0000912057-01-537092.txt : 20011101
0000912057-01-537092.hdr.sgml : 20011101
ACCESSION NUMBER: 0000912057-01-537092
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 7
FILED AS OF DATE: 20011030
GROUP MEMBERS: DANIEL A. DECKER
GROUP MEMBERS: DONALD J. MCNAMARA
GROUP MEMBERS: EXPLORER HOLDINGS GENPAR, LLC
GROUP MEMBERS: HAMPSTEAD INVESTMENT PARTNERS III, L.P.
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: OMEGA HEALTHCARE INVESTORS INC
CENTRAL INDEX KEY: 0000888491
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798]
IRS NUMBER: 383041398
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-43542
FILM NUMBER: 1770978
BUSINESS ADDRESS:
STREET 1: 900 VICTORS WAY
STREET 2: STE 350
CITY: ANN ARBOR
STATE: MI
ZIP: 48108
BUSINESS PHONE: 7348870200
MAIL ADDRESS:
STREET 1: 900 VICTORS WAY
STREET 2: STE 350
CITY: ANN ARBOR
STATE: MI
ZIP: 48108
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: EXPLORER HOLDINGS LP
CENTRAL INDEX KEY: 0001120288
STANDARD INDUSTRIAL CLASSIFICATION: []
IRS NUMBER: 752886947
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: OMEGA HEALTHCARE INVESTORS INC
STREET 2: 900 VICTORS WAY SUITE 350
CITY: ANN ARBOR
STATE: MI
ZIP: 734870200
BUSINESS PHONE: 2142204900
MAIL ADDRESS:
STREET 1: 4200 TEXAS COMMERCE TOWER WEST
STREET 2: 2200 ROSS AVENUE
CITY: DALLAS
STATE: TX
ZIP: 75201
SC 13D/A
1
a2062165zsc13da.txt
SCHEDULE 13D/A
Page 1 of 13 Pages
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Omega Healthcare Investors, Inc.
-------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.10 per share
-------------------------------------------------------------------------------
(Title of Class of Securities)
681936100
------------------------------------------------------
(CUSIP Number)
William T. Cavanaugh, Jr.
Explorer Holdings, L.P.
2200 Ross Avenue
Suite 4200 West
Dallas, Texas 75201-6799
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 29, 2001
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the reporting person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
CUSIP NO. 681936100 13D Page 2 of 13 Pages
---------
------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Explorer Holdings, L.P.
------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
------------------------------------------------------------------------------
3 SEC USE ONLY
------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) / /
------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES None
BENEFICIALLY --------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH REPORTING 1,048,420**
--------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,048,420**
------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,048,420**
------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES / /*
------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.5%**
------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**The Reporting Person beneficially owns 1,048,420 shares of Series C
Convertible Preferred Stock previously reported by the Reporting Person, which
shares are convertible into 16,774,720 shares of common stock of Omega. Based on
the number of shares of common stock of Omega reported to be outstanding as of
October 26, 2001, such shares would represent 45.5% of Omega's outstanding
shares of common stock as of October 26, 2001, after giving effect to such
issuance. Pursuant to the Investment Agreement described in Items 3 and 4 of
this Schedule 13D/A, Explorer Holdings, L.P. has agreed to purchase additional
shares of stock of Omega in an amount equal to the difference between $50
million and the gross proceeds received by Omega from the sale of common stock
in a rights offering that Omega has agreed to commence promptly after the date
hereof. If the stockholders of Omega approve the issuance of common stock to
Explorer prior to the closing of the transactions contemplated by the Investment
Agreement, Explorer will purchase shares of common stock; otherwise, the
purchased shares will consist of Series D Convertible Preferred Stock having the
terms described in Item 3 of this Schedule 13D/A. The purchase price for the
shares to be acquired by Explorer (or the per common share conversion price, if
the purchased shares are Series D Preferred) will be the same price as the
subscription price offered to Omega's stockholders in the rights offering, not
to exceed $2.92 per share. Because the number of shares to be acquired by
Explorer will depend upon the number of shares subscribed for in the rights
offering, it is not possible to determine at this time the number of shares that
will be acquired by Explorer pursuant to the Investment Agreement.
CUSIP NO. 681936100 13D Page 3 of 13 Pages
---------
------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Explorer Holdings GenPar, LLC
------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
------------------------------------------------------------------------------
3 SEC USE ONLY
------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
-----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) / /
------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES None
BENEFICIALLY --------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH REPORTING 1,048,420**
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,048,420**
------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,048,420**
------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES / /*
------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.5%**
------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
00
------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**See footnote ** on page 2 of this Schedule 13D/A.
CUSIP NO. 681936100 13D Page 4 of 13 Pages
---------
------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Hampstead Investment Partners III, L.P.
------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
------------------------------------------------------------------------------
3 SEC USE ONLY
------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
-----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) / /
------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES None
BENEFICIALLY --------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH REPORTING 1,048,420**
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,048,420**
------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,048,420**
------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.5%**
------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**See footnote ** on page 2 of this Schedule 13D/A.
CUSIP NO. 681936100 13D Page 5 of 13 Pages
---------
------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Donald J. McNamara
------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
------------------------------------------------------------------------------
3 SEC USE ONLY
------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
-----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) / /
------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES None
BENEFICIALLY --------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH REPORTING 1,048,420**
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,048,420**
------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,048,420**
------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES / /*
------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.5%**
------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**See footnote ** on page 2 of this Schedule 13D/A.
CUSIP NO. 681936100 13D Page 6 of 13 Pages
---------
------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Daniel A. Decker
------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
------------------------------------------------------------------------------
3 SEC USE ONLY
------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
-----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) / /
------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES None
BENEFICIALLY --------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH REPORTING 1,048,420**
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,048,420**
------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,048,420**
------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES / /*
------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.5%**
------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**See footnote ** on page 2 of this Schedule 13D/A.
This amendment amends and supplements the information set forth in the
Statement on Schedule 13D filed on May 25, 2000, as amended on April 19, 2001
and amended further on September 20, 2001 (as amended, the "STATEMENT") by the
Reporting Persons.
ITEM 1. SECURITY AND ISSUER.
This amendment relates to the common stock, par value $0.10 (the
"COMMON STOCK"), of Omega Healthcare Investors, Inc. (the "COMPANY"), the Series
C Convertible Preferred Stock, par value $1.00, of the Company (the "SERIES C
PREFERRED"), and the Series D Convertible Preferred Stock, par value $1.00, of
the Company (the "SERIES D PREFERRED") that may be issued by the Company.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On October 30, 2001, the Company announced a plan to raise $50 million
in new equity capital from its current stockholders. The purpose of such
offering is to facilitate the Company's reaching an agreement with its senior
secured bank lenders regarding the modification of their credit facilities and
to enhance the Company's ability to repay approximately $108 million in debt
maturing during the first half of 2002. The Company expects to use the proceeds
from the offering to repay a portion of the maturing debt and for working
capital and other general corporate purposes.
The Company's plan to raise $50 million of new common equity consists
of two components: a $27.24 million rights offering to its common stockholders
and a private placement of at least $22.76 million to Explorer Holdings, L.P.
("EXPLORER"). In the rights offering, the Company plans to distribute one
non-transferable right to purchase one share of Common Stock for every 2.15
shares of Common Stock held by stockholders at the close of business on November
8, 2001 or such later date as the registration statement relating to the rights
offering is declared effective by the SEC. The number of rights that each common
stockholder will receive represents the stockholder's pro rata portion of the
$50 million the Company proposes to raise, thereby allowing stockholders who
fully participate in the rights offering the opportunity to avoid any dilution
in their ownership interest. The subscription price for each right is expected
to be $2.92 per share.
Explorer owns approximately 45.5% of the Company's issued and
outstanding Common Stock (giving effect to the conversion of Explorer's Series C
Preferred). The terms of Explorer's Series C Preferred give Explorer the right
to receive its pro rata portion on an as-converted basis of all dividends paid
to the holders of Common Stock, including the rights to be offered in the rights
offering. Explorer has agreed to waive this provision and will not receive
rights in the rights offering. Instead, Explorer has entered into an agreement
(the "INVESTMENT AGREEMENT") with the Company to invest at least $22.76 million,
representing its pro rata portion on an as-converted basis of the $50 million in
new equity the Company is seeking to raise, plus an amount equal to the
subscription price of the shares that are not subscribed for by the Company's
stockholders in the rights offering. Explorer has agreed to purchase its stock
at the same price per share as is offered to the Company's stockholders in the
rights offering. As a result of Explorer's commitment, the Company is assured of
receiving the entire $50 million in new equity capital it is seeking to raise if
the rights offering and the private placement to Explorer are completed.
Page 7 of 13 Pages
The Company's issuance of Common Stock to Explorer must be approved by
the Company's stockholders under NYSE rules. The Company intends to call a
special meeting of stockholders to seek approval of the issuance of Common Stock
to Explorer among other matters. Explorer has committed to vote its shares,
representing approximately 45.5% of the voting shares, in favor of this
proposal.
If the stockholders of Omega approve the issuance of Common Stock to
Explorer prior to the closing of the transactions contemplated by the
Investment Agreement, Explorer will purchase shares of Common Stock;
otherwise, the purchased shares (the "SHARES") will consist of Series D
Preferred. The Series D Preferred are (i) non-voting, (ii) automatically
convertible into Common Stock at the rights offering subscription price
subject to customary antidilution provisions, on the earlier of stockholder
approval, or waiver by the New York Stock Exchange of the stockholder
approval requirement, and (iii) accrue cumulative dividends from the date of
initial issuance at the greater of 10% and the rate paid on the Common Stock
if stockholder approval of the conversion of the Series D Preferred is not
obtained prior to January 31, 2002. The foregoing description of the Series D
Preferred is qualified in its entirety by reference to the form of Series D
Articles Supplementary, the full text of which is incorporated herein by
reference to EXHIBIT C attached hereto.
The source of funds for Explorer's purchase of the Shares is expected
to be Explorer's working capital, which is expected to be derived from capital
contributions from its partners. However, Explorer reserves the right to obtain
such funds in whole or in part from other sources, including indebtedness. If
Explorer obtains such financing from other sources, it will promptly amend this
Statement.
Pursuant to the Investment Agreement, the closing is subject to the
following conditions:
1. The absence of any order, law or other legal restraint preventing the
consummation of the transactions contemplated by the Investment
Agreement;
2. The absence of the commencement or written threat of any lawsuits
against Explorer, the Company or their respective affiliates seeking to
prevent or materially and adversely alter the transactions contemplated
by the Investment Agreement which is reasonably likely to render it
impossible or unlawful to consummate the transactions contemplated by
the Investment Agreement or in the good faith judgment of Explorer
could reasonably be expected to have a Company Material Adverse Effect
(as defined in the Investment Agreement); and
3. The lenders under the Company's two credit facilities (i) entering into
amendments to their respective loan agreements with the Company on
terms and conditions satisfactory to each of the Company and Explorer
in their sole discretion, and (ii) waiving existing covenant defaults,
and the lender of our $175 million secured revolving credit facility
extending the maturity date of its loan by not less than 12 months from
its current maturity of December 31, 2002.
As a result of the foregoing conditions and other matters, including
matters which may be beyond the control of Explorer and the Company, there can
be no assurance as to whether the transactions contemplated by the Investment
Agreement will be consummated. In the event such
Page 8 of 13 Pages
conditions are not satisfied, the Company will terminate the rights offering and
the private placement to Explorer.
The Investment Agreement also contains various provisions relating to
indemnification (Article VI), termination (Article VII), and expenses (Section
8.12), all of which are incorporated herein by reference to the Investment
Agreement attached hereto as EXHIBIT A.
ITEM 4. PURPOSE OF TRANSACTION.
The responses to Items 3, 5, and 6 are incorporated herein by this
reference.
Upon the closing of the transactions contemplated by the Investment
Agreement, Explorer and the Company will amend their existing Stockholders
Agreement. Pursuant to the Amended and Restated Stockholders Agreement (the
"AMENDED STOCKHOLDERS AGREEMENT"), Explorer will be entitled to designate to the
Board that number of directors that would generally be proportionate to
Explorer's ownership of voting securities of the Company, not to exceed five
directors (six following a proposed increase in the size of the Board to ten
directors). The Company has agreed that the number of directors on the Board
will not exceed ten without the consent of Explorer. The Company has also agreed
to take such action to ensure generally that Explorer's representation on all
committees of the Board (other than the standing committee of independent
directors) is proportionate to its representation on the entire Board.
Explorer has agreed, so long as it owns at least 15.0% of the
Company's voting securities, to vote its shares in favor of three
"independent directors" as defined under the rules of The New York Stock
Exchange who are not affiliated with Explorer (the "NON-EXPLORER DIRECTORS").
Upon the increase of the size of the Board to ten members, Explorer will vote
its shares in accordance with the previous sentence in favor of an additional
person who is not an affiliate or associate of Explorer as a Non-Explorer
Director. Upon the increase of the size of the Board to ten members, the
Board has appointed C. Taylor Pickett, the Company's Chief Executive Officer,
as a Non-Explorer Director.
Pursuant to the Amended Stockholders Agreement, Explorer will no longer
be subject to certain restrictions under the prior Stockholders Agreement
preventing it from acquiring more than an additional 5% of the Company's voting
securities without prior Board approval, but Explorer will be restricted from
acquiring beneficial ownership of more than 80% of the voting securities of the
Company without the approval of a committee of the Board consisting entirely of
Non-Explorer Directors. Other restrictions on Explorer under the prior
Stockholders Agreement, including the agreement of Explorer not to solicit
proxies in opposition to, or prior to the issuance of a recommendation by, the
Board; not to join, form or participate in a group; not to deposit any
securities in a voting trust or other voting arrangement; and not to tender any
securities in a tender offer not approved by the Board will also no longer apply
to Explorer.
Page 9 of 13 Pages
Explorer will also no longer be subject to the right of first offer
transfer restrictions in the prior Stockholders Agreement.
Pursuant to the Amended Stockholders Agreement, Explorer has agreed
that it will not transfer voting securities of the Company to a transferee who,
as a result of such transfer, would beneficially own 10% or more of the
outstanding voting securities following such transfer unless such transferee
agrees to be bound by certain provisions of the Amended Stockholders Agreement.
The foregoing description of the Amended Stockholders Agreement is qualified in
its entirety by reference to the form of Amended Stockholders Agreement, the
full text of which is incorporated herein by reference to EXHIBIT D attached
hereto.
Pursuant to an Amended and Restated Registration Rights Agreement to be
entered into at the closing of the transactions contemplated by the Investment
Agreement, which will replace the Registration Rights Agreement between the
Company and Explorer, dated as of July 14, 2000, the Company will agree, subject
to certain limitations and under certain circumstances, to register for sale any
shares of the Company held by Explorer after the closing. The foregoing
description of the Amended and Restated Registration Rights Agreement is
qualified in its entirety by reference to the form of Amended and Restated
Registration Rights Agreement, the full text of which is incorporated herein by
reference to EXHIBIT E attached hereto.
Pursuant to the Investment Agreement, the Company is required to seek
the approval of the Company's stockholders to amend the Series C Articles
Supplementary for the Series C Preferred presently owned by Explorer (the
"AMENDED SERIES C ARTICLES SUPPLEMENTARY"). Pursuant to the Amended Series C
Articles Supplementary, the terms of the Series C Preferred will, subject to
stockholder approval, be amended to (i) remove the restriction that prevents the
voting or conversion of the Series C Preferred in excess of 49.9% of the voting
securities of the Company owned by Explorer, (ii) provide that upon the failure
of the Company to pay dividends owed upon the Series C Preferred or the Series D
Preferred for a period of time, the holders of the Series C Preferred and the
Series D Preferred, voting as a separate class, will be entitled to designate
two additional directors to the Company's Board, and (iii) make other technical
changes. The foregoing description of the Amended Series C Articles
Supplementary is qualified in its entirety by reference to the form of Amended
Series C Articles Supplementary, the full text of which is incorporated herein
by reference to EXHIBIT B attached hereto.
Pursuant to the Investment Agreement, the Company amended its Rights
Agreement, dated as of May 12, 1999, to exempt Explorer and its transferees
from the provisions thereof. The foregoing description of the amendment to
the Rights Agreement is qualified in its entirety by reference to Amendment
No. 2 to Rights Agreement, the full text of which is incorporated herein by
reference to EXHIBIT F attached hereto.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) As previously reported in the Statement, each of the Reporting Persons
beneficially owns 16,774,720 shares of Common Stock by virtue of
Explorer's ownership of 1,048,420 shares of Series C Preferred. Based
on the number of shares of Common Stock reported to be outstanding as
of October 26, 2001, such shares would represent 45.5% of the Company's
outstanding shares of Common Stock as of October 26, 2001, after giving
effect to such issuance. The number of Shares that Explorer will
purchase upon the
Page 10 of 13 Pages
closing of the transactions contemplated by the Investment
Agreement will depend upon the price of the shares offered
in the rights offering and the number of shares of Common Stock
purchased by the Company's stockholders pursuant to the rights
offering. Explorer will beneficially own such Shares directly and each
of the other Reporting Persons will beneficially own such Shares
indirectly through the relationships described in the Statement.
Messrs. McNamara and Decker disclaim beneficial ownership of all shares
held by Explorer.
(b) Each of the Reporting Persons has shared power to vote and dispose of
shares held by Explorer. Messrs. McNamara and Decker disclaim
beneficial ownership of all shares held by Explorer.
(c)-(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
The responses to Items 3, 4 and 5 are incorporated by reference,
including, in particular, the descriptions of the following documents:
1. Investment Agreement. See Items 3 and 4 above.
2. Amended Series C Articles Supplementary. See Item 4 above.
3. Series D Articles Supplementary. See Item 3 above.
4. Amended and Restated Stockholders Agreement. See Item 4 above.
5. Amended and Restated Registration Rights Agreement. See Item 4 above.
6. Amendment No. 2 to Rights Agreement. See Item 4 above.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A - Investment Agreement, dated as of October 29, 2001, by and
between Omega Healthcare Investors, Inc. and Explorer
Holdings, L.P.
Exhibit B - Form of Amended and Restated Articles Supplementary for
Series C Convertible Preferred Stock.
Exhibit C - Form of Articles Supplementary for Series D Convertible
Preferred Stock.
Exhibit D - Form of Amended and Restated Stockholders Agreement.
Exhibit E - Form of Amended and Restated Registration Rights Agreement.
Exhibit F - Amendment No. 2 to Rights Agreement
Page 11 of 13 Pages
SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct, and agree that this Statement may be filed
collectively on behalf of each of the undersigned by Explorer Holdings, L.P.,
Explorer Holdings GenPar, LLC, Hampstead Investment Partners III, L.P., Donald
J. McNamara and Daniel A. Decker.
Date: October 30, 2001 EXPLORER HOLDINGS, L.P.
By: Explorer Holdings GenPar, LLC,
its General Partner
By: /S/ WILLIAM T. CAVANAUGH, JR.
-----------------------------
William T. Cavanaugh, Jr.
Authorized Officer
EXPLORER HOLDINGS GENPAR, LLC
By: /S/ WILLIAM T. CAVANAUGH, JR.
-----------------------------
William T. Cavanaugh, Jr.
Authorized Officer
HAMPSTEAD INVESTMENT PARTNERS III, L.P.
By: Hampstead Investment Partners III
GenPar, L.P., its General Partner
By: Hampstead GenPar III, LLC,
its General Partner
By: /S/ WILLIAM T. CAVANAUGH, JR.
-----------------------------
William T. Cavanaugh, Jr.
Authorized Officer
/S/ WILLIAM T. CAVANAUGH, JR.*
------------------------------
Donald J. McNamara
/S/ WILLIAM T. CAVANAUGH, JR.*
------------------------------
Daniel A. Decker
--------------------
* Pursuant to Power of Attorney previously filed.
Page 12 of 13 Pages
EXHIBIT INDEX
Exhibit A - Investment Agreement, dated as of October 29, 2001, by and
between Omega Healthcare Investors, Inc. and Explorer
Holdings, L.P.
Exhibit B - Form of Amended and Restated Articles Supplementary for
Series C Convertible Preferred Stock.
Exhibit C - Form of Articles Supplementary for Series D Convertible
Preferred Stock.
Exhibit D - Form of Amended and Restated Stockholders Agreement.
Exhibit E - Form of Amended and Restated Registration Rights Agreement.
Exhibit F - Amendment No. 2 to Rights Agreement.
Page 13 of 13 Pages
EX-99.A
3
a2062165zex-99_a.txt
EXHIBIT 99(A)
EXHIBIT 99.A
------------
INVESTMENT AGREEMENT
INVESTMENT AGREEMENT (this "AGREEMENT"), dated as of October 29, 2001,
by and among Omega Healthcare Investors, Inc., a Maryland corporation (the
"COMPANY"), and Explorer Holdings, L.P., a Delaware limited partnership
("PURCHASER").
I. SHARE PURCHASE
-----------------
1.1 SHARE PURCHASE. (a) The Board of Directors of the Company
has authorized the issuance and sale to Purchaser hereunder of that number of
newly issued shares (the "SHARES") of (i) Series D Preferred Stock of the
Company, par value $1.00 per share (the "SERIES D PREFERRED STOCK", having the
designations, voting powers, preferences and relative, participating, optional
and other special rights, qualifications, limitations and restrictions thereof,
set forth in the Articles Supplementary attached hereto as EXHIBIT A (the
"SERIES D ARTICLES SUPPLEMENTARY"), or (ii) if the Company Stockholder Approval
shall have been obtained on or prior to the Closing Date, Common Stock, in each
case equal to the Share Amount. The "SHARE AMOUNT" shall mean (i) in the case of
Series D Preferred Stock, that number of shares of Series D Preferred Stock that
would upon conversion on the date of issuance of the Series D Preferred result
in the issuance of a number of shares of Common Stock equal to the quotient of
(A) the difference between $50 million and the gross proceeds received by the
Company from the sale of Common Stock in the Rights Offering (such difference,
the "UNSUBSCRIBED PURCHASE AMOUNT") divided by (B) the Rights Offering Exercise
Price (as defined in EXHIBIT G) and (ii) in the case of Common Stock, that
number of shares of Common Stock equal to the quotient of (A) the Unsubscribed
Purchase Amount divided by (B) the Rights Offering Exercise Price.
