EXHIBIT 99.1(e)(6)
DATED: August 1, 2002
THIS DEED OF RELEASE IS MADE BY AND AMONG:
(1) Each of the persons named in Schedule 1 hereto ("the PHFL Parties");
(2) Omega Worldwide, Inc., a Maryland corporation whose principal office is
at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0, Xxx Xxxxx, Xxxxxxxx, 00000 ("OWI")
contracting on behalf of itself and all of its subsidiary undertakings
(3) Principal Healthcare Finance Limited, a company registered in Jersey under
No. 62304 and having its registered office at 00 Xxxxxxxxx, Xx Xxxxxx,
Xxxxxx XX0 0XX, Channel Islands ("PHFL") contracting on behalf of itself
and all of its subsidiary undertakings
(4) Each of the persons named in Schedule 2 hereto ("the Schedule 2
Parties")
(each of the above persons a "Party" and together "the Parties")
RECITALS
(A) Each of the PHFL Parties and each of the Schedule 2 Parties is or has been
a shareholder, director, or employee of or consultant to PHFL and/or OWI
and/or any of their respective subsidiary undertakings. OWI holds
approximately one third of the issued shares in PHFL.
(B) Certain of the Parties have been in dispute with one another in
relation to PHFL and proceedings ("Jersey Proceedings") were commenced
in the Royal Court of Jersey (Samedi Division), in the name of PHFL and
OWI against Xxxxx X Xxxxxx Xx, Xxxxxx X Xxxxxx and Xxxxxx X Xxxxxx
(together "the Defendants") by an Order of Justice dated 26 June 2002
and which included injunctions against the Defendants. The parties to
the Jersey Proceedings filed a Consent Order and Notice of
Discontinuance dated 15 July 2002 (the "Consent Order") agreeing to the
making of orders lifting the injunctions and discontinuing the action.
(C) Principal Healthcare Finance Investments (Guernsey) Limited ("PH
Investments") and Four Seasons Health Care Limited ("Four Seasons"),
being companies under substantially common ownership, have respectively
made proposals with a view to an offer ("the PHFL Offer") being made by
Altium Capital Limited on behalf of PH Investments to acquire all of
the issued shares and warrants of PHFL, other than those already held
by OWI and an offer ("the OWI Offer") being made by a wholly-owned
subsidiary of Four Seasons to acquire all of the issued and outstanding
common stock of OWI and merge the acquiring subsidiary into OWI, upon
terms that the PHFL Offer and the OWI Offer (either an "Offer" and
collectively "the Offers") will be interconditional.
(D) In order to facilitate the Offers, the Parties have agreed that all
matters in dispute between any of the PHFL Parties (and/or their
respective associates) and/or between any of the PHFL Parties (and/or
their respective associates) on the one hand and any of the other
Parties (and/or their respective associates), on the other, shall,
subject in
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each case (save as and to the extent provided by Clause 2 in respect of
the Jersey Proceedings) to the Offers duly becoming or being declared
unconditional in all respects, be resolved on the basis set out in this
Deed. In addition, PH Investments and Four Seasons have indicated that
they will not be willing to make their respective Offers unless the
PHFL Shareholders enter into the releases and undertakings set out in
this Deed in favour of the Target Group Members.
