxxx By: /s/ Xxxxx X. Xxxxx Manager
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Xxxxx X. Xxxxx, Manager
BETA HOME CARE, INC.
/s/ Elistca X. Xxxxxxx
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/s/ Xxxx Xxxxxx By: /s/ Xxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxxx Xxxxxxx, President
/s/ Elistca X. Xxxxxxx
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/s/ Xxxx Xxxxxx /s/ Xxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxxx Xxxxxxx
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/s/ Elistca X. Xxxxxxx
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/s/ Xxxx Xxxxxx /s/ Xxxx Xxxx
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Xxxx Xxxx
/s/ Xxxxxxx X. XxxXxxxxx
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NOTARY PUBLIC
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SCHEDULE A
MEMBERSHIP SCHEDULE
ACADIAN HOME HEALTH CARE SERVICES, L.L.C.
AS OF: JANUARY 1, 2004
LOUISIANA HEALTH CARE GROUP, LLC 62.50 UNITS
BETA HOMECARE, INC. 37.50 UNITS