(b) At the Closing, the Company will issue and sell to
Purchaser, and Purchaser will purchase from the Company, the Shares for an
aggregate purchase price equal to the Unsubscribed Purchase Amount.
1.2 UNSUBSCRIBED PURCHASE AMOUNT. The Unsubscribed Purchase
Amount will be payable on the Closing Date in cash by bank wire transfer of
immediately available funds to an account of the Company designated by the
Company by written notice to Purchaser at least two Business Days prior to the
Closing.
1.3 CLOSING. Subject to the satisfaction or waiver by
Purchaser of the conditions set forth in Article V, the closing (the "CLOSING")
of the purchase and sale of the Shares will take place at the offices of Jones,
Day, Reavis & Pogue, 599 Lexington Avenue, New York, New York at 10:00 a.m.
local time within the later of (i) ten Business Days after the expiration date
of the Rights Offering (the "CLOSING DATE") and (ii) the date of closing of the
Rights Offering if it occurs.
1.4 CLOSING DELIVERIES. (a) At or prior to the Closing,
Purchaser will deliver to the Company:
(i) the Unsubscribed Purchase Amount, in accordance with
Section 1.2;
(ii) an Amended and Restated Stockholders Agreement in the
form attached hereto as EXHIBIT B (the "STOCKHOLDERS AGREEMENT"),
duly executed by Purchaser;
(iii) an Amended and Restated Registration Rights Agreement in
the form attached hereto as EXHIBIT C (the "REGISTRATION RIGHTS AGREEMENT"),
duly executed by Purchaser; and
(iv) a letter relating to the Advisory Agreement between the
Company and The Hampstead Group, L.L.C. (the "ADVISORY AGREEMENT") , in the form
attached hereto as EXHIBIT D (the "ADVISORY LETTER"), duly executed by The
Hampstead Group, L.L.C.
(b) At or prior to the Closing, the Company will deliver to
Purchaser:
(i) such number of validly issued stock certificates
evidencing the Shares, registered in the name of Purchaser or its Affiliates, as
Purchaser requests at least three Business Days prior to the Closing;
(ii) the Stockholders Agreement duly executed by the Company;
(iii) the Registration Rights Agreement duly executed by the
Company;
(iv) the Advisory Letter, duly executed by the Company;
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(v) the legal opinion of Powell, Goldstein, Frazer & Murphy
LLP, counsel to the Company, addressed to Purchaser and dated as of the Closing
Date, generally as to the matters set forth in Sections 2.1 (as to the Company
only), 2.2, 2.3(a), 2.4 and 2.7(a)(i) and (ii);
(vi) the Bank Agreements; and
(vii) the amendment to the Company Rights Agreement, in the
form attached hereto as EXHIBIT E (the "RIGHTS AMENDMENT"), duly executed by the
Company and First Chicago Trust Company.
(c) At or prior to the Closing, the Company and Purchaser will
deliver to each other such other supporting documents and certificates as the
other party may reasonably request.
(d) At or prior to the Closing, if Series D Preferred Stock
shall be issued on the Closing Date, the Series D Articles Supplementary shall
have been filed and accepted for record by the appropriate Maryland governmental
authority, and shall have become effective in accordance with the laws of the
State of Maryland.
1.5 USE OF PROCEEDS. The Company shall use the proceeds from
the issuance and sale of the Shares and the Common Stock issued in the Rights
Offering to pay indebtedness of the Company and for general working capital
purposes.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser, except as set
forth in the letter, dated the date hereof, from the Company to Purchaser
specifically referencing this Agreement and delivered prior to or simultaneously
with the execution of this Agreement and initialed by the parties hereto (the
"COMPANY DISCLOSURE LETTER"), as follows:
2.1 EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. The Company
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Maryland. The Company is duly licensed or qualified to
do business as a foreign corporation and is in good standing under the laws of
each state in which the character of the properties owned or leased by it or in
which the transaction of its business makes such qualification necessary, except
where the failure to be so qualified or to be in good standing would not have a
Company
3
Material Adverse Effect. The Company has all requisite corporate power and
authority to own, operate and lease its properties and carry on its business as
now conducted. The copies of the Company's Articles of Restatement, as amended
(the "CHARTER") and bylaws delivered to Purchaser on the Closing Date are true,
correct and complete. As used in this Agreement, the term "COMPANY MATERIAL
ADVERSE EFFECT" means any change, effect, event or condition that has had or
could reasonably be expected to (i) have a material adverse effect on the
business, results of operations or financial condition of the Company and its
Subsidiaries, taken as a whole, or (ii) prevent or materially delay the
Company's ability to consummate the transactions contemplated hereby; PROVIDED,
HOWEVER, that without waiving any representation, warranty or covenant in no
event will any of the following constitute a Company Material Adverse Effect:
(a) a change in the trading prices of any of the Company's securities, in and of
itself; (b) effects, changes, events, circumstances or conditions generally
affecting the long-term care or real estate finance industries or arising from
changes in general business or economic conditions, PROVIDED that the effect
thereof is not materially disproportionate on the Company and its Subsidiaries
than the effect on similarly situated companies; (c) effects, changes, events,
circumstances or conditions directly attributable to out-of-pocket fees and
expenses (including without limitation legal, accounting, investigatory,
investment banking and other fees and expenses) incurred in connection with the
transactions contemplated by the Transaction Documents; (d) any effects,
changes, events, circumstances or conditions resulting from the announcement or
pendency of any of the transactions provided for in the Transaction Documents;
(e) any effects, changes, events, circumstances or conditions resulting from
compliance by Purchaser or the Company with the terms of, or the taking of any
actions specifically required to be taken in, the Transaction Documents; (f) the
effect of the financial condition of any operator of any of the Company
Properties described in Section 2.1 of the Company Disclosure Letter; (g) the
effect of any operator of any of the Company Properties in bankruptcy
proceedings as of the date hereof rejecting leases to Company Properties or
Material Contacts; (h) the effect of any matters specifically disclosed in the
Company Disclosure Letter; and (i) the effect of the closure of any of the
securities exchanges on which the Company's securities are then traded for a
period of not more than four consecutive trading days. As used in this
Agreement, the term "SUBSIDIARY" (i) when used with respect to any Person, means
any corporation or other Person, whether incorporated or unincorporated, of
which such Person directly or indirectly owns or controls more than 50% of
4
the securities or other interests having by their terms ordinary voting power to
elect a majority of the board of directors or others performing similar
functions and (ii) when used with respect to the Company, shall also include
each of the following entities: (1) Bayside Street II, Inc., a Delaware
corporation, (2) Bayside Alabama Healthcare Second, Inc., an Alabama
corporation, (3) Bayside Arizona Healthcare Second, Inc., an Arizona
corporation, and (4) Bayside Colorado Healthcare Second, Inc., a Colorado
corporation.
2.2 AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENT. The
Company has the requisite corporate power and authority to execute and deliver
this Agreement and all agreements and documents contemplated hereby to be
executed and delivered by it. This Agreement and the consummation by the Company
of the transactions contemplated hereby have been duly authorized by all
requisite corporate action. This Agreement, the Stockholders Agreement, the
Registration Rights Agreement, the Bank Amendments, the Advisory Letter, the
Series D Articles Supplementary and the Rights Amendment (collectively, the
"TRANSACTION DOCUMENTS") have been (or, in the case of agreements to be
delivered at the Closing, will be at the Closing) duly and validly executed and
delivered by the Company and constitute (or, in the case of agreements to be
delivered at the Closing, will constitute at the Closing) the valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except that (i) such enforceability may be subject to
applicable bankruptcy, insolvency or other similar laws now or hereinafter in
effect affecting creditors' rights generally, (ii) the availability of the
remedy of specific performance or injunctive or other forms of equitable relief
may be subject to equitable defenses and would be subject to the discretion of
the court before which any proceeding therefor may be brought, and (iii) rights
to indemnification may be limited by public policy considerations.
2.3 CAPITALIZATION; RIGHTS AGREEMENT. (a) The authorized
capital stock of the Company consists of 100,000,000 shares of the Company's
common stock, par value $0.10 per share (the "COMMON STOCK"), 2,300,000 shares
of 9.25% Series A Preferred Stock, par value $1.00 per share (the "SERIES A
PREFERRED STOCK"), 2,000,000 shares of 8.625% Series B Preferred Stock, par
value $1.00 per share (the "SERIES B PREFERRED STOCK"), 2,000,000 shares of
Series C Convertible Preferred Stock, par value $1.00 per share (the "Series C
Preferred Stock"), and 100,000 shares of Series A Junior Participating Preferred
Stock, par value $1.00 per share. As of the close of
5
business on October 26, 2001 (the "MEASUREMENT DATE"), (i) 20,076,024 shares
of Common Stock were issued and outstanding, each of which was duly
authorized, validly issued, fully paid and nonassessable and issued free of
any preemptive rights, (ii) 2,300,000 shares of Series A Preferred Stock were
issued and outstanding, each of which was duly authorized, validly issued,
fully paid and nonassessable and issued free of any preemptive rights, (iii)
2,000,000 shares of Series B Preferred Stock were issued and outstanding,
each of which was duly authorized, validly issued, fully paid and
nonassessable and issued free of any preemptive rights, and (iv) 1,048,420
shares of Series C Preferred Stock were issued and outstanding, each of which
was duly authorized, validly issued, fully paid and nonassessable and issued
free of any preemptive rights. Section 2.3 of the Company Disclosure Schedule
set forth (i) the number of shares of Common Stock reserved for issuance
under the stock option plans listed in Section 2.3 of the Company Disclosure
Letter (the "STOCK OPTION PLANS"), (ii) the aggregate number of shares of
Common Stock underlying outstanding options under the Stock Option Plans as
more particularly described in Section 2.3 of the Company Disclosure Letter
(including the holders thereof, the expiration date, the exercise prices
thereof and the dates of grant), and (iii) the aggregate number of Deferred
Compensation Units issued and outstanding pursuant to the Company's 1993
Deferred Compensation Plan as of the close of business on October 26, 2001.
Since the Measurement Date, no additional shares of capital stock of the
Company have been issued and no other options, warrants or other rights to
acquire shares of the Company's capital stock (collectively, the "RIGHTS TO
ACQUIRE") have been granted. Except as described in the second preceding
sentence, the Company has no outstanding bonds, debentures, notes or other
securities or obligations the holders of which have the right to vote or
which are or were convertible into or exercisable for, voting securities,
capital stock or other equity ownership interests in the Company. Except as
set forth in Section 2.3 of the Company Disclosure Letter, there are not at
the date of this Agreement any existing options, warrants, calls,
subscriptions, convertible securities or other Rights To Acquire which
obligate the Company or any of its Subsidiaries to issue, exchange, transfer
or sell any shares of capital stock of the Company or any of its Subsidiaries
other than shares of Common Stock issuable under the Stock Option Plans or
awards granted pursuant thereto. There are no outstanding contractual or
legal obligations of the Company or any of its Subsidiaries (x) to
repurchase, redeem or otherwise acquire any shares of capital stock of the
Company or any of its Subsidiaries, or (y) to vote or to dispose of any
shares of the capital stock of any of its Subsidiaries. Except as
6
contemplated by this Agreement or the transactions contemplated hereby, none of
the Company or any of its Subsidiaries has any obligation to issue, transfer or
sell any shares of the capital stock or other securities of the Company or any
of its Subsidiaries.
(b) The Company has taken all necessary action so that neither
the execution, delivery and performance of the Transaction Documents nor the
consummation of the transactions contemplated hereby and thereby shall (i) cause
Purchaser or any of its Affiliates to become an "Acquiring Person" or (ii)
result in the occurrence of a "Triggering Event" or "Distribution Date" (as such
terms are defined in the Company Rights Agreement, dated as of May 12, 1999, as
amended on May 11, 2000 (the "COMPANY RIGHTS AGREEMENT"), between the Company
and First Chicago Trust Company, as rights agent). The board of directors of the
Company (the "COMPANY BOARD") has approved, and the Company has entered into,
the Rights Amendment. Pursuant to the Rights Amendment, among other things,
neither the execution, delivery and performance of the Transaction Documents nor
the consummation of the transactions contemplated hereby or thereby will (x)
result in the distribution of separate certificates representing Rights (as
defined in the Company Rights Agreement), (y) cause the Rights to become
exercisable, or (z) result in the occurrence of a "Triggering Event" or a
"Distribution Date" (as such terms are defined the Company Rights Agreement).
2.4 VALIDITY OF SHARES, ETC. Each of the Shares has been duly
authorized for issuance and, when issued to Purchaser for the consideration set
forth herein and as otherwise provided herein, will be duly and validity issued,
fully paid, non-assessable and free of preemptive rights. Upon issuance of the
Shares in accordance with the terms and conditions of this Agreement or upon
conversion (if applicable) of the Shares from time to time, Purchaser will
acquire good and valid title to such shares of Common Stock, free and clear of
any and all liens, claims, security interests, encumbrances, restrictions on
voting or alienation or otherwise, or adverse interests (collectively, "LIENS"),
except as may be created by Purchaser, the Transaction Documents or by
applicable securities Laws.
2.5 SUBSIDIARIES. Section 2.5 of the Company Disclosure Letter
lists all of the Subsidiaries of the Company. Each of the Company's Subsidiaries
is a corporation, partnership or limited liability company duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has the corporate, partnership or
7
similar power and authority to own its properties and to carry on its business
as it is now being conducted, and is duly qualified to do business and is in
good standing in each jurisdiction in which the ownership of its property or the
conduct of its business requires such qualification, except for jurisdictions in
which such failure to be so qualified or to be in good standing would not have a
Company Material Adverse Effect. The Company owns, directly or indirectly, all
of the outstanding shares of capital stock (or other ownership interests having
by their terms ordinary voting power to elect a majority of directors or others
performing similar functions with respect to such Subsidiary) of each of the
Company's Subsidiaries, free and clear of all Liens, except as set forth in
Section 2.5 of the Company Disclosure Letter. Each of the outstanding shares of
capital stock (or such other ownership interests) of each of the Company's
Subsidiaries is duly authorized, validly issued, fully paid and nonassessable.
2.6 OTHER INTERESTS. Except for interests in the Company's
Subsidiaries and as set forth in Section 2.6 of the Company Disclosure Letter,
neither the Company nor any of the Company's Subsidiaries owns, directly or
indirectly, any material interest or investment (whether equity or debt) in any
domestic or foreign corporation, company, partnership, joint venture, business,
trust or entity.
2.7 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) Except as
set forth in Section 2.7 of the Company Disclosure Letter, the execution,
delivery and performance of the Transaction Documents by the Company do not, and
the consummation by the Company of the transactions contemplated hereby and
thereby will not, (i) conflict with or violate the articles of incorporation or
bylaws or equivalent organizational documents of the Company or any of its
Subsidiaries, (ii) subject to the Company making any filings, notifications or
registrations and obtaining any approvals identified in Section 2.7(b), conflict
with or violate any domestic or foreign statute, rule, regulation or other legal
requirement ("LAW") or order, judgment, injunction or decree ("ORDER")
applicable to the Company or any of its Subsidiaries or by which any property or
asset of the Company or any of its Subsidiaries is bound or affected, or (iii)
result in any breach of or constitute a default (or an event which with or
without notice or lapse of time or both would become a default) under, result in
the loss of a material benefit under, or give to others any right of purchase or
sale, or any right of termination, amendment, acceleration, increased payments
or cancellation of, or result
8
in the creation of a Lien on any property or asset of the Company or any of its
Subsidiaries pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any property or asset of the Company or
any of its Subsidiaries is bound or affected, except, in the case of clauses
(ii) and (iii), for any such conflicts, violations, breaches, defaults, events,
losses, rights, payments, cancellations, encumbrances or other occurrences that,
individually or in the aggregate, would not have a Company Material Adverse
Effect, or (iv) result in the loss of the Company's status as a real estate
investment trust ("REIT") under Section 856 of the Internal Revenue Code of
1986, as amended (the "CODE").
(b) The execution, delivery and performance of the
Transaction Documents by the Company do not, and the consummation by the
Company of the transactions contemplated hereby and thereby will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or
foreign, including without limitation any quasi-governmental, supranational,
statutory, environmental entity and any stock exchange, court or arbitral
body (each a "GOVERNMENTAL ENTITY") under any Law, except (i) for (A)
applicable requirements, if any, under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR ACT"), (B) applicable
requirements, if any, of the Securities Act and the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT") and (C) the consents, approvals and
authorizations set forth in Section 2.7 of the Company Disclosure Letter, and
(ii) where the failure to obtain any such consent, approval, authorization or
permit, or to make any such filing or notification, would not, individually
or in the aggregate, have a Company Material Adverse Effect.
2.8 COMPLIANCE WITH LAWS. Except as set forth in Section 2.8
of the Company Disclosure Letter, neither the Company nor any of its
Subsidiaries is in conflict with, or in default or violation of, (a) any Law or
Order applicable to the Company or any of its Subsidiaries or by which any
property or asset of the Company or any of its Subsidiaries is bound or affected
(PROVIDED that no representation or warranty is made in this Section 2.8 with
respect to Environmental Laws) or (b) any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Company or any of its Subsidiaries is a party or by
9
which the Company or any of its Subsidiaries or any property or asset of the
Company or any of its Subsidiaries is bound or affected, and to the Knowledge of
the Company, neither the Company nor any of its Subsidiaries is under review or
investigation with respect to or has been threatened to be charged with or given
notice of any violation of any Law or Order, except in each case for such
conflicts, defaults, violations, reviews or investigations that would not,
individually or in the aggregate, have a Company Material Adverse Effect. The
Company and its Subsidiaries hold all licenses, permits, orders, registrations
and other authorizations ("PERMITS") and have taken all actions required by
applicable Law or regulations of any Governmental Entity in connection with
their business as now conducted, except where the failure to obtain any such
item or to take any such action would not, individually or in the aggregate,
have a Company Material Adverse Effect.
2.9 SEC DOCUMENTS. (a) The Company has timely filed all forms,
reports and documents required to be filed by it with the Securities and
Exchange Commission (the "SEC") since January 1, 1999 (collectively, the
"COMPANY REPORTS"). As of their respective dates, the Company Reports and any
such reports, forms and other documents filed by the Company with the SEC after
the date of this Agreement and until the Closing Date (i) complied, or will
comply, in all material respects with the applicable requirements of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), the Exchange Act and
the rules and regulations thereunder and (ii) did not, and will not, contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements made therein, in the light
of the circumstances under which they were made, not misleading. The
representation in clause (ii) of the preceding sentence does not apply to any
misstatement or omission in any Company Report filed prior to the date of this
Agreement which was superseded by a subsequent Company Report filed prior to the
date of this Agreement. No Subsidiary of the Company is required to file any
periodic reports with the SEC under the Exchange Act.
(b) Each of the financial statements included in or
incorporated by reference into the Company Reports (including the related notes
and schedules) (the "COMPANY FINANCIAL STATEMENTS") presents fairly, in all
material respects, the consolidated financial position of the Company and its
Subsidiaries as of its date and, to the extent applicable, the results of
operations, retained earnings or cash flows, as the
10
case may be, of the Company and its Subsidiaries for the periods set forth
therein (subject, in the case of unaudited statements, to normal year-end audit
adjustments, none of which will be material in amount), in each case in
accordance with United States generally accepted accounting principles
consistently applied ("GAAP") during the periods involved, except as may be
noted therein.
2.10 NO UNDISCLOSED MATERIAL LIABILITIES. There are no
material liabilities or obligations of the Company or any of its Subsidiaries of
any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise that would result in such a liability, other than (a)
liabilities or obligations disclosed in the Company Financial Statements or in
Section 2.10 of the Company Disclosure Letter and (b) liabilities or obligations
incurred in the ordinary course of business consistent with past practices since
July 1, 2001 that would not have, individually or in the aggregate, a Company
Material Adverse Effect.
2.11 LITIGATION. Except as disclosed in Section 2.11 of the
Company Disclosure Letter or such of the following as would not have a Company
Material Adverse Effect, and other than personal injury and other routine tort
litigation arising from the ordinary course of operations of the Company and its
Subsidiaries which are covered by adequate insurance, as of the date of this
Agreement, there are no actions, suits or proceedings pending, publicly
announced or, to the Knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries and there are no Orders of any
Governmental Entity outstanding against the Company or any of its Subsidiaries.
2.12 ABSENCE OF CERTAIN CHANGES. From July 1, 2001 through the
date of this Agreement, the Company and its Subsidiaries have conducted their
respective businesses in the ordinary course consistent with past practice and
there has not been any Company Material Adverse Effect.
2.13 TAXES. (a) Each of the Company and its Subsidiaries and
any consolidated, combined, unitary or aggregate group for tax purposes of which
the Company or any Subsidiary of the Company is or has been a member has timely
filed all Tax Returns required to be filed by it (after giving effect to any
extension properly granted by a Tax Authority having authority to do so) and has
timely paid (or the Company has timely paid on its behalf) all material Taxes
required to be paid by it (whether or not shown on such Tax Returns), except
11
Taxes that are being contested in good faith by appropriate proceedings and for
which the Company or the applicable Subsidiary of the Company shall have set
aside on its books adequate reserves.
(b) The Company (i) for all taxable years commencing with its
initial taxable year and through December 31, 2000 has been properly subject to
taxation as a REIT within the meaning of Section 856 of the Code and has
qualified as a REIT for such years, (ii) has operated since December 31, 2000 in
such a manner as to qualify as a REIT (determined without regard to the
dividends paid deduction requirements for the current year) for the taxable year
beginning January 1, 2001 determined as if the taxable year of the REIT ended as
of the Closing, and (iii) has not taken or omitted to take any action that would
result in loss of or a challenge to its status as a REIT, and no such challenge
is pending or, to the Company's Knowledge, threatened. The Company has complied,
and reasonably expects to continue complying, with the income qualification
tests set out in Section 856(c)(2) and (3) of the Code. Neither the Company nor
any Subsidiary has received, or reasonably expects to receive, any material rent
that does not qualify as "rents from real property" within the meaning of
Section 856(d) of the Code, including rent attributable to personal property
under Section 856(d)(1)(C), any contingent rent under Section 856(d)(2)(A) of
the Code, or any rent from a related-party tenant under Section 856(d)(2)(B) of
the Code. Neither the Company nor any Subsidiary has received, or reasonably
expects to receive, any contingent interest that does not qualify as "interest"
under Section 856(f) of the Code or any income from a shared appreciation
provision, as described under Section 856(j) of the Code, that is subject to the
prohibited transaction tax under Section 857(b)(6).