NOW THIS DEED WITNESSES as follows:
1 DEFINITIONS AND INTERPRETATION
In this Deed the following terms and expressions have the
meanings set out below:-
"ASSOCIATE" means:
(1)in relation to any Party being an individual, each and any
of the following as at the date of this Deed:-
(a) that individual's spouse and/or children and remoter issue
(including stepchildren);
(b) any partnership in which that individual or any Associate
of that individual is a partner and/or any body corporate
in which that person and/or any Associate(s) of that
individual are interested (directly or indirectly) in share
capital carrying in aggregate more than thirty per cent of
the voting rights normally able to be exercised at general
meetings thereof or entitled to exercise or control the
exercise of more than thirty per cent of such voting
rights;
(c) any trust of which that individual or any Associate of that
person is a beneficiary (whether discretionary or
otherwise);
(d) other person being the holder of shares or warrants in PHFL
and/or OWI in which that individual is interested within the
meaning of Part X of the Companies Xxx 0000; and
(e) without prejudice to the generality of the foregoing, any
person or entity listed as an Associate of such individual in
the Schedule 1 or Schedule 2
Provided always that for the purposes of Clauses 3.1 and 3.2, those
Associates described in paragraph (b) and/or (d) above shall be
"released persons" only to the extent the same are identified in
Schedule 1 or Schedule 2; and
(2)in relation to any Party being a body corporate, any other
entity which at the date of this Deed is its parent undertaking
or subsidiary undertaking or a subsidiary undertaking of its
parent undertaking, and, in the case of PHFL and OWI, any other
entity which will become its parent undertaking
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as a result of Completion together with Alchemy Partners and
Alchemy Partners (Guernsey) Limited;
"COMPLETION" means the PHFL Offer becoming or being duly declared
unconditional in all respects;
"PHFL OFFER DOCUMENT" means the draft dated 24 July 2002 of the
document which will formally make the PHFL Offer, a copy of which
has been initialled, for the purpose of identification, by partners
of Xxxx Xxxxx Xxxxxx Xxxxxxxx, Xxxxx Xxxxx Xxxx & Maw and
Macfarlanes respectively;
"TARGET GROUP MEMBER" means and includes each and any of PHFL,
OWI and their respective Associates;
"subsidiary undertaking" and "parent undertaking" have the
meanings provided by the Companies Xxx 0000 of Great Britain;
2 JERSEY PROCEEDINGS
2.1 The parties to the Jersey Proceedings have filed a Consent Order
dated 15 July 2002 agreeing to the making of orders lifting the
injunctions and discontinuing the action. The parties to the Jersey
Proceedings acknowledge that the filing of the Consent Order will
not of itself provide the Defendants with a defence to a subsequent
action for the same, or substantially the same cause of action.
2.2 Save as provided in Clause 4 below and notwithstanding the Consent
Order referred to in Clause 2.1 above, OWI, PHFL, Xxxxx X Xxxxxx Xx,
Xxxxxx X Xxxxxx and Xxxxxx X Xxxxxx agree to waive, upon and with
effect from Completion, any and all claims rights and interests of
any kind that they have against each other as at the time of
Completion or would but for this Deed of Release have had in the
future in respect of any matter arising from or connected with the
matters pleaded in the Jersey Proceedings.
2.3 Notwithstanding Clause 2.2 above the Defendants shall be entitled to
enforce the order for costs in their favour contained in the Consent
Order.
3 OTHER MATTERS
Save as provided in Clause 4 below:
3.1 each PHFL Party agrees that, with effect from Completion, such Party
shall not have, and shall procure that no Associate of such Party
asserts, any claim, right or other interest of any kind (whether,
without limitation, direct or indirect, actual or contingent, based
on facts known or unknown to any of the Parties or their Associates
or on the law as it currently stands or may develop, or for fraud,
any tortious act or breach of contract, or for compensation for loss
of office or monies due or on any other account whatsoever) against
any other Party and/or his or its Associates (being the "released
parties" for purposes of this Clause 3.1), in respect of any act,
event or omission occurring, or
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circumstances arising, prior to the date of this Deed and which
relates in any way to OWI, PHFL and/or any Target Group Member;
3.2 each of the Parties (other than the PHFL Parties) agrees that, with
effect from Completion, such Party shall not have, and shall procure
that no Associate of such Party asserts, any claim, right or other
interest of any kind (whether, without limitation, direct or
indirect, actual or contingent, based on facts known or unknown to
any of the Parties or their Associates or on the law as it currently
stands or may develop, or for fraud, any tortious act or breach of
contract, or for compensation for loss of office or monies due or on
any other account whatsoever) against any PHFL Party and/or his or
its Associates (being the "released parties" for purposes of this
Clause 3.2), in respect of any act, event or omission occurring, or
circumstances arising, prior to the date of this Deed and which
relates in any way to OWI, PHFL and/or any Target Group Member;
3.3 each of the Parties covenants and undertakes that, to the extent
that any such claim, right or other interest as is referred to in
Clause 3.1 or as the case may be 3.2 exists or may exist in favour
of such Party and/or any of his or its Associates, such Party (to
the fullest extent possible under applicable law) irrevocably and
unconditionally waives such claim or obligation and forever
discharges and releases each released person from any debt,
obligation or liability whatsoever to such Party in respect of such
claim or obligation and undertakes to procure such waiver, discharge
and release by any Associate of such Party (and if and to the extent
that this Clause 3.3 may be ineffective to waive, discharge and
release any such claim or obligation such Party hereby irrevocably
assigns, and undertakes to procure the assignment by any relevant
Associate of such Party of, the benefit of such claim or other
obligation to or as directed by the relevant released party, in the
case of any claim against or obligation of any other Party, in each
case subject to and with effect from Completion;
3.4 each of the Parties covenants and undertakes that such Party will
not and to procure that its Associates will not, (a) during the
period from the date of this Deed until the earlier of Completion or
the date the PHFL Offer lapses or is withdrawn; or (b) at any time
after Completion: initiate, assert, maintain, institute or be a
party to any claim, action, suit or proceedings (including without
limitation any derivative action and/or class action in any
jurisdiction) of any kind whatsoever, against any relevant released
person in respect of any claim, right or interest the subject of the
waivers and releases set out in the above provisions of this Clause
3 or in any such case encourage or assist any other person to
initiate, assert, maintain, institute or join in any of the
foregoing.