(c) For purposes of this Agreement, (i) "TAXES" means all
taxes, charges, fees, levies or other assessments imposed by any United States
Federal, state, or local taxing authority or by any non-U.S. taxing authority,
including, but not limited to, income, gross receipts, excise, property, sales,
use, transfer, payroll, license, ad valorem, value added, withholding, social
security, national insurance (or other similar contributions or payments),
franchise, estimated, severance, stamp, and other taxes (including any interest,
fines, penalties or additions attributable to or imposed on or with respect to
any such taxes, charges, fees, levies or other assessments), (ii) "TAX RETURN"
means any return, report, information return or other document (including any
related or supporting information and, where
12
applicable, profit and loss accounts and balance sheets) with respect to Taxes,
and (iii) "TAX AUTHORITY" shall mean the Internal Revenue Service and any other
domestic or foreign bureau, department, entity, agency or other Governmental
Entity responsible for the administration of any Tax.
2.14 PROPERTIES. (a) Except as would not have a Company
Material Adverse Effect, the Company or one of its Subsidiaries owns marketable
fee simple or leasehold title to, or a valid first priority mortgage Lien on,
all of the real properties identified as such in the Company Reports
(collectively with all buildings, structures and other improvements thereon, the
"COMPANY PROPERTIES" and each, collectively with all buildings, structures and
other improvements thereon, a "COMPANY PROPERTY").
(b) Each material certificate, permit or license from any
Governmental Entity having jurisdiction over any of the Company Properties and
each agreement, easement or other right which is necessary to permit the lawful
use and operation of the buildings and improvements on any of the Company
Properties or which is material to the operation of the property have been
obtained and are in full force and effect, except to the extent that the failure
to obtain or maintain any such certificate, permit, license, agreement, easement
or other right would not have a Company Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has received written notice of any violation
of any Law with respect to any of the Company Properties which, individually or
in the aggregate, would have a Company Material Adverse Effect.
2.15 CONTRACTS. Except as set forth in Section 2.15 of the
Company Disclosure Letter, neither the Company nor any of its Subsidiaries is in
breach or default under any material contract nor, to the Knowledge of the
Company, is any other party to any material contract in breach or default
thereunder, in either case except for such breaches and defaults of any material
contract, either individually or in the aggregate, that would not have a Company
Material Adverse Effect.
2.16 ENVIRONMENTAL MATTERS. (a) Except as disclosed in Section
2.16 of the Company Disclosure Letter and for such exceptions to any of the
following that, individually or in the aggregate, would not have a Company
Material Adverse Effect, (A) none of the Company nor any of its Subsidiaries nor
any other Person has caused or permitted (i) the presence of any Hazardous
Substances on any of the Company's Properties, (ii) any spills, releases,
discharges or disposal of Hazardous Substances to have
13
occurred or be presently occurring on or from the Company Properties as a result
of any construction on or operation and use of the Company Properties, (B) (i)
the Company and its Subsidiaries have complied with all applicable local, state
and federal Environmental Laws, including all regulations, ordinances and
administrative and judicial orders relating to the generation, sale, storage,
handling, transport and disposal of any Hazardous Substances, (ii) the Company
and its Subsidiaries have obtained, currently maintain and, as currently
operating are in compliance with, all Permits necessary under any Environmental
Law ("ENVIRONMENTAL PERMITS") for the conduct of the business and operations of
the Company and its Subsidiaries in the manner now conducted, and, to the
Knowledge of the Company, there are no actions or proceedings pending or
threatened to revoke or materially modify such Permits; (iii) no Hazardous
Substances have been used, stored, manufactured, treated, processed or
transported to or from any such Company Property by the Company and its
Subsidiaries or any other Person, except as necessary to the customary conduct
of business and in compliance with Law and in a manner that does not result in
any material liability under applicable Environmental Laws; and (iv) the Company
and its Subsidiaries have not received any written notice of potential
responsibility, letter of inquiry or written notice of alleged liability from
any Person regarding such Company Property or the business conducted thereon.
For the purposes of this Section 2.16 only, "COMPANY PROPERTIES" shall be deemed
to include all property formerly owned, operated or leased by the Company or its
current or former Subsidiaries, solely, however, as to the period of time when
such property was so owned, operated or leased by the Company or its current or
former Subsidiaries.
(b) For purposes of this Agreement, the term (i)
"ENVIRONMENTAL LAWS" means any national, federal, state or local Law (including,
without limitation, common law), Order, Permit or any agreement with any
Governmental Entity or other third party (whether domestic or foreign) relating
to: (A) releases or threatened releases of Hazardous Substances or materials
containing Hazardous Substances; (B) the manufacture, processing, distribution,
handling, transport, use, treatment, storage or disposal of Hazardous Substances
or materials containing Hazardous Substances; or (C) pollution of the
environment, and (ii) "HAZARDOUS SUBSTANCES" means: (A) those materials,
pollutants and/or substances defined in or regulated under the following federal
statutes and their state counterparts, as each may be amended from time to time,
and all regulations thereunder: the Hazardous Materials Transportation
14
Act of 1980, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Clean Water Act, the
Safe Drinking Water Act, the Atomic Energy Act, the Federal Insecticide,
Fungicide and Rodenticide Act, the Toxic Substances Control Act and the Clean
Air Act; (B) petroleum and petroleum products including crude oil and any
fractions thereof; (C) natural gas, synthetic gas and any mixtures thereof; (D)
radon; (E) asbestos; (F) any other contaminant; and (G) any materials,
pollutants and/or substance with respect to which any Governmental Entity
requires environmental investigation, monitoring, reporting or remediation.
2.17 COMPANY BENEFIT PLANS; ERISA COMPLIANCE. (a) Each Company
Benefit Plan has been administered in accordance with its terms, all applicable
Laws, including ERISA and the Code, except to the extent that the failure to so
administer the applicable plan would not have a Company Material Adverse Effect.
All contributions to, and payments from, each Company Benefit Plan and "multiple
employer plan" (within the meaning of Section 3(40) of ERISA) that are required
to be made in accordance with such Plans and applicable Laws (including ERISA
and the Code) have been timely made.
(b) Except as set forth on Section 2.17(b) of the Company
Disclosure Letter, the consummation of the transactions contemplated by this
Agreement will not, either alone or in combination with another event, (i)
entitle any current or former employee, officer or director of the Company to
severance pay, unemployment compensation or any other payment or (ii) accelerate
the time of payment or vesting, or increase the amount of compensation, equity
rights or benefits due any such employee, officer or director.
(c) The execution, delivery or performance of the transactions
contemplated by the Transaction Documents does not constitute a "Change in
Control" under the employment agreements, incentive stock option or nonqualified
stock option agreements of any of the Company's officers (such agreements, the
"COMPANY CHANGE IN CONTROL AGREEMENTS"). The Compensation Committee of the
Company Board has taken all appropriate action to confirm that none of the
issuance of the Shares to Purchaser, the issuance of shares of Common Stock to
Purchaser upon conversion (if applicable) of the Shares or the execution and
delivery by the Company of any of the Transaction Documents shall result in any
adjustment pursuant to Section 5.2 of the Company's 2000 Stock Incentive Plan.
15
(f) "COMPANY BENEFIT PLAN" means each compensation, bonus,
pension, profit sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, stock option or other stock related fringe benefit,
retirement, vacation, disability, death benefit, supplemental unemployment
benefits, hospitalization, medical, dental, life, severance, post-employment
benefits or other plan, agreement, arrangement, policies or understanding, or
employment severance, retention, consulting, change of control or similar
agreement whether formal or informal, oral or written, providing benefits to any
current or former employee, officer, director or shareholder of the Company or
any of its Subsidiaries or to which the Company or any of its Subsidiaries
contributes or is or was obligated to contribute.
2.18 NO BROKERS. The Company has not entered into any
contract, arrangement or understanding with any Person or firm which may result
in the obligation of the Company or Purchaser to pay any investment banker's or
finder's fees, brokerage or agent's commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the transactions contemplated hereby, except that the Company has retained
Shattuck Hammond Partners LLC as its financial advisor (the "FINANCIAL
ADVISOR"), the arrangements with which have been disclosed to Purchaser prior to
the date hereof. The Company will pay all amounts owed pursuant to the foregoing
arrangements.
2.19 PROXY AND REGISTRATION STATEMENT. The proxy statement (as
amended or supplemented, the "PROXY STATEMENT") to be mailed to the holders of
Common Stock of the Company (the "COMPANY STOCKHOLDERS") in connection with the
meeting of the Company Stockholders (the "COMPANY STOCKHOLDERS MEETING") to
approve (i) the issuance to Purchaser of shares of Common Stock upon the
conversion of the Series D Preferred (including any change in control resulting
therefrom), (ii) the amendment of the Company's Charter and Bylaws to increase
the size of the Board that may be authorized to eleven members, and (iii) the
amendment to the terms of the Series C Preferred contemplated by the Amended
Series C Articles Supplementary (the matters to be considered for approval, the
"STOCKHOLDER APPROVAL MATTERS" and such approval, the "STOCKHOLDER APPROVAL"),
and the registration statement to be mailed to the Company Stockholders in
connection with the Rights Offering (as amended or supplemented, the
"REGISTRATION STATEMENT"), at the date mailed to the Company Stockholders and at
the time of the Company Stockholders Meeting, in the case of the Proxy
Statement, and on the
16
effective date of the Registration Statement, on the date mailed to the Company
Stockholders, and on the date of closing of the Rights Offering, in the case of
the Registration Statement, (i) will comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and the rules
and regulations thereunder and (ii) will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
2.20 FAIRNESS OPINION. The Company has received the opinion of
the Financial Advisor, dated October 29, 2001, to the effect that, as of such
date, the Financial Terms of the Investment Agreement (as defined in the
Financial Advisor's opinion), taken as a whole, are fair to the Company from a
financial point of view, a signed copy of which has been delivered to Purchaser.
2.21 VOTING REQUIREMENTS. The affirmative vote of no more than
the holders of a majority of the issued and outstanding shares of Common Stock
(giving effect to the conversion of the Series C Preferred), voting as a single
class, at the Company Stockholders Meeting to approve the Stockholder Approval
Matters (the "COMPANY STOCKHOLDER APPROVAL"), is the only vote of the holders of
any class or series of the Company's capital stock necessary to approve the
transactions contemplated hereby.
2.22 STATE TAKEOVER STATUES. The limitations on "business
combinations" (as defined in Subtitle 6 of Title 3 of the Maryland General
Corporation Law ("MGCL")) and the Charter and the limitations on voting rights
of shares of stock acquired in a "control share acquisition" (as defined in
Subtitle 7 of Title 3 of the MGCL) are not applicable to the transactions
contemplated hereby. There is no other provision of the MGCL or the Company's
bylaws or Charter under which special voting or waiting period requirements
would become applicable, or Purchaser would not have rights possessed by other
stockholders, had the Company issued to Purchaser all Shares and shares of
Common Stock upon conversion of the Shares (if applicable) prior to the date
hereof.
2.23 STATEMENTS TRUE AND CORRECT. The representations made by
the Company pursuant to this Agreement and the Company Disclosure Letter do not
contain as of the date hereof any untrue statement of material fact or omit to
state a material
17
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
III. REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Purchaser represents and warrants to the Company as follows:
3.1 EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Purchaser
is a limited partnership duly formed, validly existing and in good standing
under the laws of the State of Delaware. Purchaser is duly licensed or qualified
to do business as a limited partnership and is in good standing in each
jurisdiction in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary,
except where the failure to be so qualified or to be in good standing would not
have a Purchaser Material Adverse Effect. A "PURCHASER MATERIAL ADVERSE EFFECT"
means any change, effect, event or condition that has had or could reasonably be
expected to (i) have a material adverse effect on the business, results of
operations or financial condition of Purchaser and its Subsidiaries, taken as a
whole, PROVIDED, HOWEVER, that no event referred to in clauses (b), (c), (d) or
(e) of the proviso to the definition of Company Material Adverse Effect will, as
applied to Purchaser, constitute a Purchaser Material Adverse Effect, or (ii)
prevent or materially delay Purchaser's ability to consummate the transactions
contemplated hereby. Purchaser has all requisite limited partnership power and
authority to own, operate and lease its properties and carry on its business as
now conducted.
3.2 AUTHORIZATION, VALIDITY AND EFFECT OF TRANSACTION
DOCUMENTS. Purchaser has all requisite limited partnership power and authority
to execute and deliver the Transaction Documents to be executed by it. Each
Transaction Document to which Purchaser is a party and the consummation by
Purchaser of the transactions contemplated hereby and thereby have been duly and
validly authorized by the general partner of Purchaser and the applicable
governing body of Purchaser's general partner, and no other action on the part
of Purchaser or Purchaser's general partner is necessary to authorize such
Transaction Documents or to consummate the transactions contemplated hereby or
thereby. All Transaction Documents executed and delivered by Purchaser
constitute the valid and binding obligations of Purchaser, enforceable against
it in accordance with their respective terms, except that (i) the enforceability
hereof and thereof may be subject to applicable bankruptcy, insolvency or other
similar laws now or hereinafter in effect affecting
18
creditors' rights generally, (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought, and (iii) rights to
indemnification may be limited by public policy considerations.
3.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution, delivery and performance of each Transaction Document to which
Purchaser is a party do not, and the consummation by Purchaser of the
transactions contemplated hereby and thereby will not, (i) conflict with or
violate the articles of incorporation, bylaws or other similar constituent
documents of Purchaser or any of its Subsidiaries, (ii) subject to Purchaser
making any filings, notifications or registrations and obtaining any approvals,
consents or authorizations identified in Section 3.3(b), conflict with or
violate any Law or Order applicable to Purchaser or any of its Subsidiaries or
by which any property or asset of Purchaser or any of its Subsidiaries is bound
or affected, or (iii) result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
result in the loss of a material benefit under, or give to others any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a Lien on any property or asset of Purchaser or any of
its Subsidiaries pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Purchaser or any of its Subsidiaries is a party or by which Purchaser
or any of its Subsidiaries or any property or asset of Purchaser or any of its
Subsidiaries is bound or affected, except in the case of clauses (ii) and (iii),
for any such conflicts, violations, breaches, defaults, events, losses, rights,
payments, cancellations, encumbrances or other occurrences that would not,
individually or in the aggregate, have a Purchaser Material Adverse Effect.
(b) The execution, delivery and performances of each
Transaction Document to which Purchaser is a party do not, and the consummation
of the transactions contemplated hereby and thereby by it will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity, except for (A) applicable requirements, if any, of
the Securities Act and the Exchange Act and (B) where failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not,
19
individually or in the aggregate, have a Purchaser Material Adverse Effect.
3.4 NO BROKERS. Purchaser has not entered into any contract,
arrangement or understanding with any Person or firm which may result in the
obligation of the Company or any Subsidiary of the Company to pay any investment
banker's or finder's fees, brokerage or agent's commissions or other like
payments in connection with the negotiations leading to this Agreement or the
consummation of the transactions contemplated hereby, any such amounts to be the
sole liability of Purchaser.
3.5 PROXY AND REGISTRATION STATEMENT. None of the information
provided by Purchaser or its officers, directors, representatives, agents or
employees specifically for inclusion in the Proxy Statement or the Registration
Statement will, in the case of the Proxy Statement, on the date the Proxy
Statement is first mailed to the Company Stockholders or at the time of the
Company Stockholders Meeting, and, in the case of the Registration Statement, on
the effective date of the Registration Statement, on the date mailed to the
Company Stockholders, and on the date of closing of the Rights Offering contain
any untrue statement of a material fact, or will omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3.6 SUFFICIENT FUNDS. Purchaser will have sufficient funds
available to (a) pay all amounts required to be paid pursuant to this Agreement
when due and (b) pay all nonreimbursable fees, costs and expenses incurred by
Purchaser in connection with this Agreement and the transactions contemplated
herein.
3.7 INVESTMENT INTENT. Purchaser is purchasing the Shares to
be purchased by it for its own account and for investment purposes, and does not
intend to redistribute the Shares (except in a transaction or transactions
exempt from registration under the federal and state securities laws or pursuant
to an effective registration statement under such laws). Purchaser acknowledges
that the Shares have not been registered under the Securities Act or any state
blue sky or securities Laws and that the transfer of the Shares may be subject
to compliance with such Laws (in addition to the restrictions set forth in the
Stockholders Agreement). As of the date hereof, Purchaser has no present
intention to transfer the Shares.
20
3.8 INVESTOR SOPHISTICATION; ETC. Purchaser is an "accredited
investor" as defined in Regulation D under the Securities Act, has such
knowledge and experience in financial business matters that it is capable of
evaluating the merits and risks of an investment in the Shares, and, without
limiting the scope or effect of any of the representations and warranties of the
Company in Article II or Purchaser's indemnification rights under Article VI,
has had access to such information as it has deemed necessary in order to
formulate an informed decision to purchase the Shares. Purchaser is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
IV. COVENANTS
-------------
4.1 FILINGS, REASONABLE EFFORTS. Upon the terms and subject to
the conditions set forth in this Agreement, each of the parties will use all
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement, including without limitation (i) obtaining of
all necessary actions or nonactions, waivers, consents and approvals from
Governmental Entities and making of all necessary registrations and filings
(including filings with Governmental Entities) and taking of all reasonable
steps as may be necessary to obtain an approval or waiver from, or to avoid an
action or proceeding by, any Governmental Entity, (ii) obtaining, in writing, of
all necessary consents, approvals or waivers from third parties in form
reasonably satisfactory to Purchaser, and (iii) executing and delivering any
additional instruments necessary to consummate the transactions contemplated by,
and to fully carry out the purposes of, this Agreement.
4.2 PUBLICITY. The initial press release relating to this
Agreement will be in the form of a joint press release previously agreed between
Purchaser and the Company and thereafter the Company and Purchaser will, subject
to their respective legal obligations (including requirements of stock exchanges
and other similar regulatory bodies), consult with each other, and use
reasonable efforts to agree upon the text of any press release, before issuing
any such press release or otherwise making public statements with respect to the
transactions contemplated hereby and in making any filings with any Governmental
Entity or with any national securities exchange with respect thereto.
21
4.3 PROXY STATEMENT. The Company will promptly prepare the
Proxy Statement and file it with the SEC as soon as practicable after the date
hereof and will use its commercially reasonable best efforts to have the Proxy
Statement cleared by the SEC within 75 calendar days after the date of filing
and promptly thereafter will mail the Proxy Statement to the Company
Stockholders in order for the Company Stockholders Meeting to occur within 90
calendar days after the date hereof. Purchaser will use its commercially
reasonable best efforts to cooperate with the Company in the preparation and
finalization of the Proxy Statement. Any Proxy Statement will disclose the
recommendation of the Company Board as of the date hereof that the Company
Stockholders approve the Stockholder Approval Matters. The Company agrees not to
mail the Proxy Statement to the Stockholders until Purchaser confirms that the
information provided by Purchaser continues to be accurate. If at any time prior
to the Company Stockholders Meeting any event or circumstance relating to the
Company or any of its Subsidiaries or Affiliates, or its or their respective
officers or directors, should be discovered by the Company that is required to
be set forth in a supplement to any Proxy Statement, the Company will inform
Purchaser, supplement such Proxy Statement and mail such supplement to the
Company Stockholders. The Company will promptly advise the Purchaser of any oral
or written comments to the Proxy Statement from the SEC or the issuance of any
stop order with respect to the Proxy Statement. The Company will provide the
Purchaser and its counsel with a reasonable opportunity to review and comment on
the Proxy Statement and any amendment or supplement thereto prior to filing such
with the SEC, and will provide the Purchaser with a copy of all such filings
made with the SEC.
4.4 NYSE LISTING. The Company will use its best efforts to
cause the shares of the Common Stock to be issued hereunder or upon the
conversion of the Series D Preferred Stock, if applicable, and the shares of
Common Stock to be issued in the Rights Offering to be approved for listing on
The New York Stock Exchange ("NYSE"), subject to official notice of issuance.
4.5 COMPANY STOCKHOLDERS MEETING. (a) The Company will take
all action necessary in accordance with applicable Law and its Charter and
bylaws to duly call, give notice of, convene and hold a special meeting of the
Company Stockholders as promptly as practicable (but in no event later than 90
calendar days after the date hereof) and to include for consideration and vote
at the Company Stockholders Meeting the Stockholder
22
Approval Matters. The Company Board will recommend approval of the Stockholder
Approval Matters and the Company will take all lawful action to solicit such
approval, including without limitation timely mailing of the Proxy Statement. In
the event the Stockholder Approval Matters are not approved at the Company
Stockholders Meeting, the Company will (i) use reasonable efforts to obtain as
promptly as practicable a waiver from the NYSE of Stockholder Approval of the
conversion of the Series D Preferred Stock into Common Stock and (ii) if such
waiver is not obtained prior to March 1, 2002, convene and hold a meeting of the
Company Stockholders at least one time during each six month period commencing
on the date of the first Company Stockholders Meeting and include for
consideration and vote at such Company Stockholders Meeting, and recommend
approval of, the Stockholder Approval Matters until such matters have been
approved in accordance with the rules and regulations of NYSE.
(b) Purchaser will, and will cause its Affiliates and any
other entity that becomes an assignee of any voting securities of the Company
owned by Purchaser or its Affiliates to, vote such securities in favor of the
Stockholder Approval Matters at each meeting of the Company Stockholders in
which such matters are considered.
4.6 REIT-RELATED MATTERS. (a) The Company will take such
further actions and engage in such further transactions as Purchaser reasonably
requests to preserve the Company's status as a REIT under the Code (including
with respect to the period following the Closing Date) and to avoid the payment
of any Taxes under Sections 857(b), 859(f), 860(c) or 4981 of the Code. The
Company will not make or rescind any express or deemed election relative to
Taxes (unless required by Law or necessary to preserve the Company's status as a
REIT or the status of any Subsidiary as a partnership for federal income Tax
purposes or as a qualified REIT subsidiary under Section 856(i) of the Code, as
the case may be).
(b) The Company Board will take no action that would render
Section 4 of Article V of the Charter applicable to, and will not exercise any
right provided under such section with respect to, Purchaser or to the
transactions contemplated by the Transaction Documents.