For the avoidance of doubt the foregoing provisions of this Clause 3
shall be null and void (save as regards any antecedent breach of
this Clause 3) in the event that both Offers have not been made by
12 August 2002, or, having been made, the PHFL Offer lapses or is
withdrawn, or Completion has not occurred within 75 days after the
PHFL Offer is made. Notwithstanding anything to the contrary in this
Deed, if Omega I Acquisition, Inc. does not acquire beneficial
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ownership of at least 30 per cent of the outstanding common stock of
OWI within 90 days after the Completion Date, then this Deed shall
thereafter have effect (a) in relation to all released Parties other
than PHFL and its Associates, as if the concluding words of
paragraph 3.1 were "and which relates in any way to PHFL and/or any
of its Associates"; and (b) in relation to all releasing Parties
other than PHFL and its Associates, as if the concluding words of
paragraph 3.2 were "and which relates in any way to PHFL and/or of
its Associates".
4 SAVINGS
4.1 Nothing in this Deed shall in any way restrict any Target Group
Member from asserting or pursuing or recovering after Completion in
respect of any claim or cause of action against any PHFL Party
and/or any Associate thereof in respect of any breach of contract,
breach of fiduciary duty, liability to account for any profits or
assets, statutory liability or tortious or unlawful act committed
while such PHFL Party or Associate was a director, officer, employee
or agent of or consultant to a Target Group Member, if and to the
extent that such claim or cause of action arises out of or in
respect of dishonest acts, statements or omissions on the part of
such PHFL Party and/or any Associate thereof of which the directors
of PH Investments named in paragraph 1(a) of Appendix II to the
Offer Document did not have actual knowledge, both of the acts,
statements or omissions in question and of the dishonesty involved,
on or before the date of this Deed (but nothing in this Clause 4.1
shall be construed as an admission or assertion that any grounds for
any such claim or cause of action exists).
4.2 Nothing in this Deed shall have the effect of waiving or
releasing any person from:-
4.2.1 any contractual obligation to the extent expressly disclosed in
paragraph 5 of Appendix III to the Offer Document; or
4.2.2 liability for death or personal injury.
4.3 Any other provision of this Deed notwithstanding, the provisions
of clauses 2 and 3 of this Deed shall not apply to any claims,
rights or other interests of Xx. Xxxxxx and/or any of his
Associates against OWI and/or any of its Associates or of OWI
and/or any of its Associates against Xx. Xxxxxx and/or any of his
Associates.
4.4 For the avoidance of doubt, nothing in this Deed shall prevent any
Party who is or was an officer or director of another Party or
Associate of a Party from claiming, to the extent he is otherwise
lawfully entitled to do so, under an Directors and Officers
insurance policy of that other Party or Associate or for
indemnification under rights granted to him by statute or other law
or regulation.
5 COUNTERPARTS
This Deed may be executed in any number of counterparts each of
which shall constitute one and the same original.