(c) Purchaser will take such actions as may be required to
ensure that Purchaser's manner of holding ownership of the Company's securities
will not cause REIT disqualification under Section 856(a)(6) of the Code and
will not cause more than 9.9% of the value of the Company's securities to be
owned,
23
directly or indirectly, by an individual as determined under the REIT provisions
of the Code, including Section 544 of the Code.
4.7 RIGHTS OFFERING. (a) As promptly as practical after the
date hereof, the Company shall establish a record date (the "RECORD DATE") for
the distribution to all holders of Common Stock as of the Record Date a right
(the "RIGHT") to purchase shares of Common Stock on the terms set forth on
EXHIBIT G hereto (such offering, the "RIGHTS OFFERING"). The Company will
promptly prepare the Registration Statement and file it with the SEC as soon as
practicable after the date hereof and will use its commercially reasonable best
efforts to have the Registration Statement cleared by the SEC within 30 calendar
days after the date of filing and promptly thereafter will mail the prospectus
included as part of such Registration Statement to the Company Stockholders as
of the Record Date.
4.8 FURTHER ACTION. Each of the parties hereto will use all
commercially reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things reasonably necessary, proper or
advisable under applicable law, and execute and deliver such documents and other
papers, as may be required to carry out the provisions of the Transaction
Documents and consummate and make effective the transactions contemplated hereby
and thereby.
4.9 OTHER MATTERS. The Company will use all reasonable efforts
to arrange for the signature of the Rights Amendment by First Chicago Trust
Company as soon as practicable after the date hereof. Promptly after the receipt
of Stockholder Approval with respect to the Amended and Restated Series C
Articles Supplementary in the form attached hereto as EXHIBIT F (the "AMENDED
SERIES C ARTICLES SUPPLEMENTARY"), the Company will cause the Amended Series C
Articles Supplementary to be filed and accepted for record by the appropriate
Maryland governmental authority. Notwithstanding anything in the Amended Series
C Articles Supplementary or any of the other Transaction Documents to the
contrary, the letter agreement, dated January 31, 2001, between Purchaser and
the Company shall remain in full force and effect, and all references therein to
the Articles Supplementary for the Series C Preferred Stock shall include the
Amended Series C Articles Supplementary.
4.10 NO PARTICIPATION IN RIGHTS OFFERING OR ADJUSTMENT TO
SERIES C PREFERRED. Purchaser agrees that, notwithstanding anything to the
contrary in the Articles Supplementary for the Series C Preferred Stock, (i)
Purchaser shall not be entitled to any dividend distributed in the Rights
Offering in respect of
24
its Series C Preferred Stock and (ii) there shall be no adjustment to the
conversion price of the Series C Preferred Stock as a result of the declaration
of a dividend, or distribution or exercise of Rights, in the Rights Offering.
V. CONDITIONS TO CLOSING
------------------------
5.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective
obligations of each party to consummate the transactions contemplated by this
Agreement are subject to there not being in effect on the Closing Date any Order
or Law enacted, entered, promulgated, enforced or issued by any court of
competent jurisdiction or other Governmental Entity or other legal restraint or
prohibition preventing the consummation of the transactions contemplated by this
Agreement (a "GOVERNMENTAL RESTRAINT").
5.2 CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to consummate the transactions contemplated by this Agreement are
subject to the satisfaction or waiver, at or prior to the Closing of each of the
following conditions:
(a) LITIGATION. No action, suit or proceeding shall have been
commenced or threatened in writing by or before any court or other Governmental
Entity against Purchaser, the Company or any of their respective Affiliates,
seeking to restrain or materially and adversely alter the transactions
contemplated hereby or by the other documents contemplated hereby, which (i) is
reasonably likely to render it impossible or unlawful to consummate the
transactions contemplated hereby or thereby, or (ii) in the good faith judgment
of Purchaser could reasonably be expected to have a Company Material Adverse
Effect or materially limit or restrict the rights of the Purchaser under the
Transaction Documents.
(b) RIGHTS AMENDMENT. The Rights Amendment shall continue to
be in effect and no "Triggering Event," "Distribution Date" or "Stock
Acquisition Date" shall have occurred pursuant to and as defined in the Company
Rights Agreement.
(c) BANK AGREEMENTS. Fleet Bank, N.A. and The Provident Bank
shall have (i) entered into amendments to their respective loan agreements with
the Company on terms and conditions satisfactory to each of Purchaser and the
Company in their respective sole discretion, (ii) waived any and all
then-existing covenant defaults, as well as the waiver of the right
25
to assert a default or give notice of an event which, with the giving of notice
and/or the passing of time, could become an event of default under such
agreements, and (iii) with respect to Fleet, extended the current maturity date
of its loan by not less than 12 months (such agreements, the "BANK AGREEMENTS").
Each of the conditions set forth in this Section 5.2 shall be deemed satisfied,
without any further action by the Company or Purchaser, upon the closing of the
Rights Offering (provided that the Closing Condition described in EXHIBIT G has
been satisfied).
VI. INDEMNIFICATION
-------------------
6.1 INDEMNIFICATION OF PURCHASER. (a) RIGHT OF
INDEMNIFICATION. Subject to the terms of this Article VI, the Company covenants
and agrees to indemnify and hold harmless each of Purchaser and its Affiliates
and their respective partners, members, officers, directors, employees,
attorneys, advisors and agents controlling, and any person or entity
controlling, controlled by or under common control with, any of the foregoing
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, including without limitation The Hampstead Group, L.L.C. and
its Affiliates (collectively, the "INDEMNIFIED PARTIES"), from and against all
losses, claims, liabilities, damages, costs (including without limitation costs
of preparation and reasonable attorneys' fees and charges) and reasonable
expenses (including without limitation expenses incurred in connection with
investigating, preparing or defending any action, claim or proceeding, whether
or not in connection with pending or threatened litigation in which any
Indemnified Party is a party) or actions in respect thereof suffered by any
Indemnified Party, directly or indirectly, arising out of (i) any inaccuracy in
or breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement or in any other document contemplated
hereby or (ii) any actual or threatened claim against such Indemnified Party by
a person or entity related to or arising out of or in connection with any
Transaction Document or any actions taken by any Indemnified Party pursuant
hereto or thereto or in connection with the transactions contemplated hereby or
thereby (whether or not the transactions contemplated hereby or thereby are
consummated) (collectively, "LOSSES").
(b) LOSSES. The Company will not be liable to any Indemnified
Party for any Losses to the extent, but only to the extent, that it is finally
judicially determined by a court of competent jurisdiction (which determination
is not subject to
26
appeal) that such Losses resulted primarily from (i) such Indemnified Party's
breach of this Agreement, (ii) a misstatement or omission contained in a report
filed by such Indemnified Party pursuant to the Exchange Act, the Securities Act
or any other Law unless such misstatement or omission relates to information
furnished or confirmed by or on behalf of the Company, or (iii) a misstatement
or omission contained in a report filed by the Company pursuant to the Exchange
Act, the Securities Act or any other Law based on information furnished in
writing by the Indemnified Party to the Company expressly for use therein. The
indemnification provisions of this Section 6.1 are expressly intended to cover
Losses relating to an Indemnified Party's own negligence. The Company will
promptly reimburse each Indemnified Party for all such Losses as they are
incurred. If the foregoing indemnity is unavailable to any Indemnified Party or
insufficient to hold any Indemnified Party harmless, then the Company will
contribute to the amount paid or payable by such Indemnified Party as a result
of such Loss in such proportion as is appropriate to reflect the relative fault
of the Company, on the one hand, and such Indemnified Party, on the other, as
well as any other relevant equitable considerations. The relative fault of the
Company, on the one hand, and any Indemnified Party, on the other, will be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been taken by, or relates to
information supplied by, the Company or such Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent any such action, statement or omission. The amount paid or payable by a
party as a result of any Losses will be deemed to include any reasonable legal
or other fees or expenses incurred by such party in connection with any action,
suit or proceeding. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this paragraph were determined by prorata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to above. No person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(c) THRESHOLD. No Indemnified Party will be entitled to
indemnification pursuant to this Section 6.1 with respect to any Losses in
respect of breaches of representations and warranties until the aggregate amount
of all such Losses
27
suffered by Indemnified Parties in the aggregate exceeds $500,000 (the
"THRESHOLD"), whereupon Indemnified Parties will be entitled to indemnification
pursuant to this Section 6.1 from the Company for the full amount of all such
Losses suffered by Indemnified Parties (regardless of the Threshold) up to an
aggregate total amount of the Unsubscribed Purchase Amount (the "CAP"). The
foregoing provision of this Section 6.1(c) notwithstanding, the Threshold and
the Cap will not apply with respect to any Loss or Losses relating directly or
indirectly to claims of any nature whatsoever (i) relating to, resulting from or
arising out of any breach of any covenant or agreement made by the Company in
this Agreement or in any Transaction Documents or (ii) against any Indemnified
Party or Parties made by or on behalf of any director or officer of the Company
or any of its Subsidiaries.
(d) SURVIVAL. No Indemnified Party will be entitled to give a
Notice of Claim with respect to any actual or alleged breach of any
representation or warranty herein after the second anniversary of the date of
the Closing.
6.2 PROCEDURE FOR CLAIMS. (a) NOTICE OF CLAIM. After obtaining
knowledge of any claim or demand which has given rise to, or could reasonably
give rise to, a claim for indemnification under this Article VI (referred to
herein as an "INDEMNIFICATION CLAIM"), an Indemnified Party will be required to
give written notice to the Company of such Indemnification Claim ("NOTICE OF
CLAIM"). A Notice of Claim will be given with respect to all Indemnification
Claims, whether or not the Threshold has been reached; PROVIDED, HOWEVER, that
the failure to give Notice of Claim to the Company will not relieve the Company
from any liability that it may have to an Indemnified Party hereunder to the
extent that the Company is not prejudiced by such failure. The Notice of Claim
will be required to set forth the amount (or a reasonable estimate) of the Loss
or Losses suffered, or which may be suffered, by an Indemnified Party as a
result of such Indemnification Claim, whether or not the Threshold has been
reached, and a brief description of the facts giving rise to such
Indemnification Claim. The Indemnified Party will furnish to the Company such
information (in reasonable detail) it may have with respect to such
Indemnification Claim (including copies of any summons, complaint or other
pleading which may have been served on it and any written claim, demand,
invoice, billing or other document evidencing or asserting the same).
(b) THIRD PARTY CLAIM. (i) If the claim or demand set forth in
the Notice of Claim is a claim or demand asserted
28
by a third party (a "THIRD PARTY CLAIM"), the Company will have 15 calendar days
after the date of receipt by the Company of the Notice of Claim (the "NOTICE
DATE") to notify the Indemnified Parties in writing of the election by the
Company to defend the Third Party Claim on behalf of the Indemnified Parties,
PROVIDED, HOWEVER, that the Company will be entitled to assume the defense of
any such Third Party Claim only if it unconditionally and irrevocably undertakes
to indemnify all Indemnified Parties in respect thereof (subject to any
applicable limitations set forth in Section 6.1).
(ii) If the Company elects to defend a Third Party Claim on
behalf of the Indemnified Parties, the Indemnified Parties will make available
to the Company and their agents and representatives all records and other
materials in their possession which are reasonably required in the defense of
the Third Party Claim, and the Company will pay all expenses payable in
connection with the defense of the Third Party Claim as they are incurred
(subject to any applicable limitations set forth in Section 6.1).
(iii) In no event may the Company settle or compromise any
Third Party Claim without the Indemnified Parties' consent, which may not be
unreasonably withheld, PROVIDED, HOWEVER, that if a settlement is presented by
the Company to the Indemnified Parties for approval and the Indemnified Parties
withhold their consent thereto, then any amount by which the final Losses
(including reasonable attorneys' fees and charges) resulting from the resolution
of the matter exceeds the sum of the rejected settlement amount plus attorneys'
fees incurred to such date will be excluded from the amount covered by the
indemnification provided for in this Agreement and shall be borne by the
Indemnified Parties.
(iv) If the Company elects to defend a Third Party Claim, the
Indemnified Parties will have the right to participate in the defense of the
Third Party Claim, at the Indemnified Parties' expense (and without the right to
indemnification for such expense under this Agreement), PROVIDED, HOWEVER, that
the reasonable fees and expenses of counsel retained by the Indemnified Parties
will be at the expense of the Company if (A) the use of the counsel chosen by
the Company to represent the Indemnified Parties would present such counsel with
a conflict of interest; (B) the parties to such proceeding include both
Indemnified Parties and the Company and there may be legal defenses available to
Indemnified Parties which are different from or additional to those available to
the Company; (C) within 10 calendar days after being advised by the
29
Company of the identity of counsel to be retained to represent Indemnified
Parties, they shall have objected to the retention of such counsel for valid
reasons (which shall be stated in a written notice to the Company), and the
Company shall not have retained different counsel satisfactory to the
Indemnified Parties; or (D) the Company shall have authorized the Indemnified
Parties to retain a single separate counsel at the expense of the Company, such
authorization to be made by the directors who are not designees of Purchaser or
its Affiliates.
(v) If the Company does not elect to defend a Third Party
Claim, or does not defend a Third Party Claim in good faith, the Indemnified
Parties will have the right, in addition to any other right or remedy it may
have hereunder, at the sole and exclusive expense of the Company, to defend such
Third Party Claim.
(c) COOPERATION IN DEFENSE. The Indemnified Parties will
cooperate with the Company in the defense of a Third Party Claim and make
reasonably available the facts relating to the Third Party Claim. Subject to the
foregoing, (i) no Indemnified Party will have any obligation to participate in
the defense of or to defend any Third Party Claim and (ii) no Indemnified
Parties' defense of, or their participation in, the defense of any Third Party
Claim will in any way diminish or lessen their right to indemnification as
provided in this Agreement.
6.3 INDEMNIFICATION OF THE COMPANY. Purchaser will indemnify
and hold harmless the Company and its current and future officers, directors,
employees and agents from and against all Losses suffered by any of them as a
result of any inaccuracy in or breach of any of the representations, warranties
or covenants made by Purchaser hereunder. The procedures for and limits on
indemnification in respect of the obligations of Purchaser under this Section
6.3 will be the same as those set forth in Section 6.1 and 6.2.
6.4 NON-EXCLUSIVITY OF INDEMNIFICATION. The rights of any
Indemnified Party hereunder will not be exclusive of the rights of any
Indemnified Party under any other agreement or instrument to which the Company
is a party. Nothing in such other agreement or instrument will be interpreted as
limiting or otherwise adversely affecting an Indemnified Party's rights
hereunder and nothing in this Agreement will be interpreted as limiting or
otherwise adversely affecting the Indemnified Party's rights under any such
other agreement or instrument; PROVIDED, HOWEVER, that no Indemnified Party will
be entitled hereunder to recover more than its indemnified Losses. The
30
indemnity, contribution and expense reimbursement obligation of the Company in
this Agreement will be in addition to any liability the Company may otherwise
have. The obligations of the Company to each Indemnified Party will be separate
obligations, and the liability of the Company to any Indemnified Party will not
be extinguished solely because any other Indemnified Party is not entitled to
indemnity or contribution hereunder.
6.5 SURVIVAL OF INDEMNIFICATION. The provisions of this
Article VI will survive notwithstanding any termination hereof or the Closing of
any of the transactions contemplated hereby.
VII. TERMINATION AND WAIVER
---------------------------
7.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated at any time prior to the Closing Date by the mutual consent of
Purchaser and the Company.
7.2 TERMINATION BY PURCHASER. This Agreement may be terminated
by Purchaser if the Closing shall not have occurred on or before January 15,
2002 (the "OUTSIDE DATE"); PROVIDED, HOWEVER, (i) that Purchaser may not
terminate this Agreement pursuant to this Section 7.2 if Purchaser's failure to
fulfill any of its obligations under this Agreement shall have been the reason
that the Closing shall not have occurred on or before the Outside Date and (ii)
if the Registration Statement has not been declared effective by the SEC on or
prior to December 1, 2001 (other than due to the Company's breach of its
obligation under Section 4.7 of this Agreement), the Outside Date will be
extended beyond December 31, 2001 on a day-for-day basis by that number of days
beyond December 1, 2001 that the Registration Statement has not been declared
effective, not to exceed 30 calendar days.
31
VIII. GENERAL PROVISIONS
------------------------
8.1 NOTICES. Any notice or other communication required to be
given hereunder shall be in writing, and sent by reputable courier service (with
proof of service), by hand delivery or by facsimile (followed on the same day by
delivery by courier service (with proof of delivery) or by hand delivery),
addressed as follows:
IF TO PURCHASER:
---------------
Explorer Holdings, L.P.
4200 Texas Commerce Tower West
2200 Ross Avenue
Dallas, Texas 75201
Attn: William T. Cavanaugh, Jr.
Fax No.: (214) 220-4949
WITH COPIES TO:
--------------
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Attn: Thomas W. Bark
Fax No.: (212) 755-7306
IF TO THE COMPANY:
-----------------
Omega Healthcare Investors, Inc.
900 Victors Way, Suite 350
Ann Arbor, Michigan 48108
Attn: Chief Financial Officer
Fax No.: (734) 887-0322
WITH COPIES TO:
--------------
Powell, Goldstein, Frazer & Murphy LLP
191 Peachtree Street, N.E.
Suite 1600
Atlanta, Georgia 30303
Attn: Rick Miller or Eliot Robinson
Fax No.: (404) 572-6999
or to such other address as any party will specify by written notice so given,
and such notice will be deemed to have been delivered as of the date so
telecommunicated or personally delivered.
32
8.2 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
of the rights, interests or obligations hereunder will be assigned by any party
hereto (whether by operation of Law or otherwise) without the prior written
consent of the other party, except that Purchaser will have the right to assign
to any direct or indirect wholly owned subsidiary of Purchaser or to the
partners of Purchaser any and all rights and obligations of Purchaser under this
Agreement, provided, that any such assignment will not relieve Purchaser from
any of its obligations hereunder. Any assignment not granted in accordance with
the foregoing shall be null and void. Subject to the first sentence of this
Section 8.2, this Agreement will be binding upon and will inure to the benefit
of the parties hereto and their respective successors and assigns.
Notwithstanding anything contained in this Agreement to the contrary, except for
the provisions of Article VI, nothing in this Agreement, expressed or implied,
is intended to confer on any Person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
8.3 ENTIRE AGREEMENT. This Agreement, the Company Disclosure
Letter, the other Transaction Documents and any documents delivered by the
parties in connection herewith or therewith, constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto,
including, without limitation, any draft proposal or letter of intent with
respect to the transactions contemplated herein.
8.4 AMENDMENT. This Agreement may be amended by the parties
hereto, by action taken by their respective Boards of Directors, or other
equivalent governing bodies, at any time before or after approval of matters
presented to the Company Stockholders, but after any such Company Stockholder
approval, no amendment will be made which by Law requires the further approval
of the Company Stockholders without obtaining such further approval. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
8.5 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to its conflict of laws principles.
8.6 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when
33
so executed and delivered will be an original, but all such counterparts will
together constitute one and the same instrument. Each counterpart may consist of
a number of copies hereof each signed by less than all, but together signed by
all of the parties hereto. A facsimile copy of a signature page shall be deemed
to be an original signature page.
8.7 HEADINGS. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and will be given no
substantive or interpretive effect whatsoever.
8.8 CERTAIN DEFINITIONS/INTERPRETATIONS. (a) For purposes of
this Agreement:
(i) An "AFFILIATE" of any Person means another Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person;
(ii) "BUSINESS DAY" means any day other than a Saturday,
Sunday or day on which banks in New York, New York are authorized or required by
Law to close;
(iii) "KNOWLEDGE" of any Person which is not an individual
means the actual knowledge of any of such Person's officers after reasonable
inquiry; and
(iv) "PERSON" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
(b) When a reference is made in this Agreement to an Article,
Section, Exhibit or Annex, such reference will be to an Article or Section of,
or an Annex or Exhibit to, this Agreement unless otherwise indicated. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
will be deemed to be followed by the words "without limitation", except when
used in conjunction with a negative predicate. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement will refer
to this Agreement as a whole and not to any particular provision of this
Agreement. All terms used herein with initial capital letters have the meanings
ascribed to them herein and all terms defined in this Agreement will have such
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
34
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. Any agreement, instrument or statute defined or referred
to herein or in any agreement or instrument that is referred to herein means
such agreement, instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by written
waiver or written consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a Person are also to its
permitted successors and assigns.
8.9 WAIVERS. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including without limitation any investigation
by or on behalf of any party, will be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder will not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereunder.
At any time any party hereto may (a) extend the time for the performance of any
of the obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto, and (c) waive compliance with any of the
agreements or conditions contained herein. Any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by the party or
parties to be bound thereby.
8.10 SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction will, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision will be interpreted to be only so broad as is enforceable.
8.11 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties will be entitled
to an injunction or injunctions to prevent breaches of this Agreement
35
and to enforce specifically the terms and provisions hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.
8.12 EXPENSES. Without limiting the generality or effect of
any other provision hereof, including without limitation Section 6.1 or any
agreement or instrument contemplated hereby, whether or not the Closing occurs,
the Company will reimburse Purchaser for all Purchaser Expenses at the Closing
or the termination of this Agreement, and from time to time thereafter promptly
upon request by Purchaser, not to exceed $1 million. As used in this Agreement,
"PURCHASER EXPENSES" shall be an amount equal to all out-of-pocket costs and
expenses of Purchaser and Purchaser's partners incurred in connection with this
Agreement and the transactions contemplated hereby and any litigation associated
therewith (including, without limitation, all fees and expenses payable to
accountants, counsel, consultants and due diligence expenses, but expressly
excluding the costs of Purchaser's employees and Purchaser's overhead).
"PURCHASER EXPENSES" shall not include (i) any out-of-pocket costs and expenses
of Purchaser or its Affiliates for which Purchaser or its Affiliates would be
entitled to indemnification pursuant to Article VI or to payment pursuant to the
Advisory Agreement and (ii) any fee payable to The Hampstead Group, L.L.C.
pursuant to the Advisory Agreement in respect of the transactions contemplated
by this Agreement.
8.13 JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
party hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of any state or federal court located in
the State of Delaware (a "DELAWARE COURT"), and any appellate court from any
such court, in any suit, action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment resulting from any
such suit, action or proceeding, and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in a Delaware Court.
(b) It will be a condition precedent to each party's right to
bring any such suit, action or proceeding that such suit, action or proceeding,
in the first instance, be brought in a Delaware Court (unless such suit, action
or proceeding is brought solely to obtain discovery or to enforce a judgment),
and if each such court refuses to accept jurisdiction with respect thereto, such
suit, action or proceeding may be brought in any other court with jurisdiction;
PROVIDED that the foregoing will not apply to any suit, action or proceeding by
a
36
party seeking indemnification or contribution pursuant to this Agreement or
otherwise in respect of a suit, action or proceeding against such party by a
third party if such suit, action or proceeding by such party seeking
indemnification or contribution is brought in the same court as the suit, action
or proceeding against such party.
(c) No party may move to (i) transfer any such suit, action or
proceeding from a Delaware Court to another jurisdiction, (ii) consolidate any
such suit, action or proceeding brought in a Delaware Court with a suit, action
or proceeding in another jurisdiction, or (iii) dismiss any such suit, action or
proceeding brought in a Delaware Court for the purpose of bringing the same in
another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, (i) any objection
which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in a Delaware Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court, and (iii) the right to object, with
respect to such suit, action or proceeding, that such court does not have
jurisdiction over such party. Each party irrevocably consents to service of
process in any manner permitted by law. Notwithstanding the foregoing, this
Section 8.13 will not apply to any suit, action or proceeding to enforce a
judgment of a Delaware Court.
8.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING
OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
8.15 NO STRICT CONSTRUCTION. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
37
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ C. Taylor Pickett
---------------------------------
C. Taylor Pickett
Chief Executive Officer
EXPLORER HOLDINGS, L.P.
By: Explorer Holdings GenPar, LLC,
its General Partner
By: /s/ William T. Cavanaugh, Jr.
---------------------------------
William T. Cavanaugh, Jr.
Vice President
EX-99.B
4
a2062165zex-99_b.txt
EXHIBIT 99(B)
EXHIBIT 99B
OMEGA HEALTHCARE INVESTORS, INC.
AMENDED AND RESTATED ARTICLES SUPPLEMENTARY
FOR SERIES C CONVERTIBLE PREFERRED STOCK
OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation (the
"COMPANY"), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
FIRST: Pursuant to authority contained in the charter of the
Company (the "CHARTER"), 2,000,000 shares of authorized but unissued shares of
the Company's Preferred Stock have been duly classified by the Board of
Directors of the Company (the "BOARD") as authorized but unissued shares of the
Company's Series C Preferred Stock.
SECOND: A description of the Series C Preferred Stock is as
follows:
1. DESIGNATION AND NUMBER. A series of Preferred Stock, designated the
"Series C Convertible Preferred Stock" (the "SERIES C PREFERRED STOCK"), is
hereby established. The number of shares of the Series C Preferred Stock shall
be 2,000,000, subject to increase pursuant to Section 4(b) prior to payment by
the Company of any dividend in shares of Series C Preferred Stock in accordance
with Section 4.
2. MATURITY. The Series C Preferred Stock has no stated maturity.
3. RANK. The Series C Preferred Stock will, with respect to dividend rights
and rights upon liquidation, dissolution or winding up of the Company, rank (i)
senior to all classes or series of Common Stock of the Company, and to all
equity securities ranking junior to the Series C Preferred Stock with respect to
dividend rights or rights upon liquidation, dissolution or winding up of the
Company, (ii) on a parity with the Series A Preferred Stock, Series B Preferred
Stock, Series D Preferred Stock and all other equity securities issued by the
Company the terms of which specifically provide that such equity securities rank
on a parity with the Series C Preferred Stock with respect to dividend rights or
rights upon liquidation, dissolution or winding up of the Company (the "PARITY
PREFERRED"), and (iii) junior to all existing and future indebtedness of the
Company. The term "equity securities" does not include convertible debt
securities, which will rank senior
to the Series C Preferred Stock prior to conversion of such debt securities.
4. DIVIDENDS. (a) Except as set forth in Section 4(b), holders of shares of
the Series C Preferred Stock are entitled to receive, out of funds legally
available for the payment of dividends, preferential cumulative dividends at the
greater of (i) 10% per annum of the Liquidation Preference per share (equivalent
to a fixed annual amount of $10.00 per share) and (ii) the amount per share
declared or paid or set aside for payment based on the number of shares of
Common Stock into which such shares of Series C Preferred Stock are then
convertible in accordance with Section 8. Dividends on each share of the Series
C Preferred Stock shall be cumulative commencing from the date of issuance of
such share of Series C Preferred Stock and shall be payable in arrears for each
period ended July 31, October 31, January 31 and April 30 (each a "DIVIDEND
PERIOD") on or before the 15th day of August, November, February and May of each
year, or, if not a Business Day, the next succeeding Business Day (each, a
"DIVIDEND PAYMENT DATE"). The first dividend will be paid on November 15, 2000,
with respect to the period commencing on the date of first issuance of Series C
Preferred Stock (the "ISSUE Date") and ending on October 31, 2000. Any dividend
payable on shares of the Series C Preferred Stock for any partial period will be
computed based on the actual number of days elapsed (commencing with and
including the date of issuance of such shares) and on the basis of a 360-day
year consisting of twelve 30-day months. Dividends will be payable to holders of
record as they appear in the stock records of the Company at the close of
business on the applicable record date, which shall be the last day of the
preceding calendar month prior to the applicable Dividend Payment Date or on
such other date designated by the Board that is not more than 30 nor less than
10 days prior to such Dividend Payment Date (each, a "DIVIDEND RECORD DATE").
(b) For any Dividend Period ending prior to February 1, 2001,
dividends will be payable, at the election of the Board, (i) by the issuance as
of the relevant Dividend Payment Date of additional shares of fully paid,
nonassessable Series C Preferred Stock having an aggregate liquidation
preference equal to the amount of such accrued dividends or (ii) in cash. In the
event that dividends are declared and paid pursuant to clause (i), (A) such
dividends will be deemed paid in full and will not accumulate and (B) prior to
paying any such dividends, the Board will take such action as is necessary to
increase the number of authorized shares of Series C Preferred
2
Stock by the number of shares to be issued pursuant to this Section 4, including
but not limited to the filing of Articles Supplementary with the State
Department of Assessments and Taxation of Maryland in accordance with Article
VII of the Charter. The Company will deliver certificates representing shares of
Series C Preferred Stock issued pursuant to this Section 4(b) promptly after the
relevant Dividend Payment Date. For any Dividend Period ending after February 1,
2001, dividends will be payable in cash.
(c) No dividends on shares of Series C Preferred Stock shall
be declared by the Board or paid or set apart for payment by the Company at
such time as the terms and provisions of any agreement of the Company,
including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law. (d) Notwithstanding the foregoing, dividends
on the Series C Preferred Stock will accrue whether or not the Company has
earnings, whether or not there are funds legally available for the payment of
such dividends and whether or not such dividends are declared. Accrued but
unpaid dividends on the Series C Preferred Stock will not bear interest and
holders of the Series C Preferred Stock will not be entitled to any
distributions in excess of full cumulative distributions described above.
Except as set forth in the next sentence, no dividends will be declared or
paid or set apart for payment on any capital stock of the Company or any
other series of Preferred Stock ranking, as to dividends, on a parity with or
junior to the Series C Preferred Stock (other than a dividend in shares of
the Company's Common Stock or in shares of any other class of stock ranking
junior to the Series C Preferred Stock as to dividends and upon liquidation)
for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof is set apart for such payment on the Series C Preferred
Stock for all past dividend periods and the then current dividend period.
When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series C Preferred Stock and the shares
of any other series of Preferred Stock ranking on a parity as to dividends
with the Series C Preferred Stock, all dividends declared upon the Series C
Preferred Stock and any other series of Preferred Stock ranking on a parity
as to dividends with the Series C Preferred
3
Stock shall be declared pro rata so that the amount of dividends declared per
share of Series C Preferred Stock and such other series of Preferred Stock
shall in all cases bear to each other the same ratio that accrued dividends
per share on the Series C Preferred Stock and such other series of Preferred
Stock (which shall not include any accrual in respect of unpaid dividends for
prior dividend periods if such Preferred Stock does not have a cumulative
dividend) bear to each other.
(e) Except as provided in the immediately preceding paragraph,
unless full cumulative dividends on the Series C Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of Common Stock
or other shares of capital stock ranking junior to the Series C Preferred Stock
as to dividends and upon liquidation) shall be declared or paid or set aside for
payment nor shall any other distribution be declared or made upon the Common
Stock, or any other capital stock of the Company ranking junior to or on a
parity with the Series C Preferred Stock as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other shares of capital stock of
the Company ranking junior to or on a parity with the Series C Preferred Stock
as to dividends or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by the Company (except by conversion
into or exchange for other capital stock of the Company ranking junior to the
Series C Preferred Stock as to dividends and upon liquidation or redemption or
for the purpose of preserving the Company's qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended (the
"CODE")). Holders of shares of the Series C Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock, in excess
of full cumulative dividends on the Series C Preferred Stock as provided above.
Any dividend payment made on shares of the Series C Preferred Stock shall first
be credited against the earliest accrued but unpaid dividend due with respect to
such shares which remains payable.
5. LIQUIDATION PREFERENCE. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, each holder of shares
of Series C Preferred Stock shall, at the election of such holder, be entitled
to be paid out of the assets of the Company legally available for distribution
to its shareholders the Liquidation
4
Preference (as defined in Section 10(e)) before any distribution of assets is
made to holders of Common Stock or any other class or series of capital stock of
the Company that ranks junior to the Series C Preferred Stock as to liquidation
rights. The Company will promptly provide to the holders of Series C Preferred
Stock written notice of any event triggering the right to receive such
Liquidation Preference. After payment of the full amount of the Liquidation
Preference, plus any accrued and unpaid dividends to which they are entitled,
the holders of Series C Preferred Stock will have no right or claim to any of
the remaining assets of the Company. A Change in Control (as defined in Section
10(b)), or the sale, lease or conveyance of all or substantially all of the
property, business or assets of the Company shall be deemed to constitute a
liquidation, dissolution or winding up of the Company for purposes of Section 5
of these Articles Supplementary only and shall not be deemed a liquidation,
dissolution or winding up of the Company for any other series of Preferred Stock
unless the terms of such series of Preferred Stock expressly provide.
In determining whether a distribution (other than upon voluntary or involuntary
liquidation) by dividend, redemption or other acquisition of shares of stock of
the Company or otherwise is permitted under the Maryland General Corporation Law
(the "MGCL"), no effect shall be given to amounts that would be needed if the
Company would be dissolved at the time of the distribution, to satisfy the
preferential rights upon distribution of holders of shares of stock of the
Company whose preferential rights upon distribution are superior to those
receiving the distribution.
6. REDEMPTION. The Series C Preferred Stock is not redeemable without the
consent of the holder of such share of Series C Preferred Stock.
7. VOTING RIGHTS. (a) Holders of the Series C Preferred Stock will not have
any voting rights, except as set forth below.
(b) Each holder of shares of Series C Preferred Stock shall be entitled
to notice of any stockholder meeting in accordance with the bylaws of the
Company (the "BYLAWS"), shall be entitled to a number of votes equal to the
number of shares of Common Stock into which the shares of Series C Preferred
Stock held by such holder could then be converted pursuant to Section 8, shall
have voting rights and powers equal to the voting rights and powers of the
holders of Common Stock, and shall vote together as a single class with holders
of Common
5
Stock, except as expressly required by law. Fractional votes shall not be
permitted, and any fractional voting rights resulting from the right of any
holder of Series C Preferred Stock to vote on an as converted basis (after
aggregating the shares into which all shares of Series C Preferred Stock held
such holder could be converted) shall be rounded to the nearest whole number
(with one-half being rounded upward). The holders of Series C Preferred Stock
shall have no separate class or series vote on any matter except as expressly
required by law or as otherwise set forth in these Articles Supplementary.
(c) Whenever dividends on any shares of Series C Preferred Stock shall
be in arrears for four or more Dividend Periods (a "PREFERRED DIVIDEND
DEFAULT"), the number of directors then constituting the Board shall be
increased by two (if not already increased by reason of a similar arrearage with
respect to the Series D Preferred Stock). The holders of such shares of Series C
Preferred Stock and the holders of Series D Preferred Stock upon which like
voting rights have been conferred and are exercisable (voting together as a
single class) will be entitled to fill the vacancies thereby created by the
addition of such number of directors of the Company determined pursuant to the
first sentence of this Section 7(c) (the "ADDITIONAL SERIES C/D PREFERRED STOCK
DIRECTORS") at a special meeting called by the holders of record of at least 20%
of the Series C Preferred Stock or the holders of record of at least 20% of the
Series D Preferred Stock until all dividends accumulated on such shares of
Series C Preferred Stock and Series D Preferred Stock for the past dividend
periods and the dividend for the then current
6
dividend period shall have been fully paid or declared and a sum sufficient for
the payment thereof set aside. In any vote to elect or remove additional
directors pursuant to this Section 7, each such holder of shares of Series C
Preferred Stock and Series D Preferred Stock entitled to vote will be entitled
to one vote for each share held by such holder. In the event the directors of
the Company are divided into classes, each such vacancy shall be apportioned
among the classes of directors to prevent stacking in any one class and to
ensure that the number of directors in each of the classes of directors are as
equal as possible. Each Additional Series C/D Preferred Stock Director, as a
qualification for election as such (and regardless of how elected), shall submit
to the Board a duly executed, valid, binding and enforceable letter of
resignation from the Board, to be effective upon the date upon which all
dividends accumulated on such shares of Series C Preferred Stock and Series D
Preferred Stock for the past dividend periods and the dividend for the then
current dividend period shall have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment, whereupon the terms of
office of all persons elected as Additional Series C/D Preferred Stock Directors
by the holders of such shares of Series C Preferred Stock and Series D Preferred
Stock shall, upon the effectiveness of their respective letters of resignation,
forthwith terminate, and the number of directors then constituting the Board
shall be reduced accordingly. A quorum for any such meeting shall exist if the
holders of at least a majority of the outstanding shares of Series C Preferred
Stock and Series D Preferred Stock so entitled to vote are represented in person
or by proxy at such meeting. Such Additional Series C/D Preferred Stock
Directors shall be elected upon the affirmative vote of a plurality (based on
the number of votes entitled to be cast) of the shares of Series C Preferred
Stock and Series D Preferred Stock so entitled to vote that are present and
voting in person or by proxy at a duly called and held meeting at which a quorum
is present. If and when all accumulated dividends and the dividend for the then
current dividend period on such shares of Series C Preferred Stock and Series D
Preferred Stock shall have been paid in full or declared and a sum sufficient
for the payment thereof in full shall have been set aside, the holders thereof
shall be divested of the foregoing voting rights (subject to revesting in the
event of each and every Preferred Dividend Default) and the term of office of
each Additional Series C/D Preferred Stock Director so elected shall terminate.
Any Additional Series C/D Preferred Stock Director may be removed at any time
with or without cause by, and shall not be removed otherwise than by the vote
of, the holders of record of a majority of the outstanding shares of the Series
C Preferred Stock and Series D Preferred Stock entitled to vote (voting together
as a single class). So long as a Preferred Dividend Default shall continue, any
vacancy in the office of an Additional Series C/D Preferred Stock Director may
be filled by written consent of the Additional Series C/D Preferred Stock
Directors remaining in office, or if none remains in office, by a vote of the
holders of record of a majority of the outstanding shares of Series C Preferred
Stock and Series D Preferred Stock so entitled to vote (voting together as a
single class). The Additional Series C/D Preferred Stock Directors shall each be
entitled to one vote per director on any matter.
(d) Explorer Holdings, L.P. ("EXPLORER") hereby waives, for the period
from the date hereof through and including December 31, 2002 (the "GOVERNANCE
RIGHT DEFERRAL PERIOD"), its rights under Section 7(c) of these Amended and
7
Restated Articles Supplementary to elect Additional Series C/D Preferred Stock
Directors, provided that the dividends on any shares of Series C Preferred Stock
shall not be in arrears for six or more Dividend Periods during the Governance
Right Deferral Period. For the avoidance of doubt, if (i) at any time during the
Governance Right Deferral Period the holders of any Parity Preferred shall be
entitled to elect Additional Preferred Stock Directors then Explorer shall be
entitled to simultaneously exercise its rights under Section 7(c) of these
Amended and Restated Articles Supplementary and (ii) on or after January 1, 2003
the dividends on any shares of Series C Preferred Stock shall then be in arrears
for four or more Dividend Periods (including any Dividend Periods prior to
January 1, 2003), the holders of the Series C Preferred Stock shall be entitled
to elect Additional Series C/D Preferred Stock Directors in accordance with the
provisions of Section 7(c) of these Amended and Restated Articles Supplementary.
(e) So long as any shares of Series C Preferred Stock remain
outstanding, the Company will not, without the affirmative vote or consent of
the holders of at least two-thirds of the shares of the Series C Preferred Stock
outstanding at the time, given in person or by proxy, either in writing or at a
meeting (voting together with any other classes of Preferred Stock adversely
affected in the same manner as a single class), amend, alter or repeal the
provisions of the Charter or the Articles Supplementary, whether by merger,
consolidation or otherwise (an "EVENT"), so as to materially and adversely
affect any right, preference, privilege or voting power of the Series C
Preferred Stock or the holders thereof, including without limitation, the
creation of any series of Preferred Stock ranking senior to the Series C
Preferred Stock with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up, but not including the
creation or issuance of Parity Preferred.
(f) Except as expressly stated in these Articles Supplementary, the
Series C Preferred Stock shall not have any relative, participating, optional or
other special voting rights and powers and the consent of the holders thereof
shall not be required for the taking of any corporate action, including but not
limited to, any merger or consolidation involving the Company or a sale of all
or substantially all of the assets of the Company, irrespective of the effect
that such merger, consolidation or sale may have upon the rights, preferences or
voting power of the holders of the Series C Preferred Stock.
8
8. CONVERSION. The holders of Series C Preferred Stock shall have the
following conversion rights with respect to such shares:
8.1 OPTIONAL CONVERSION. Each share of Series C Preferred Stock
(including all accrued and unpaid dividends thereon, to the extent declared) may
be converted, at any time at the option of the holder thereof, into fully paid
and nonassessable shares of Common Stock (and any other securities or property
expressly provided in this Section 8) as set forth in this Section 8.
8.2 CONVERSION PRICE. Each share of Series C Preferred Stock may be
converted into such number of shares of Common Stock as is equal to the quotient
obtained by dividing the Original Issue Price for such share by the Conversion
Price (as defined below) in effect at the time of conversion. The Conversion
Price initially shall be equal to $6.25 per share of Common Stock, subject to
adjustment from time to time as provided herein (the "CONVERSION PRICE").
8.3 MECHANICS OF CONVERSION. A holder of Series C Preferred Stock who
desires to convert the same into Common Stock shall surrender the certificate or
certificates representing such shares, duly endorsed, at the office of the
Company or at the office of any transfer agent for the Series C Preferred Stock
or Common Stock, and shall give written notice to the Company at such office
that such holder elects to convert the same and shall state therein both the
number of shares of Series C Preferred Stock being converted and the name or
names in which the holder wishes the certificate or certificates for Common
Stock to be issued. The Company shall, as soon as practicable after such
surrender, issue and deliver at such office to such holder a certificate or
certificates representing the number of shares of Common Stock to which such
holder is entitled and a new certificate or certificates representing the number
of shares of Series C Preferred Stock represented by the certificate or
certificates surrendered by the holder minus the number of Series C Preferred
Stock so converted by the holder. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of such surrender of
the certificate representing the Series C Preferred Stock to be converted, and
the Person entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder of such Common Stock on
such date. Any Series C Preferred Stock converted into Common Stock shall be
retired and may not be reissued by the Company.
9
8.4 ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Company at any
time or from time to time after the Issue Date effects a subdivision of the
outstanding Common Stock, the Conversion Price then in effect immediately before
that subdivision shall be proportionately decreased, and conversely, if the
Company at any time or from time to time after the Issue Date combines the
outstanding Common Stock into a smaller number of shares, the Conversion Price
then in effect immediately before the combination shall be proportionately
increased. Any adjustment under this Section 8.4 shall become effective at the
close of business on the date such subdivision or combination becomes effective.
8.5 ADJUSTMENT FOR CERTAIN DIVIDENDS AND DISTRIBUTIONS. If the Company
at any time or from time to time after the Issue Date makes, or fixes a record
date for the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional Common Stock, then and in
each such event the Conversion Price then in effect shall be decreased as of the
time of such issuance or, in the event such record date is fixed, as of the
close of business on such record date, by multiplying the Conversion Price then
in effect by a fraction (1) the numerator of which is the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and (2) the denominator
of which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution; PROVIDED, HOWEVER, that if such
record date is fixed and such dividend is not fully paid or if such distribution
is not fully made on the date fixed therefor, the Conversion Price shall be
recomputed accordingly as of the close of business on such record date and
thereafter the Conversion Price shall be adjusted pursuant to this Section 8.5
as of the time of actual payment of such dividends or distributions.
8.6 ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. In the event the
Company at any time or from time to time after the Issue Date makes, or fixes a
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
other than Common Stock or other assets or property of the Company (other than
ordinary cash dividends, any special dividends necessary to preserve the
Company's qualification as a REIT and the dividend payable pursuant to the
10
Rights Offering), then and in each such event provision shall be made so that
the holders of Series C Preferred Stock shall receive upon conversion thereof,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities of the Company or other assets or property of the Company
which they would have received had their Series C Preferred Stock been converted
into Common Stock on the date of such event and had they thereafter, during the
period from the date of such event to and including the conversion date,
retained such securities or other assets or property of the Company receivable
by them as aforesaid during such period, subject to all other adjustments called
for during such period under this Section 8 with respect to the rights of the
holders of the Series C Preferred Stock.
8.7 ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. In the
event that at any time or from time to time after the Issue Date, the Common
Stock or other securities as provided herein issuable upon the conversion of the
Series C Preferred Stock are changed into the same or a different number of
shares of any class or classes of stock, whether by recapitalization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend or a reorganization, merger, consolidation or sale of assets,
provided for elsewhere in this Section 8), then and in any such event each
holder of Series C Preferred Stock shall have the right thereafter to convert
such Series C Preferred Stock into the kind and amount of stock and other
securities and property receivable upon such recapitalization, reclassification
or other change, by holders of Common Stock or other securities as provided
herein into which such shares of Series C Preferred Stock could have been
converted immediately prior to such recapitalization, reclassification or
change, all subject to further adjustment as provided herein.