6 THIRD PARTY RIGHTS
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The Parties agree that the provisions of this Deed shall be
enforceable under the Contracts (Rights of Third Parties) Xxx 0000
by any released party in whose favour such provisions are expressed
to operate; provided that notwithstanding that any term of this Deed
may be or become enforceable by a third party, the terms of this
Deed or any of them may be varied, amended or modified or this Deed
may be suspended, cancelled, rescinded or terminated, as between all
or any of the Parties and as regards any of their respective
released persons, by agreement in writing between the relevant
Parties made with the written consent of PH Investments and Four
Seasons, without the consent of any other released person.
7 CHOICE OF LAW AND JURSIDICTION; NATURE OF OBLIGATIONS
This Deed is to be governed by and construed in accordance with
English law and each of the Parties submits to the jurisdiction of
the English courts for all purposes in connection herewith. The
obligations of the Parties hereunder are not joint and several, so
that each Party shall be responsible hereunder for his or its own
acts and/or omissions (including, for the avoidance of doubt,
failing to procure acts or omissions of his or its Associates in
accordance with this Deed) and shall not be responsible for the acts
and/or omissions of any other Party or any Associate of any other
Party.
IN WITNESS WHEREOF EACH OF THE PARTIES HAS EXECUTED AND DELIVERED THIS DOCUMENT
AS DEED ON THE DATE SET OUT AT ITS HEAD.
SCHEDULE 1
PHFL PARTIES AND THEIR ASSOCIATES
PARTY ASSOCIATE
---------------------------------- --------------------------------------------
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxx
---------------------------------- --------------------------------------------
Centum Investments Limited
---------------------------------- --------------------------------------------
A Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxx & Partners LLP
Centenary International Corporation
Centum Investments Limited
---------------------------------- --------------------------------------------
Xxxxxx X. Xxxxxx individually and as County Healthcare Group Limited and
trustee of: its subsidiaries
The Xxxxxx X Xxxxxx Trust
The Xxxx X Xxxxxx Trust Xx.0
Xxx Xxxxxxx X Xxxxxx Xxxxx Xx.0
---------------------------------- --------------------------------------------
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---------------------------------- --------------------------------------------
Xxxx X Xxxxxx
Xxxxxxxx X Xxxxx for Xxxx X Xxxxx and
for Xxxxx X Xxxxx
Xxxxxxx X Xxxxxx for Xxxxxx X Xxxxxx
and for Xxxxxx X Xxxxxx
Xxxxx X Xxxxx as Trustee of :
the Xxxxxxxxxxx X Xxxxx Trust; and
the Xxxxx X. Xxxxx Trust
---------------------------------- --------------------------------------------
Xxxxxx X Xxxxxx
---------------------------------- --------------------------------------------
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SCHEDULE 2
OTHER PARTIES
PARTY ASSOCIATE
---------------------------------- --------------------------------------------
Omega Healthcare Investors, Inc.
---------------------------------- --------------------------------------------
Xxxxxxxxxxx Family LLC
---------------------------------- --------------------------------------------
Xxxxxx X Xxxxxxxxxxx
---------------------------------- --------------------------------------------
Xxxxxx Xxxxxx Capital Return Trust
---------------------------------- --------------------------------------------
Xxxxxxx X Xxxxxx
---------------------------------- --------------------------------------------
Chee Jap
---------------------------------- --------------------------------------------
Xxxxxx X Xxxxx
---------------------------------- --------------------------------------------
Xxxx Xxxxxx
---------------------------------- --------------------------------------------
Xxxx Xxxxxxx
---------------------------------- --------------------------------------------
Xxxxx Xxxx
---------------------------------- --------------------------------------------
Xxxx Xxxxx
---------------------------------- --------------------------------------------
Xxxxxxx Xxxxxx Xxxxxxx
---------------------------------- --------------------------------------------
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EXECUTED AS A DEED and delivered on the date set out at the head of this Deed.