8.8 REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR TRANSFERS OF ASSETS. If
at any time or from time to time after the Issue Date there is a capital
reorganization of the Common Stock or other securities issuable upon conversion
of Series C Preferred Stock as provided herein (other than a recapitalization,
subdivision, combination, reclassification or exchange of shares provided for
elsewhere in this Section 8) or a merger or consolidation or statutory binding
share exchange of the Company with or into another Person, or the transfer of
all or substantially all of the Company's properties and assets to any other
Person and such capital reorganization, merger, consolidation or transfer does
not constitute a Change in
11
Control, then, as a part of such capital reorganization, merger, consolidation,
exchange or transfer, provision shall be made so that the holders of the Series
C Preferred Stock shall thereafter be entitled to receive upon conversion of
Series C Preferred Stock the number of shares of stock or other securities, cash
or property to which a holder of the number of shares of Common Stock or other
securities deliverable upon conversion of the Series C Preferred Stock would
have been entitled on such capital reorganization, merger, consolidation,
exchange or transfer. In any such case, appropriate adjustment shall be made in
the application of the provisions of this Section 8 with respect to the rights
of the holders of the Series C Preferred Stock after the capital reorganization,
merger, consolidation, exchange or transfer to the end that the provisions of
this Section 8 (including adjustment of the Conversion Price then in effect and
the number of shares receivable upon conversion of the Series C Preferred Stock)
shall be applicable after that event and be as nearly equivalent as may be
practicable.
8.9 SALE OF SHARES BELOW FAIR MARKET VALUE. (a) If at any time or from
time to time after the Issue Date, the Company issues or sells, or is deemed by
the express provisions of this Section 8.9 to have issued or sold, Additional
Common Stock (as defined below), other than as a dividend or other distribution
on any class of stock as provided in Section 8.5 above and other than upon a
subdivision or combination of Common Stock as provided in Section 8.4 above, for
an Effective Price (as defined below) less than the Fair Market Value, then and
in each such case the then existing Conversion Price shall be reduced, as of the
opening of business on the date of such issue or sale, to a price determined by
multiplying that Conversion Price by a fraction (i) the numerator of which shall
be equal to the sum of (A) the number of shares of Common Stock issued and
outstanding at the close of business on the Business Day immediately preceding
the date of such issue or sale, (B) the number of shares of Common Stock which
the aggregate consideration received (or by the express provisions hereof is
deemed to have been received) by the Company for the total number of shares of
Additional Common Stock so issued or sold would purchase at such Fair Market
Value, (C) the number of shares of Common Stock into which all outstanding
Series C Preferred Stock and Series D Preferred Stock would be convertible at
the close of business on the Business Day immediately preceding the date of such
issuance or sale (whether or not the Series D Preferred Stock is then
convertible), and (D) the number of shares of Common Stock underlying all
12
Convertible Securities (as defined below) at the close of business on the
Business Day immediately preceding the date of such issuance or sale, and (ii)
the denominator of which shall be equal to the sum of (A) the number of shares
of Common Stock issued and outstanding at the close of business on the date of
such issuance or sale after giving effect to such issuance or sale of Additional
Common Stock, (B) the number of shares of Common Stock into which all
outstanding Series C Preferred Stock and Series D Preferred Stock would be
convertible at the close of business on the Business Day immediately preceding
the date of such issuance or sale (whether or not the Series D Preferred Stock
is then convertible), and (C) the number of shares of Common Stock underlying
all Convertible Securities at the close of business on the Business Day
immediately preceding the date of such issuance or sale.
(b) For the purpose of making any adjustment required under this Section
8.9, the consideration for any issuance or sale of securities shall be deemed to
be (A) to the extent it consists of cash, equal to the gross amount paid in such
issuance or sale, (B) to the extent it consists of property other than cash,
equal to the Fair Market Value of that property, and (C) if Additional Common
Stock, Convertible Securities (as defined below) or rights or options to
purchase either Additional Common Stock or Convertible Securities are issued or
sold together with other stock, securities or assets of the Company for a
consideration which covers both, that portion of the consideration so received
that is determined in good faith by the Board to be allocable to such Additional
Common Stock, Convertible Securities or rights or options.
(c) For the purpose of the adjustment required under this Section 8.9,
if the Company issues or sells any rights or options for the purchase of, or
stock or other securities convertible into or exchangeable or exercisable for,
Additional Common Stock (such convertible or exchangeable or exercisable stock
or securities being hereinafter referred to as "CONVERTIBLE SECURITIES") and if
the Effective Price of such Additional Common Stock is less than the Fair Market
Value, then in each case the Company shall be deemed to have (i) issued at the
time of the issuance of such rights or options or Convertible Securities the
number of shares of Additional Common Stock issuable upon exercise, conversion
or exchange thereof irrespective of whether the holders thereof have the fully
vested legal right to exercise, convert or exchange the Convertible Securities
for Additional Common Stock and (ii) received as consideration for the issuance
of such
13
Additional Common Stock an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance of such rights
or options or Convertible Securities, plus, in the case of such rights or
options, the consideration, if any, payable to the Company upon the exercise of
such rights or options, plus, in the case of Convertible Securities, the
consideration, if any, payable to the Company (other than by cancellation of
liabilities or obligations evidenced by such Convertible Securities) upon the
exercise, conversion or exchange thereof. No further adjustment of the
Conversion Price, as adjusted upon the issuance of such rights, options or
Convertible Securities, shall be made as a result of the actual issuance of
Additional Common Stock on the exercise of any such rights or options or the
conversion or exchange of any such Convertible Securities. If any such rights or
options or the conversion or exchange privilege represented by any such
Convertible Securities shall expire without having been exercised, the
Conversion Price as adjusted upon the issuance of such rights, options or
Convertible Securities shall be readjusted to the Conversion Price which would
have been in effect had an adjustment been made on the basis that the only
shares of Additional Common Stock so issued were the shares of Additional Common
Stock, if any, actually issued or sold on the exercise of such rights or options
or rights of conversion or exchange of such Convertible Securities, and such
shares of Additional Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for the granting of the
rights or options whether or not exercised, plus the consideration received for
issuing or selling the Convertible Securities actually converted or exchanged,
plus the consideration, if any, actually received by the Company (other than by
cancellation of liabilities or obligations evidenced by such Convertible
Securities) on the conversion or exchange of such Convertible Securities.
(d) "ADDITIONAL COMMON STOCK" shall mean all Common Stock issued or
issuable by the Company after the Issue Date, whether or not subsequently
reacquired or retired by the Company, other than (i) Common Stock issued or
issuable upon conversion of, or as a dividend on, any Series C Preferred Stock
or Series D Preferred Stock, (ii) Common Stock issued or issuable pursuant to
any employee benefit plan or similar plan or arrangement intended to provide
compensation and other benefits to officers, directors, employees and
consultants of the Company provided that such plans and any grants or awards
thereunder have been approved by the Board or a committee
14
thereof, (iii) securities issued by the Company in payment of a purchase price
to the seller or any Person who beneficially owns equity securities of such
seller for any acquisition of assets or a business, which acquisition is
approved by the Board, or (iv) Common Stock issued or issuable pursuant to the
Rights Offering, the Investment Agreement or upon issuance or conversion of the
Series D Preferred Stock. The "EFFECTIVE PRICE" of Additional Common Stock shall
mean the quotient determined by dividing the total number of shares of
Additional Common Stock issued or sold, or deemed to have been issued or sold by
the Company, by the aggregate consideration received, or deemed to have been
received, by the Company for such Additional Common Stock. The share numbers in
this Section 8.9(d) shall be appropriately adjusted for any stock dividends,
combinations, splits, reverse splits, recapitalizations and similar events
affecting the securities of the Company.
8.10 CERTIFICATE OF ADJUSTMENT. In each case of an adjustment or
readjustment of the Conversion Price or the number of shares of Common Stock or
other securities issuable upon conversion of the Series C Preferred Stock, the
Company, at its expense, shall cause the Chief Financial Officer of the Company
to compute such adjustment or readjustment in accordance with the provisions
hereof and prepare a certificate showing such adjustment or readjustment, and
shall mail such certificate, by first class mail, postage prepaid, to each
registered holder of the Series C Preferred Stock at the holder's address as
shown in the Company's books. The certificate shall set forth such adjustment or
readjustment, showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (1) the consideration received
or deemed to be received by the Company for any Additional Common Stock issued
or sold or deemed to have been issued or sold, (2) the Conversion Price in
effect immediately prior to the occurrence of the event giving rise to such
adjustment, (3) the number of shares of Additional Common Stock, and (4) the
type and amount, if any, of other property which at the time would be received
upon conversion of the Series C Preferred Stock.
8.11 NOTICES OF RECORD DATE. In the event of (i) any taking by the
Company of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution or (ii) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company, any
merger or consolidation of the Company with or into any other entity, or any
transfer of all or substantially all of
15
the assets of the Company to any other person or any voluntary or involuntary
dissolution, liquidation or winding up of the Company, the Company shall mail to
each holder of Series C Preferred Stock at least ten days prior to the record
date specified therein, a notice specifying (1) the date on which any such
record is to be taken for the purpose of such dividend or distribution and a
description of such dividend or distribution, (2) the date on which any such
reorganization, reclassification, transfer, consolidation, merger, dissolution,
liquidation or winding up is expected to become effective, and (3) the date, if
any, that is to be fixed, as to when the holders of record of Common Stock (or
other securities) shall be entitled to exchange their Common Stock (or other
securities) for securities or other property deliverable upon such
reorganization, reclassification, transfer, consolidation, merger, dissolution,
liquidation or winding up.
8.12 FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issued upon conversion of Series C Preferred Stock. In lieu of any fractional
share to which the holder would otherwise be entitled (calculated based on the
aggregate number of shares of Common Stock to which such holder is entitled upon
such conversion), the Company shall pay cash equal to the product of such
fraction multiplied by the Fair Market Value of one share of Common Stock on the
date of conversion.
8.13 RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Company shall at
all times reserve and keep available out of its authorized but unissued Common
Stock, solely for the purpose of effecting the conversion of the Series C
Preferred Stock, such number of shares of its Common Stock and other securities,
if any, issuable upon conversion thereof as expressly provided in Section 8 as
shall from time to time be sufficient to effect the conversion of all
outstanding Series C Preferred Stock.
8.14 NOTICES. Any notice required or permitted by this Section 8 to be
given to a holder of Series C Preferred Stock or to the Company shall be in
writing and be deemed given upon the earlier of actual receipt or five days
after the same has been deposited in the United States mail, by certified or
registered mail, return receipt requested, postage prepaid, and addressed (i) to
each holder of record at the address of such holder appearing on the books of
the Company, or (ii) to the Company at its registered office, or (iii) to the
Company or any holder, at any other address specified in a written notice given
to the other for the giving of notice.
16
8.15 PAYMENT OF TAXES. The Company will pay all taxes (other than taxes
based upon income) and other governmental charges that may be imposed with
respect to the issue and delivery of Common Stock upon conversion of Series C
Preferred Stock, including without limitation any tax or other charge imposed in
connection with the issue and delivery of Common Stock or other securities, if
any, issuable upon conversion thereof as expressly provided in Section 8 in a
name other than that in which the Series C Preferred Stock so converted were
registered.
8.16 CANCELLATION OF SHARES. Any shares of Series C Preferred Stock
which are converted in accordance with Section 8 or which are redeemed,
repurchased or otherwise acquired by the Company, shall be canceled and added to
the authorized but undesignated Preferred Stock of the Company but shall not be
reissued as Series C Preferred Stock.
9. RESTRICTIONS ON OWNERSHIP AND TRANSFER. Once there is a completed public
offering of the Series C Preferred Stock, if the Board shall, at any time and in
good faith, be of the opinion that actual or constructive ownership of at least
9.9% or more of the value of the outstanding capital stock of the Company has or
may become concentrated in the hands of one owner (other than Explorer Holdings,
L.P. and its direct and indirect equity owners), the Board shall have the power
(i) by means deemed equitable by the Board, and pursuant to written notice, to
call for the purchase from any shareholder of the corporation a number of shares
of Series C Preferred Stock sufficient, in the opinion of the Board, to maintain
or bring the direct or indirect ownership of such beneficial owner to no more
than 9.9% of the value of the outstanding capital stock of the corporation, and
(ii) to refuse to transfer or issue shares of Series C Preferred Stock to any
person whose acquisition of such Series C Preferred Stock would, in the opinion
of the Board, result in the direct or indirect ownership by that person of more
than 9.9% of the value of the outstanding capital stock of the Company. The
purchase price for any shares of Series C Preferred Stock shall be equal to the
fair market value of the shares reflected in the closing sales price for the
shares, if then listed on a national securities exchange, or if the shares are
not then listed on a national securities exchange, the purchase price shall be
equal to the Liquidation Preference of such shares of Series C Preferred Stock.
Payment of the purchase price shall be made within thirty days following the
date set forth in the notice of call for purchase, and shall be made in such
manner as may be determined by the Board. From and
17
after the date fixed for purchase by the Board, as set forth in the notice, the
holder of any shares so called for purchase shall cease to be entitled to
distributions and other benefits with respect to such shares, excepting only the
right to payment of the purchase price fixed as aforesaid. Any transfer of
Series C Preferred Stock that would create an actual or constructive owner of
more than 9.9% of the value of the outstanding shares of capital stock of this
Company shall be deemed VOID AB INITIO and the intended transferee shall be
deemed never to have had an interest therein. If the foregoing provision is
determined to be void or invalid by virtue of any legal decision, statute, rule
or regulation, then the transferee of such Series C Preferred Stock shall be
deemed, at the option of the Company, to have acted as agent on behalf of the
Company in acquiring such shares and to hold such shares on behalf of the
Company.
Notwithstanding anything herein to the contrary, nothing herein shall authorize
the Company or its transfer agent to refuse to transfer any shares of Series C
Preferred Stock, passing either by voluntary transfer, by operation of law, or
under the last will and testament of any shareholder, if such transfer would
not, in the written opinion of counsel to the transferor reasonably acceptable
to the Company, disqualify the Company as a Real Estate Investment Trust under
the Code. Nothing herein contained shall limit the ability of the Company to
impose or to seek judicial or other imposition of additional restrictions if
deemed necessary or advisable to preserve the Company's tax status as a
qualified Real Estate Investment Trust.
10. CERTAIN DEFINED TERMS. In addition to the terms defined elsewhere in
these Articles Supplementary or the Charter, the following terms will have the
following meanings when used herein with initial capital letters:
(a) "BUSINESS DAY" means any day (other than a day which is a Saturday,
Sunday or legal holiday in New York City, or any day on which banks in New York
City are authorized by law to close).
(b) "CHANGE IN CONTROL" means the occurrence of any of the following in
one or a series of related transactions: (A) any consolidation, merger,
reorganization, share exchange or other form of business combination transaction
involving the Company in which the holders of the Company's Voting Stock
immediately before such transaction do not, immediately after such transaction,
retain Voting Stock representing a majority of the voting power of the acquiring
entity, the Company or the
18
entity surviving such transaction or (B) the sale, transfer or assignment of
Voting Stock of the Company representing a majority of the voting power of the
Company to an acquiring Person; PROVIDED, HOWEVER, that any transaction
described in clause (A) or (B) in which Voting Stock of the Company or the
acquiring or surviving entity in such transaction representing a majority of the
voting power of such Person is acquired by or from Explorer Holdings, L.P., its
partners and/or their respective Affiliates in one transaction or a series of
related transactions shall not be deemed a Change in Control.
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(d) "FAIR MARKET VALUE" of any security or other asset means:
(i) In the case of any security:
(A) if the security is traded on a securities exchange, the
weighted average trading volume of the per share closing prices of the security
on such exchange over the five trading day period ending three trading days
prior to the date on which such value is measured;
(B) if the security is traded over-the-counter, the weighted
average trading volume of the per share closing bid prices of the security over
the five trading day period ending three trading days prior to the date on which
such value is measured; or
(C) if there is no public market for such security that meets
the criteria set forth in (A) or (B) above, the Fair Market Value shall be the
per share fair market value of such security as of the date on which such value
is measured, as determined in good faith by the Board.
(ii) In the case of assets other than securities, the Fair
Market Value shall be the fair market value of such assets, as determined in
good faith by the Board.
(e) "LIQUIDATION PREFERENCE" measured per share of Series C Preferred
Stock as of any date in question (the "RELEVANT DATE"), means an amount equal to
the Original Issue Price of such share, plus an amount equal to any accrued and
19
unpaid dividends, but without interest, at the rate set forth in Section 4
hereof, if any, for such share of Series C Preferred Stock. In connection with
the determination of the Liquidation Preference of a share of Series C Preferred
Stock upon liquidation, dissolution or winding up of the Company, the Relevant
Date shall be the date of distribution of amounts payable to stockholders in
connection with any such liquidation, dissolution or winding up.
(f) "ORIGINAL ISSUE PRICE" means $100 per share of Series C Preferred
Stock, subject to appropriate adjustment to reflect any stock dividends,
combinations, splits, reverse splits, recapitalizations or similar events
affecting the Series C Preferred Stock after the Issue Date.
(g) "PERSON" means any individual, firm, corporation, partnership,
limited liability company, or group (within the meaning of Section 13(d)(3) of
the Exchange Act).
(h) "RIGHTS OFFERING" means the offering of shares of Common Stock by
the Company pursuant to Section 4.7 of the Investment Agreement, dated as of
October 29, 2001, relating to the Series D Preferred Stock (the "INVESTMENT
AGREEMENT").
(i) "VOTING STOCK" means, with respect to any Person, the shares of any
class or kind ordinarily having the power to vote for the election of directors
or other members of the governing body of such Person, and for purposes hereof,
the Series D Preferred Stock whether or not then convertible. For avoidance of
doubt, Common Stock and Series C Preferred Stock both constitute Voting Stock of
the Company; provided, however, no class of Preferred Stock shall be deemed to
be Voting Stock by virtue of the rights of such holder upon any Preferred
Dividend Default.
11. AMENDMENT; WAIVER. Except as expressly prohibited by law, these Amended
and Restated Articles Supplementary may be amended and any provision herein may
be waived with the approval of the holders of a majority of the Series C
Preferred Stock and a majority of the members of the Board who are not
Affiliates of any holder of Series C Preferred Stock. Any amendment or waiver so
effected shall be binding upon each holder of Series C Preferred Stock.
THIRD: The classification of authorized but unissued shares as
set forth in these Amended and Restated Articles Supplementary does not increase
the authorized capital of the Company or the aggregate par value thereof.
20
FOURTH: These Amended and Restated Articles Supplementary have
been approved by the Board in the manner and by the vote required by law.
FIFTH: The undersigned Vice President of the Company
acknowledges these Amended and Restated Articles Supplementary to be the
corporate act of the Company and, as to all matters or facts required to be
verified under oath, the undersigned Vice President of the Company acknowledges
that to the best of his or her knowledge, information and belief, these matters
and facts are true in all material respects and that this statement is made
under the penalties for perjury.
21
IN WITNESS WHEREOF, the Company has caused these Amended and
Restated Articles Supplementary to be executed under seal in its name and on its
behalf by its Vice President and attested to by its Secretary on this ___ day of
________, 2001.
ATTEST OMEGA HEALTHCARE INVESTORS,
INC.
By:_________________________ By:________________________
Secretary Vice President
22
EX-99.C
5
a2062165zex-99_c.txt
EXHIBIT 99(C)
EXHIBIT 99.C
------------
OMEGA HEALTHCARE INVESTORS, INC.
ARTICLES SUPPLEMENTARY
FOR SERIES D CONVERTIBLE PREFERRED STOCK
OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation (the
"COMPANY"), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
FIRST: Pursuant to authority contained in the charter of the
Company (the "CHARTER"), 1,000,000 shares of authorized but unissued shares of
the Company's Preferred Stock have been duly classified by the Board of
Directors of the Company (the "BOARD") as authorized but unissued shares of the
Company's Series D Preferred Stock.
SECOND: A description of the Series D Preferred Stock is as
follows:
1. DESIGNATION AND NUMBER. A series of Preferred Stock, designated the
"Series D Convertible Preferred Stock" (the "SERIES D PREFERRED STOCK"), is
hereby established. The number of shares of the Series D Preferred Stock shall
be 1,000,000, subject to increase pursuant to Section 4(b) prior to payment by
the Company of any dividend in shares of Series D Preferred Stock in accordance
with Section 4.
2. MATURITY. The Series D Preferred Stock has no stated maturity.
3. RANK. The Series D Preferred Stock will, with respect to dividend
rights and rights upon liquidation, dissolution or winding up of the Company,
rank (i) senior to all classes or series of Common Stock of the Company, and to
all equity securities ranking junior to the Series D Preferred Stock with
respect to dividend rights or rights upon liquidation, dissolution or winding up
of the Company, (ii) on a parity with the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and all other equity securities issued
by the Company the terms of which specifically provide that such equity
securities rank on a parity with the Series D Preferred Stock with respect to
dividend rights or rights upon liquidation, dissolution or winding up of the
Company (the "PARITY PREFERRED"), and (iii) junior to all existing and future
indebtedness of the Company. The term "equity securities" does not include
convertible debt securities, which will rank senior
to the Series D Preferred Stock prior to conversion of such debt securities.
4. DIVIDENDS. (a) Except as set forth in Section 4(b), if the
Stockholder Approval Date does not occur on or prior to January 31, 2002,
holders of shares of the Series D Preferred Stock are entitled to receive, out
of funds legally available for the payment of dividends, preferential cumulative
dividends at the greater of (i) 10% per annum of the Liquidation Preference per
share (equivalent to a fixed annual amount of $_____ per share) and (ii) the
amount per share declared or paid or set aside for payment based on the number
of shares of Common Stock into which such shares of Series D Preferred Stock are
then convertible in accordance with Section 8. Subject to the preceding
sentence, dividends on each share of the Series D Preferred Stock shall be
cumulative commencing from the date of issuance (the "ISSUE DATE") of such share
of Series D Preferred Stock and shall be payable in arrears for each period
ended July 31, October 31, January 31 and April 30 (each a "DIVIDEND PERIOD") on
or before the 15th day of August, November, February and May of each year, or,
if not a Business Day, the next succeeding Business Day (each, a "DIVIDEND
PAYMENT DATE"). Any dividend payable on shares of the Series D Preferred Stock
for any partial period will be computed based on the actual number of days
elapsed (commencing with and including the date of issuance of such shares) and
on the basis of a 360-day year consisting of twelve 30-day months. Dividends
will be payable to holders of record as they appear in the stock records of the
Company at the close of business on the applicable record date, which shall be
the last day of the preceding calendar month prior to the applicable Dividend
Payment Date or on such other date designated by the Board that is not more than
30 nor less than 10 days prior to such Dividend Payment Date (each, a "DIVIDEND
RECORD DATE").
(b) Dividends will be payable, (1) at the election of the holders
of a majority of the Series D Preferred Stock, in respect of any period after
June 30, 2002 and (2) at the election of the Board, in respect of any period on
or prior to June 30, 2002, either (i) by the issuance as of the relevant
Dividend Payment Date of additional shares of fully paid, nonassessable Series D
Preferred Stock having an aggregate liquidation preference equal to the amount
of such accrued dividends or (ii) in cash. In the event that dividends are
declared and paid pursuant to clause (i), (A) such dividends will be deemed paid
in full and will not accumulate and (B) prior to paying any such dividends, the
Board will take such
2
action as is necessary to increase the number of authorized shares of Series D
Preferred Stock by the number of shares to be issued pursuant to this Section 4,
including but not limited to the filing of Articles Supplementary with the State
Department of Assessments and Taxation of Maryland in accordance with Article
VII of the Charter. The Company will deliver certificates representing shares of
Series D Preferred Stock issued pursuant to this Section 4(b) promptly after the
relevant Dividend Payment Date.
(c) No dividends on shares of Series D Preferred Stock shall be
declared by the Board or paid or set apart for payment by the Company at such
time as the terms and provisions of any agreement of the Company, including any
agreement relating to its indebtedness, prohibits such declaration, payment or
setting apart for payment or provides that such declaration, payment or setting
apart for payment would constitute a breach thereof or a default thereunder, or
if such declaration or payment shall be restricted or prohibited by law.
(d) Notwithstanding the foregoing, dividends on the Series D
Preferred Stock will accrue whether or not the Company has earnings, whether or
not there are funds legally available for the payment of such dividends and
whether or not such dividends are declared. Accrued but unpaid dividends on the
Series D Preferred Stock will not bear interest.
(e) Except as set forth in the next sentence, no dividends will
be declared or paid or set apart for payment on any capital stock of the Company
or any other series of Preferred Stock ranking, as to dividends, on a parity
with or junior to the Series D Preferred Stock (other than a dividend in shares
of the Company's Common Stock or in shares of any other class of stock ranking
junior to the Series D Preferred Stock as to dividends and upon liquidation) for
any period unless full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof is
set apart for such payment on the Series D Preferred Stock for all past dividend
periods and the then current dividend period. When dividends are not paid in
full (or a sum sufficient for such full payment is not so set apart) upon the
Series D Preferred Stock and the shares of any other series of Preferred Stock
ranking on a parity as to dividends with the Series D Preferred Stock, all
dividends declared upon the Series D Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with the Series D Preferred
Stock shall be declared pro rata so that the amount of dividends declared per
share of Series D Preferred Stock and such other
3
series of Preferred Stock shall in all cases bear to each other the same ratio
that accrued dividends per share on the Series D Preferred Stock and such other
series of Preferred Stock (which shall not include any accrual in respect of
unpaid dividends for prior dividend periods if such Preferred Stock does not
have a cumulative dividend) bear to each other.
(f) Except as provided in the immediately preceding paragraph,
unless full cumulative dividends on the Series D Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of Common Stock
or other shares of capital stock ranking junior to the Series D Preferred Stock
as to dividends and upon liquidation) shall be declared or paid or set aside for
payment nor shall any other distribution be declared or made upon the Common
Stock, or any other capital stock of the Company ranking junior to or on a
parity with the Series D Preferred Stock as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other shares of capital stock of
the Company ranking junior to or on a parity with the Series D Preferred Stock
as to dividends or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by the Company (except by conversion
into or exchange for other capital stock of the Company ranking junior to the
Series D Preferred Stock as to dividends and upon liquidation or redemption or
for the purpose of preserving the Company's qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended (the
"CODE")). Holders of shares of the Series D Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock, in excess
of full cumulative dividends on the Series D Preferred Stock as provided above.
Any dividend payment made on shares of the Series D Preferred Stock shall first
be credited against the earliest accrued but unpaid dividend due with respect to
such shares which remains payable.
5. LIQUIDATION PREFERENCE. Upon any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company, each
holder of shares of Series D Preferred Stock shall, at the election of such
holder, be entitled to be paid out of the assets of the Company legally
available for distribution to its shareholders the Liquidation Preference (as
defined in Section 10(e)) before any distribution of assets is made to holders
of Common Stock or any other class
4
or series of capital stock of the Company that ranks junior to the Series D
Preferred Stock as to liquidation rights. The Company will promptly provide to
the holders of Series D Preferred Stock written notice of any event triggering
the right to receive such Liquidation Preference. After payment of the full
amount of the Liquidation Preference, plus any accrued and unpaid dividends to
which they are entitled, the holders of Series D Preferred Stock will have no
right or claim to any of the remaining assets of the Company. A Change in
Control (as defined in Section 10(b)), or the sale, lease or conveyance of all
or substantially all of the property, business or assets of the Company shall be
deemed to constitute a liquidation, dissolution or winding up of the Company for
purposes of Section 5 of these Articles Supplementary only and shall not be
deemed a liquidation, dissolution or winding up of the Company for any other
series of Preferred Stock unless the terms of such series of Preferred Stock
expressly provide.
In determining whether a distribution (other than upon voluntary or involuntary
liquidation) by dividend, redemption or other acquisition of shares of stock of
the Company or otherwise is permitted under the Maryland General Corporation Law
(the "MGCL"), no effect shall be given to amounts that would be needed if the
Company would be dissolved at the time of the distribution, to satisfy the
preferential rights upon distribution of holders of shares of stock of the
Company whose preferential rights upon distribution are superior to those
receiving the distribution.
6. REDEMPTION. The Series D Preferred Stock is not redeemable without
the consent of the holder of such share of Series D Preferred Stock.
7. VOTING RIGHTS. (a) Holders of the Series D Preferred Stock will not
have any voting rights, except as set forth below.
(b) Whenever dividends on any shares of Series D Preferred Stock
shall be in arrears for two or more Dividend Periods (a "PREFERRED DIVIDEND
DEFAULT"), the number of directors then constituting the Board shall be
increased by two (if not already increased by reason of a similar arrearage with
respect to the Series C Preferred Stock). The holders of such shares of Series D
Preferred Stock and the holders of Series C Preferred Stock upon which like
voting rights have been conferred and are exercisable (voting together as a
single class) will be entitled to fill the vacancies thereby created by the
addition of such number of directors of the Company
5
determined pursuant to the first sentence of this Section 7(b) (the "ADDITIONAL
SERIES C/D PREFERRED STOCK DIRECTORS") at a special meeting called by the
holders of record of at least 20% of the Series D Preferred Stock or the holders
of record of at least 20% of the Series C Preferred Stock until all dividends
accumulated on such shares of Series D Preferred Stock and Series C Preferred
Stock for the past dividend periods and the dividend for the then current
dividend period shall have been fully paid or declared and a sum sufficient for
the payment thereof set aside. In any vote to elect or remove additional
directors pursuant to this Section 7, each such holder of shares of Series D
Preferred Stock and Series C Preferred Stock entitled to vote will be entitled
to one vote for each share held by such holder. In the event the directors of
the Company are divided into classes, each such vacancy shall be apportioned
among the classes of directors to prevent stacking in any one class and to
ensure that the number of directors in each of the classes of directors are as
equal as possible. Each Additional Series C/D Preferred Stock Director, as a
qualification for election as such (and regardless of how elected), shall submit
to the Board a duly executed, valid, binding and enforceable letter of
resignation from the Board, to be effective upon the date upon which all
dividends accumulated on such shares of Series D Preferred Stock and Series C
Preferred Stock for the past dividend periods and the dividend for the then
current dividend period shall have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment, whereupon the terms of
office of all persons elected as Additional Series C/D Preferred Stock Directors
by the holders of such shares of Series D Preferred Stock and Series C Preferred
Stock shall, upon the effectiveness of their respective letters of resignation,
forthwith terminate, and the number of directors then constituting the Board
shall be reduced accordingly. A quorum for any such meeting shall exist if the
holders of at least a majority of the outstanding shares of Series D Preferred
Stock and Series C Preferred Stock so entitled to vote are represented in person
or by proxy at such meeting. Such Additional Series C/D Preferred Stock
Directors shall be elected upon the affirmative vote of a plurality (based on
the number of votes entitled to be cast) of the shares of Series D Preferred
Stock and Series C Preferred Stock so entitled to vote that are present and
voting in person or by proxy at a duly called and held meeting at which a quorum
is present. If and when all accumulated dividends and the dividend for the then
current dividend period on such shares of Series D Preferred Stock and Series C
Preferred Stock shall have been paid in full or declared and a sum sufficient
for the payment
6
thereof in full shall have been set aside, the holders thereof shall be divested
of the foregoing voting rights (subject to revesting in the event of each and
every Preferred Dividend Default) and the term of office of each Additional
Series C/D Preferred Stock Director so elected shall terminate. Any Additional
Series C/D Preferred Stock Director may be removed at any time with or without
cause by, and shall not be removed otherwise than by the vote of, the holders of
record of a majority of the outstanding shares of the Series D Preferred Stock
and Series C Preferred Stock entitled to vote (voting together as a single
class). So long as a Preferred Dividend Default shall continue, any vacancy in
the office of an Additional Series C/D Preferred Stock Director may be filled by
written consent of the Additional Series C/D Preferred Stock Directors remaining
in office, or if none remains in office, by a vote of the holders of record of a
majority of the outstanding shares of Series D Preferred Stock and Series C
Preferred Stock so entitled to vote (voting together as a single class). The
Additional Series C/D Preferred Stock Directors shall each be entitled to one
vote per director on any matter.
(c) So long as any shares of Series D Preferred Stock remain
outstanding, the Company will not, without the affirmative vote or consent of
the holders of at least two-thirds of the shares of the Series D Preferred Stock
outstanding at the time, given in person or by proxy, either in writing or at a
meeting (voting together with any other classes of Preferred Stock adversely
affected in the same manner as a single class), amend, alter or repeal the
provisions of the Charter or the Articles Supplementary, whether by merger,
consolidation or otherwise (an "EVENT"), so as to materially and adversely
affect any right, preference, privilege or voting power of the Series D
Preferred Stock or the holders thereof, including without limitation, the
creation of any series of Preferred Stock ranking senior to the Series D
Preferred Stock with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up, but not including the
creation or issuance of Parity Preferred.
(d) Except as expressly stated in these Articles Supplementary,
the Series D Preferred Stock shall not have any relative, participating,
optional or other special voting rights and powers and the consent of the
holders thereof shall not be required for the taking of any corporate action,
including but not limited to, any merger or consolidation involving the Company
or a sale of all or substantially all of the assets of the Company, irrespective
of the effect that such merger,
7
consolidation or sale may have upon the rights, preferences or voting power of
the holders of the Series D Preferred Stock.
8. CONVERSION. The holders of Series D Preferred Stock shall have the
following conversion rights with respect to such shares:
8.1 AUTOMATIC CONVERSION. Each share of Series D Preferred Stock
(including all accrued and unpaid dividends thereon) shall automatically be
converted into fully paid and nonassessable shares of Common Stock upon the
earlier of (i) the date the holders of a majority of the shares of Common Stock
(giving effect to the conversion of the Series C Preferred) present and entitled
to vote at a duly convened meeting of the Company's stockholders vote to approve
the issuance of Common Stock pursuant to Section 8 hereof (such date, the
"STOCKHOLDER APPROVAL DATE") or (ii) the date the New York Stock Exchange waives
any requirement for stockholder approval of the conversion of the Series D
Preferred into Common Stock under its rules and policies.
8.2 CONVERSION PRICE. Each share of Series D Preferred Stock will
be converted into such number of shares of Common Stock as is equal to the
quotient obtained by dividing the Original Issue Price for such share by the
Conversion Price (as defined below) in effect at the time of conversion. The
Conversion Price initially shall be equal to $______ per share of Common Stock,
subject to adjustment from time to time as provided herein (the "CONVERSION
PRICE") from and after the Issue Date, irrespective of whether the Series D
Preferred Stock is convertible at such time.
8.3 MECHANICS OF CONVERSION. Upon the occurrence of an event
specified in Section 8.1 above, the outstanding shares of Series D Preferred
Stock shall be converted automatically without any further action by the holders
of such shares and whether or not the certificates representing such shares are
surrendered to the Company or its transfer agent; provided, however, that the
Company shall not be obligated to issue certificates evidencing the shares of
Common Stock issuable upon such conversation unless the certificates evidencing
such shares of Series D Preferred Stock are either delivered to the Company or
its transfer agent as provided below, or the holder notifies the Company or its
transfer agent that such certificates have been lost, stolen or destroyed and
executes an agreement satisfactory to the Company to indemnify the Company from
any loss incurred by it in connection with such certificates. Promptly following
the conversion of the Series D Preferred
8
Stock, the holders thereof shall surrender the certificates representing such
shares at the office of the Company or any transfer agent for the Series D
Preferred Stock, as applicable. Thereupon, there shall be issued and delivered
to such holder promptly at such office and in its names as shown on such
surrendered certificate or certificates, or such other name or names as such
holder shall notify the Company in writing, a certificate or certificates for
the number of shares of Common Stock into which the shares of Series D Preferred
Stock surrendered were convertible on the date on which such conversion
occurred.
8.4 ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Company at
any time or from time to time after the Issue Date effects a subdivision of the
outstanding Common Stock, the Conversion Price then in effect immediately before
that subdivision shall be proportionately decreased, and conversely, if the
Company at any time or from time to time after the Issue Date combines the
outstanding Common Stock into a smaller number of shares, the Conversion Price
then in effect immediately before the combination shall be proportionately
increased. Any adjustment under this Section 8.4 shall become effective at the
close of business on the date such subdivision or combination becomes effective.
8.5 ADJUSTMENT FOR CERTAIN DIVIDENDS AND DISTRIBUTIONS. If the
Company at any time or from time to time after the Issue Date makes, or fixes a
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional Common Stock,
then and in each such event the Conversion Price then in effect shall be
decreased as of the time of such issuance or, in the event such record date is
fixed, as of the close of business on such record date, by multiplying the
Conversion Price then in effect by a fraction (1) the numerator of which is the
total number of shares of Common Stock issued and outstanding immediately prior
to the time of such issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number of shares of Common Stock
issued and outstanding immediately prior to the time of such issuance or the
close of business on such record date plus the number of shares of Common Stock
issuable in payment of such dividend or distribution; PROVIDED, HOWEVER, that if
such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Conversion Price
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Conversion
9
Price shall be adjusted pursuant to this Section 8.5 as of the time of actual
payment of such dividends or distributions.
8.6 ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. In the event
the Company at any time or from time to time after the Issue Date makes, or
fixes a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
other than Common Stock or other assets or property of the Company (other than
ordinary cash dividends and any special dividends necessary to preserve the
Company's qualification as a REIT), then and in each such event provision shall
be made so that the holders of Series D Preferred Stock shall receive upon
conversion thereof, in addition to the number of shares of Common Stock
receivable thereupon, the amount of securities of the Company or other assets or
property of the Company which they would have received had their Series D
Preferred Stock been converted into Common Stock on the date of such event and
had they thereafter, during the period from the date of such event to and
including the conversion date, retained such securities or other assets or
property of the Company receivable by them as aforesaid during such period,
subject to all other adjustments called for during such period under this
Section 8 with respect to the rights of the holders of the Series D Preferred
Stock.
8.7 ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. In
the event that at any time or from time to time after the Issue Date, the Common
Stock or other securities as provided herein issuable upon the conversion of the
Series D Preferred Stock are changed into the same or a different number of
shares of any class or classes of stock, whether by recapitalization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend or a reorganization, merger, consolidation or sale of assets,
provided for elsewhere in this Section 8), then and in any such event each
holder of Series D Preferred Stock shall have the right thereafter to convert
such Series D Preferred Stock into the kind and amount of stock and other
securities and property receivable upon such recapitalization, reclassification
or other change, by holders of Common Stock or other securities as provided
herein into which such shares of Series D Preferred Stock could have been
converted immediately prior to such recapitalization, reclassification or
change, all subject to further adjustment as provided herein.
8.8 REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR TRANSFERS OF
ASSETS. If at any time or from time to time after
10
the Issue Date there is a capital reorganization of the Common Stock or other
securities issuable upon conversion of Series D Preferred Stock as provided
herein (other than a recapitalization, subdivision, combination,
reclassification or exchange of shares provided for elsewhere in this Section 8)
or a merger or consolidation or statutory binding share exchange of the Company
with or into another Person, or the transfer of all or substantially all of the
Company's properties and assets to any other Person and such capital
reorganization, merger, consolidation or transfer does not constitute a Change
in Control, then, as a part of such capital reorganization, merger,
consolidation, exchange or transfer, provision shall be made so that the holders
of Series D Preferred Stock shall thereafter be entitled to receive upon
conversion of Series D Preferred Stock the number of shares of stock or other
securities, cash or property to which a holder of the number of shares of Common
Stock or other securities deliverable upon conversion of the Series D Preferred
Stock would have been entitled on such capital reorganization, merger,
consolidation, exchange or transfer. In any such case, appropriate adjustment
shall be made in the application of the provisions of this Section 8 with
respect to the rights of the holders of the Series D Preferred Stock after the
capital reorganization, merger, consolidation, exchange or transfer to the end
that the provisions of this Section 8 (including adjustment of the Conversion
Price then in effect and the number of shares receivable upon conversion of the
Series D Preferred Stock) shall be applicable after that event and be as nearly
equivalent as may be practicable.
8.9 SALE OF SHARES BELOW FAIR MARKET VALUE. (a) If at any time or
from time to time after the Issue Date, the Company issues or sells, or is
deemed by the express provisions of this Section 8.9 to have issued or sold,
Additional Common Stock (as defined below), other than as a dividend or other
distribution on any class of stock as provided in Section 8.5 above and other
than upon a subdivision or combination of Common Stock as provided in Section
8.4 above, for an Effective Price (as defined below) less than the Fair Market
Value, then and in each such case the then existing Conversion Price shall be
reduced, as of the opening of business on the date of such issue or sale, to a
price determined by multiplying that Conversion Price by a fraction (i) the
numerator of which shall be equal to the sum of (A) the number of shares of
Common Stock issued and outstanding at the close of business on the Business Day
immediately preceding the date of such issue or sale, (B) the number of shares
of Common Stock which the aggregate consideration received (or by the express
provisions hereof is
11
deemed to have been received) by the Company for the total number of shares of
Additional Common Stock so issued or sold would purchase at such Fair Market
Value, (C) the number of shares of Common Stock into which all outstanding
Series C Preferred Stock and Series D Preferred Stock would be convertible at
the close of business on the Business Day immediately preceding the date of such
issuance or sale (whether or not the Series D Preferred Stock is then
convertible), and (D) the number of shares of Common Stock underlying all
Convertible Securities (as defined below) at the close of business on the
Business Day immediately preceding the date of such issuance or sale, and (ii)
the denominator of which shall be equal to the sum of (A) the number of shares
of Common Stock issued and outstanding at the close of business on the date of
such issuance or sale after giving effect to such issuance or sale of Additional
Common Stock, (B) the number of shares of Common Stock into which all
outstanding Series C Preferred Stock and Series D Preferred Stock would be
convertible at the close of business on the Business Day immediately preceding
the date of such issuance or sale (whether or not the Series D Preferred Stock
is then convertible), and (C) the number of shares of Common Stock underlying
all Convertible Securities at the close of business on the Business Day
immediately preceding the date of such issuance or sale.
(b) For the purpose of making any adjustment required under this
Section 8.9, the consideration for any issuance or sale of securities shall be
deemed to be (A) to the extent it consists of cash, equal to the gross amount
paid in such issuance or sale, (B) to the extent it consists of property other
than cash, equal to the Fair Market Value of that property, and (C) if
Additional Common Stock, Convertible Securities (as defined below) or rights or
options to purchase either Additional Common Stock or Convertible Securities are
issued or sold together with other stock, securities or assets of the Company
for a consideration which covers both, that portion of the consideration so
received that is determined in good faith by the Board to be allocable to such
Additional Common Stock, Convertible Securities or rights or options.
(c) For the purpose of the adjustment required under this Section
8.9, if the Company issues or sells any rights or options for the purchase of,
or stock or other securities convertible into or exchangeable or exercisable
for, Additional Common Stock (such convertible or exchangeable or exercisable
stock or securities being hereinafter referred to as "CONVERTIBLE SECURITIES")
and if the Effective Price of such
12
Additional Common Stock is less than the Fair Market Value, then in each case
the Company shall be deemed to have (i) issued at the time of the issuance of
such rights or options or Convertible Securities the number of shares of
Additional Common Stock issuable upon exercise, conversion or exchange thereof
irrespective of whether the holders thereof have the fully vested legal right to
exercise, convert or exchange the Convertible Securities for Additional Common
Stock and (ii) received as consideration for the issuance of such Additional
Common Stock an amount equal to the total amount of the consideration, if any,
received by the Company for the issuance of such rights or options or
Convertible Securities, plus, in the case of such rights or options, the
consideration, if any, payable to the Company upon the exercise of such rights
or options, plus, in the case of Convertible Securities, the consideration, if
any, payable to the Company (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) upon the exercise,
conversion or exchange thereof. No further adjustment of the Conversion Price,
as adjusted upon the issuance of such rights, options or Convertible Securities,
shall be made as a result of the actual issuance of Additional Common Stock on
the exercise of any such rights or options or the conversion or exchange of any
such Convertible Securities. If any such rights or options or the conversion or
exchange privilege represented by any such Convertible Securities shall expire
without having been exercised, the Conversion Price as adjusted upon the
issuance of such rights, options or Convertible Securities shall be readjusted
to the Conversion Price which would have been in effect had an adjustment been
made on the basis that the only shares of Additional Common Stock so issued were
the shares of Additional Common Stock, if any, actually issued or sold on the
exercise of such rights or options or rights of conversion or exchange of such
Convertible Securities, and such shares of Additional Common Stock, if any, were
issued or sold for the consideration actually received by the Company upon such
exercise, plus the consideration, if any, actually received by the Company for
the granting of the rights or options whether or not exercised, plus the
consideration received for issuing or selling the Convertible Securities
actually converted or exchanged, plus the consideration, if any, actually
received by the Company (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) on the conversion or
exchange of such Convertible Securities.