EXECUTED as a Deed and Delivered )
by OMEGA WORLDWIDE, INC. )
acting by ) _____________________________
Name: _______________________
Title: ________________________
EXECUTED as a Deed and Delivered )
by PRINCIPAL HEALTHCARE )
FINANCE LIMITED )
acting by ) __________________________________
and by )
Name: ____________________________
Director: __________________________
__________________________________
Name: ____________________________
Director/Secretary: __________________
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EXECUTED as a Deed and Delivered )
by CENTUM INVESTMENTS )
LIMITED )
acting by ) __________________________________
and by )
Name: ____________________________
Director: ________________________
__________________________________
Name: ____________________________
Director/Secretary: ______________
SIGNED and DELIVERED as a DEED ) SIGNED and DELIVERED as a DEED )
by the said XXXXX X XXXXXX ) by the said XXXXXXX XXXXXX )
in the presence of:- ) in the presence of:- )
WITNESS: WITNESS:
-------- --------
Signature: _______________________ Signature:__________________________
Name: ____________________________ Name: ______________________________
Address: _________________________ Address: ___________________________
Occupation: ______________________ Occupation: ________________________
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SIGNED and DELIVERED as a DEED ) SIGNED and DELIVERED as a DEED )
by the said A XXXXXX XXXXXXXXX ) by the said XXXXXX X XXXXXX )
in the presence of:- ) in the presence of:- )
WITNESS: WITNESS:
-------- --------
Signature: _______________________ Signature: _________________________
Name: ____________________________ Name: ______________________________
Address: _________________________ Address: ___________________________
Occupation: ______________________ Occupation: ________________________
SIGNED and DELIVERED as a DEED ) SIGNED and DELIVERED as a DEED )
by the said XXXXXX XXXXXX ) by the said XXXXXX X XXXXXXXXXXX )
in the presence of:- ) in the presence of:- )
WITNESS: WITNESS:
-------- --------
Signature: _______________________ Signature: _________________________
Name: ____________________________ Name: ______________________________
Address: _________________________ Address: ___________________________
Occupation: ______________________ Occupation: ________________________
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SIGNED and DELIVERED as a DEED ) SIGNED and DELIVERED as a DEED )
by the said XXXXXXX XXXXXX ) by the said CHEE JAP )
in the presence of:- ) in the presence of:- )
WITNESS: WITNESS:
-------- --------
Signature: _______________________ Signature: ________________________
Name: ____________________________ Name: _____________________________
Address: _________________________ Address: __________________________
Occupation: ______________________ Occupation: _______________________
SIGNED and DELIVERED as a DEED ) SIGNED and DELIVERED as a DEED )
by the said XXXXXX X XXXXX ) by the said XXXX XXXXXX )
in the presence of:- ) in the presence of:- )
WITNESS: WITNESS:
-------- --------
Signature: _______________________ Signature: _________________________
Name: ____________________________ Name: ______________________________
Address: _________________________ Address: ___________________________
Occupation: ______________________ Occupation: ________________________
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SIGNED and DELIVERED as a DEED ) SIGNED and DELIVERED as a DEED )
by the said XXXX XXXXXXX ) by the said XXXXX XXXX )
in the presence of:- ) in the presence of:- )
WITNESS: WITNESS:
-------- --------
Signature: _______________________ Signature: _________________________
Name: ____________________________ Name: ______________________________
Address: _________________________ Address: ___________________________
Occupation: ______________________ Occupation: ________________________
SIGNED and DELIVERED as a DEED ) SIGNED and DELIVERED as a DEED )
by the said XXXX XXXXX ) by the said )
in the presence of:- ) as trustee of the XXXXXX XXXXXX )
CAPITAL RETURN TRUST )
in the presence of:- )
WITNESS: WITNESS:
-------- --------
Signature: _______________________ Signature: _________________________
Name: ____________________________ Name: ______________________________
Address: _________________________ Address: ___________________________
Occupation: ______________________ Occupation: ________________________
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EXECUTED as a Deed and Delivered )
by OMEGA HEALTHCARE )
INVESTORS, INC. )
acting by )
_____________________________
Name: _______________________
Title: ______________________
EXECUTED as a Deed and Delivered )
by XXXXXXXXXXX FAMILY LLC )
acting by )
_____________________________
Name: _______________________
Title: ______________________
SIGNED and DELIVERED as a DEED )
by the said XXXXXXX XXXXXX XXXXXXX )
in the presence of:- )
WITNESS:
--------
Signature: _______________________
Name: ____________________________
Address: _________________________
Occupation: ______________________
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