(d) "ADDITIONAL COMMON STOCK" shall mean all Common Stock issued
or issuable by the Company after the Issue Date,
13
whether or not subsequently reacquired or retired by the Company, other than (i)
Common Stock issued or issuable upon conversion of, or as a dividend on, any
Series C Preferred Stock or Series D Preferred Stock, (ii) Common Stock issued
or issuable pursuant to any employee benefit plan or similar plan or arrangement
intended to provide compensation and other benefits to officers, directors,
employees and consultants of the Company provided that such plans and any grants
or awards thereunder have been approved by the Board or a committee thereof,
(iii) securities issued by the Company in payment of a purchase price to the
seller or any Person who beneficially owns equity securities of such seller for
any acquisition of assets or a business, which acquisition is approved by the
Board, or (iv) Common Stock issued or issuable pursuant to the Rights Offering,
the Investment Agreement or upon issuance or conversion of the Series D
Preferred Stock. The "EFFECTIVE PRICE" of Additional Common Stock shall mean the
quotient determined by dividing the total number of shares of Additional Common
Stock issued or sold, or deemed to have been issued or sold by the Company, by
the aggregate consideration received, or deemed to have been received, by the
Company for such Additional Common Stock. The share numbers in this Section
8.9(d) shall be appropriately adjusted for any stock dividends, combinations,
splits, reverse splits, recapitalizations and similar events affecting the
securities of the Company.
8.10 CERTIFICATE OF ADJUSTMENT. In each case of an adjustment or
readjustment of the Conversion Price or the number of shares of Common Stock or
other securities issuable upon conversion of the Series D Preferred Stock, the
Company, at its expense, shall cause the Chief Financial Officer of the Company
to compute such adjustment or readjustment in accordance with the provisions
hereof and prepare a certificate showing such adjustment or readjustment, and
shall mail such certificate, by first class mail, postage prepaid, to each
registered holder of the Series D Preferred Stock at the holder's address as
shown in the Company's books. The certificate shall set forth such adjustment or
readjustment, showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (1) the consideration received
or deemed to be received by the Company for any Additional Common Stock issued
or sold or deemed to have been issued or sold, (2) the Conversion Price in
effect immediately prior to the occurrence of the event giving rise to such
adjustment, (3) the number of shares of Additional Common Stock, and (4) the
type and amount, if any, of other property which at the time would be received
upon conversion of the Series D Preferred Stock.
14
8.11 NOTICES OF RECORD DATE. In the event of (i) any taking by the
Company of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution or (ii) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company, any
merger or consolidation of the Company with or into any other entity, or any
transfer of all or substantially all of the assets of the Company to any other
person or any voluntary or involuntary dissolution, liquidation or winding up of
the Company, the Company shall mail to each holder of Series D Preferred Stock
at least ten days prior to the record date specified therein, a notice
specifying (1) the date on which any such record is to be taken for the purpose
of such dividend or distribution and a description of such dividend or
distribution, (2) the date on which any such reorganization, reclassification,
transfer, consolidation, merger, dissolution, liquidation or winding up is
expected to become effective, and (3) the date, if any, that is to be fixed, as
to when the holders of record of Common Stock (or other securities) shall be
entitled to exchange their Common Stock (or other securities) for securities or
other property deliverable upon such reorganization, reclassification, transfer,
consolidation, merger, dissolution, liquidation or winding up.
8.12 FRACTIONAL SHARES. No fractional shares of Common Stock shall
be issued upon conversion of Series D Preferred Stock. In lieu of any fractional
share to which the holder would otherwise be entitled (calculated based on the
aggregate number of shares of Common Stock to which such holder is entitled upon
such conversion), the Company shall pay cash equal to the product of such
fraction multiplied by the Fair Market Value of one share of Common Stock on the
date of conversion.
8.13 RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Company
shall at all times reserve and keep available out of its authorized but unissued
Common Stock, solely for the purpose of effecting the conversion of the Series D
Preferred Stock, such number of shares of its Common Stock and other securities,
if any, issuable upon conversion thereof as expressly provided in Section 8 as
shall from time to time be sufficient to effect the conversion of all
outstanding Series D Preferred Stock.
8.14 NOTICES. Any notice required or permitted by this Section 8 to
be given to a holder of Series D Preferred Stock or to the Company shall be in
writing and be deemed given upon the earlier of actual receipt or five days
after the same
15
has been deposited in the United States mail, by certified or registered mail,
return receipt requested, postage prepaid, and addressed (i) to each holder of
record at the address of such holder appearing on the books of the Company, or
(ii) to the Company at its registered office, or (iii) to the Company or any
holder, at any other address specified in a written notice given to the other
for the giving of notice.
8.15 PAYMENT OF TAXES. The Company will pay all taxes (other than
taxes based upon income) and other governmental charges that may be imposed with
respect to the issue and delivery of Common Stock upon conversion of Series D
Preferred Stock, including without limitation any tax or other charge imposed in
connection with the issue and delivery of Common Stock or other securities, if
any, issuable upon conversion thereof as expressly provided in Section 8 in a
name other than that in which the Series D Preferred Stock so converted were
registered.
8.16 CANCELLATION OF SHARES. Any shares of Series D Preferred Stock
which are converted in accordance with Section 8 or which are redeemed,
repurchased or otherwise acquired by the Company, shall be canceled and added to
the authorized but undesignated Preferred Stock of the Company but shall not be
reissued as Series D Preferred Stock.
9. RESTRICTIONS ON OWNERSHIP AND TRANSFER. Once there is a completed
public offering of the Series D Preferred Stock, if the Board shall, at any time
and in good faith, be of the opinion that actual or constructive ownership of at
least 9.9% or more of the value of the outstanding capital stock of the Company
has or may become concentrated in the hands of one owner (other than Explorer
Holdings, L.P. and its direct and indirect equity owners), the Board shall have
the power (i) by means deemed equitable by the Board, and pursuant to written
notice, to call for the purchase from any shareholder of the corporation a
number of shares of Series D Preferred Stock sufficient, in the opinion of the
Board, to maintain or bring the direct or indirect ownership of such beneficial
owner to no more than 9.9% of the value of the outstanding capital stock of the
corporation, and (ii) to refuse to transfer or issue shares of Series D
Preferred Stock to any person whose acquisition of such Series D Preferred Stock
would, in the opinion of the Board, result in the direct or indirect ownership
by that person of more than 9.9% of the value of the outstanding capital stock
of the Company. The purchase price for any shares of Series D Preferred Stock
shall be equal to the fair market value of the shares reflected in the closing
sales price for the shares, if
16
then listed on a national securities exchange, or if the shares are not then
listed on a national securities exchange, the purchase price shall be equal to
the Liquidation Preference of such shares of Series D Preferred Stock. Payment
of the purchase price shall be made within thirty days following the date set
forth in the notice of call for purchase, and shall be made in such manner as
may be determined by the Board. From and after the date fixed for purchase by
the Board, as set forth in the notice, the holder of any shares so called for
purchase shall cease to be entitled to distributions and other benefits with
respect to such shares, excepting only the right to payment of the purchase
price fixed as aforesaid. Any transfer of Series D Preferred Stock that would
create an actual or constructive owner of more than 9.9% of the value of the
outstanding shares of capital stock of this Company shall be deemed VOID AB
INITIO and the intended transferee shall be deemed never to have had an interest
therein. If the foregoing provision is determined to be void or invalid by
virtue of any legal decision, statute, rule or regulation, then the transferee
of such Series D Preferred Stock shall be deemed, at the option of the Company,
to have acted as agent on behalf of the Company in acquiring such shares and to
hold such shares on behalf of the Company.
Notwithstanding anything herein to the contrary, nothing herein shall authorize
the Company or its transfer agent to refuse to transfer any shares of Series D
Preferred Stock, passing either by voluntary transfer, by operation of law, or
under the last will and testament of any shareholder, if such transfer would
not, in the written opinion of counsel to the transferor reasonably acceptable
to the Company, disqualify the Company as a Real Estate Investment Trust under
the Code. Nothing herein contained shall limit the ability of the Company to
impose or to seek judicial or other imposition of additional restrictions if
deemed necessary or advisable to preserve the Company's tax status as a
qualified Real Estate Investment Trust.
10. CERTAIN DEFINED TERMS. In addition to the terms defined elsewhere
in these Articles Supplementary or the Charter, the following terms will have
the following meanings when used herein with initial capital letters:
(a) "BUSINESS DAY" means any day (other than a day which is a
Saturday, Sunday or legal holiday in New York City, or any day on which banks in
New York City are authorized by law to close).
17
(b) "CHANGE IN CONTROL" means the occurrence of any of the
following in one or a series of related transactions: (A) any consolidation,
merger, reorganization, share exchange or other form of business combination
transaction involving the Company in which the holders of the Company's Voting
Stock immediately before such transaction do not, immediately after such
transaction, retain Voting Stock representing a majority of the voting power of
the acquiring entity, the Company or the entity surviving such transaction or
(B) the sale, transfer or assignment of Voting Stock of the Company representing
a majority of the voting power of the Company to an acquiring Person; provided,
however, that any transaction described in clause (A) or (B) in which Voting
Stock of the Company or the acquiring or surviving entity in such transaction
representing a majority of the voting power of such Person is acquired by or
from Explorer Holdings, L.P., its partners and/or their respective Affiliates in
one transaction or a series of related transactions shall not be deemed a Change
in Control.
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(d) "FAIR MARKET VALUE" of any security or other asset means:
(i) In the case of any security:
(A) if the security is traded on a securities exchange,
the weighted average trading volume of the per share closing prices of the
security on such exchange over the five trading day period ending three trading
days prior to the date on which such value is measured;
(B) if the security is traded over-the-counter, the
weighted average trading volume of the per share closing bid prices of the
security over the five trading day period ending three trading days prior to the
date on which such value is measured; or
(C) if there is no public market for such security that
meets the criteria set forth in (A) or (B) above, the Fair Market Value shall be
the per share fair market value of such security as of the date on which such
value is measured, as determined in good faith by the Board.
18
(ii) In the case of assets other than securities, the
Fair Market Value shall be the fair market value of such assets, as determined
in good faith by the Board.
(e) "LIQUIDATION PREFERENCE" measured per share of Series D
Preferred Stock as of any date in question (the "RELEVANT DATE"), means an
amount equal to the Original Issue Price of such share, plus an amount equal to
any accrued and unpaid dividends at the rate set forth in Section 4 hereof, if
any, for such share of Series D Preferred Stock. In connection with the
determination of the Liquidation Preference of a share of Series D Preferred
Stock upon liquidation, dissolution or winding up of the Company, the Relevant
Date shall be the date of distribution of amounts payable to stockholders in
connection with any such liquidation, dissolution or winding up.
(f) "ORIGINAL ISSUE PRICE" means $___ per share of Series D
Preferred Stock, subject to appropriate adjustment to reflect any stock
dividends, combinations, splits, reverse splits, recapitalizations or similar
events affecting the Series D Preferred Stock after the Issue Date.
(g) "PERSON" means any individual, firm, corporation,
partnership, limited liability company, or group (within the meaning of Section
13(d)(3) of the Exchange Act).
(h) "RIGHTS OFFERING" means the offering of shares of common
stock by the Company pursuant to Section 4.7 of the Investment Agreement, dated
as of October 29, 2001, relating to the Series D Preferred Stock (the
"INVESTMENT AGREEMENT").
(i) "VOTING STOCK" means, with respect to any Person, the shares
of any class or kind ordinarily having the power to vote for the election of
directors or other members of the governing body of such Person, and for
purposes hereof, the Series D Preferred Stock whether or not then convertible.
For avoidance of doubt, Common Stock and Series C Preferred Stock both
constitute Voting Stock of the Company; PROVIDED, HOWEVER, that no class of
Preferred Stock shall be deemed to be Voting Stock by virtue of the rights of
such holder upon any Preferred Dividend Default.
11. AMENDMENT; WAIVER. Except as expressly prohibited by law, these
Articles Supplementary may be amended and any provision herein may be waived
with the approval of the holders of a majority of the Series D Preferred Stock
and a majority of the members of the Board who are not Affiliates of any holder
of
19
Series D Preferred Stock. Any amendment or waiver so effected shall be binding
upon each holder of Series D Preferred Stock.
THIRD: The classification of authorized but unissued shares as
set forth in these Articles Supplementary does not increase the authorized
capital of the Company or the aggregate par value thereof.
FOURTH: These Articles Supplementary have been approved by the
Board in the manner and by the vote required by law.
FIFTH: The undersigned Vice President of the Company acknowledges
these Articles Supplementary to be the corporate act of the Company and, as to
all matters or facts required to be verified under oath, the undersigned Vice
President of the Company acknowledges that to the best of his or her knowledge,
information and belief, these matters and facts are true in all material
respects and that this statement is made under the penalties for perjury.
20
IN WITNESS WHEREOF, the Company has caused these Articles
Supplementary to be executed under seal in its name and on its behalf by its
Vice President and attested to by its Secretary on this ___ day of ________,
2001.
ATTEST OMEGA HEALTHCARE INVESTORS,
INC.
By:_________________________ By:________________________
Secretary Vice President
EX-99.D
6
a2062165zex-99_d.txt
EXHIBIT 99(D)
EXHIBIT 99.D
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "AGREEMENT"), dated
as of ____________ __, 2001, between Explorer Holdings, L.P., a Delaware limited
partnership ("STOCKHOLDER"), and Omega Healthcare Investors, Inc., a Maryland
corporation (the "COMPANY").
WHEREAS, the Company and Stockholder have entered into an Investment
Agreement, dated as of October 29, 2001 (the "INVESTMENT AGREEMENT"), pursuant
to which, among other things, Stockholder acquired shares of [Common Stock]
[Series D Preferred Stock, par value $1.00 per share, of the Company (the
"SERIES D PREFERRED"), which are convertible into shares of common stock, par
value $0.10 per share, of the Company (the "COMMON STOCK") under certain
circumstances];
WHEREAS, the Company and Stockholder are parties to that certain
Stockholders Agreement, dated as of July 14, 2000 (the "ORIGINAL AGREEMENT");
and
WHEREAS, the Company and the Stockholder wish to amend and restate the
Original Agreement in its entirety.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
I. DEFINITIONS
--------------
1.1 DEFINITIONS. Capitalized terms used herein and not defined
herein will have the meaning set forth in the Investment Agreement. In addition
to the terms defined elsewhere herein, the following terms have the following
meanings when used herein with initial capital letters:
(a) "AFFILIATE" of any Person means any other Person, that,
directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such Person; and, for the
purposes of this definition only, "CONTROL" (including the terms "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the possession, direct or
indirect, of the power to direct or cause the direction of the
management, policies or activities of a Person whether through the ownership of
securities, by contract or agency or otherwise.
(b) "ASSUMPTION AGREEMENT" means an agreement in writing in
substantially the form of EXHIBIT A hereto pursuant to which the party thereto
agrees to be bound by the terms and provisions of Sections 2.2, 2.5, 3.1 and 3.2
of this Agreement.
(c) A Person will be deemed the "BENEFICIAL OWNER" of, and will be
deemed to "BENEFICIALLY OWN", and will be deemed to have "BENEFICIAL OWNERSHIP"
of:
(i) any securities that such Person or any of such Person's
Affiliates is deemed to "BENEFICIALLY OWN" within the meaning of Rule 13d-3
under the Exchange Act, as in effect on the date of this Agreement; and
(ii) any securities (the "UNDERLYING SECURITIES") that such
Person or any of such Person's Affiliates has the right to acquire (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (written or oral), or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise (it being understood that such Person will also be deemed to be the
beneficial owner of the securities convertible into or exchangeable for the
underlying securities).
(d) "BOARD" means the Board of Directors of the Company.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(f) "PERSON" means an individual, a corporation, a partnership, a
limited partnership, a limited liability company, an association, a trust or
other entity or organization, including without limitation a government or
political subdivision or an agency or instrumentality thereof.
(g) "PUBLIC OFFERING" means the sale of shares of any class of
Securities to the public pursuant to an effective registration statement (other
than a registration statement on
2
Form S-4 or S-8 or any similar or successor form) filed under the Securities
Act.
(h) "REGISTRATION RIGHTS AGREEMENT" means the Amended and Restated
Registration Rights Agreement, dated as of the date hereof, between Stockholder
and the Company and any other registration rights agreement entered into in
accordance with Article III hereof.
(i) "SECURITIES" means the Common Stock, the Series C Preferred,
the Series D Preferred, all other securities of the Company entitled to vote
generally in the election of the directors of the Company, and all other
securities convertible into, exchangeable for or exercisable for any such
securities (whether immediately or otherwise).
(j) "SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(k) "TRANSFER" means a transfer, sale, assignment, pledge,
hypothecation or disposition.
(l) "VOTING SECURITIES" means all Securities, other than the
Series D Preferred.
II. GOVERNANCE; RESTRICTIONS ON
--------------------------------
ACQUISITION OF VOTING SECURITIES
--------------------------------
2.1 NOMINATION AND VOTING FOR STOCKHOLDER DESIGNEES AND
INDEPENDENT DIRECTOR. (a) From and after the Stockholder Approval Date,
Stockholder will be entitled at Stockholder's election to designate from time to
time up to such number of directors to the Board (the "STOCKHOLDER DESIGNEES")
based on the percentage of the Company's total issued and outstanding Voting
Securities beneficially owned by Stockholder, as set forth in the table below:
3
PERCENTAGE OF VOTING
SECURITIES BENEFICIALLY
OWNED BY STOCKHOLDER NUMBER OF STOCKHOLDER DESIGNEES
------------------------ -------------------------------
Less than 5.00% 0
5.00% - 14.99% 1
15.0% - 24.99% 2
25.0% - 34.99% 3
35.0% - 44.99% 4
45.0% - 49.99% 5
Greater than 50.0% 6
(b) Between the date hereof and the Stockholder Approval Date,
Stockholder will be entitled at Stockholder's election to designate from time to
time up to such number of directors to the Board based on the percentage of the
Company's total issued and outstanding Voting Securities beneficially owned by
Stockholder, as set forth in the table below:
PERCENTAGE OF VOTING
SECURITIES BENEFICIALLY
OWNED BY STOCKHOLDER NUMBER OF STOCKHOLDER DESIGNEES
------------------------- -------------------------------
Less than 5.00% 0
5.00% - 16.67% 1
16.67% - 27.78% 2
27.78% - 38.89% 3
38.89% - 50.00% 4
Greater than 50.0% 5
(c) The Company, at each meeting of stockholders of the Company at
which directors are elected or pursuant to which such action is to be taken by
written consent, will nominate for election as directors of the Company such
number of Stockholder Designees such that following such election the
Stockholder Designees who are members of the Board represent the aggregate
number of Stockholder Designees that Stockholder is permitted to designate
pursuant to this Section 2.1. Ninety calendar days prior to any such meeting or
action by written consent, Stockholder will provide the Company with the
information required pursuant to Regulation 14A under the Exchange Act with
respect to each such Stockholder Designee. The Company will solicit proxies from
its stockholders for such nominees, vote all proxies in favor of such nominees,
except for such proxies that specifically indicate to the contrary, and
otherwise use
4
its best efforts to cause such nominees to be elected to the Board as herein
contemplated.
(d) The Stockholder Designees will be apportioned among the three
classes of directors as equal as possible; PROVIDED, HOWEVER, that in the event
that the number of Stockholder Designees determined pursuant to Section 2.1 is
not evenly divisible by three, such additional Stockholder Designee or Designees
shall be nominated to the class or classes of directors with the longest term of
office. Each Stockholder Designee will serve until his successor is elected and
qualified or until his earlier resignation, retirement, disqualification,
removal from office, or death.
(e) Notwithstanding anything in the bylaws of the Company to the
contrary, if any Stockholder Designee ceases to be a director of the Company for
any reason, the Company will promptly upon the request of Stockholder cause a
person designated by Stockholder to replace such director if Stockholder is so
entitled.
(f) Stockholder agrees to cause a Stockholder Designee to promptly
resign in the event Stockholder's beneficial ownership of Voting Securities
declines such that Stockholder would no longer have the right to designate such
person.
(g) From and after the date the stockholders of the Company vote
to approve the amendment of the Company's Articles of Restatement and bylaws to
permit an increase in the size of the Board to eleven (the "STOCKHOLDER APPROVAL
DATE"), the Company will take all actions as may be necessary to appoint C.
Taylor Pickett to the Board. The Company covenants that the total number of
seats on the Board (including any vacant seats) will in no event exceed ten
unless otherwise agreed to in writing by Stockholder or as provided pursuant to
the terms of the Series A, B, C or D Preferred Stock in effect on the date
hereof, or in the case of the Series C Preferred Stock, pursuant to the Amended
Series C Articles Supplementary contemplated by the Investment Agreement.
(h) Except as may otherwise be required under the rules of The New
York Stock Exchange or the SEC or as may be agreed to by a majority of the
Stockholder Designees, at all times after the date hereof, the Company will take
such action to ensure that the Stockholder Designees are represented on each
committee of the Board in at least the same proportion as their representation
on the entire Board and that each committee will
5
consist of at least three members, other than any committee comprised solely of
Non-Stockholder Designees established for the purpose of considering
transactions in which the Stockholder or its Affiliates or Associates have an
interest different from other stockholders of the Company.
(i) Notwithstanding anything to the contrary in this Agreement or
the Articles Supplementary for the Series C Preferred Stock of the Company,
prior to the receipt by the Company of Stockholder Approval for the Amended
Series C Articles Supplementary, in the event the holders of the Series A
Preferred Stock or Series B Preferred Stock shall be entitled to elect
Additional Preferred Stock Directors (as defined in the Articles Supplementary
for each of the Series A Preferred Stock and the Series B Preferred Stock), then
the number of Stockholder Designees Stockholder shall be entitled to designate
shall be increased by two.
2.2 VOTING FOR OTHER DIRECTORS. (a) (a) For as long as Stockholder
beneficially owns at least 15.0% of the issued and outstanding Voting
Securities, Stockholder will vote all Voting Securities that it beneficially
owns to elect as directors (i) three Independent Directors and (ii) from and
after the date the Board is increased to ten members, one additional Person who
is not an Affiliate or Associate of Stockholder or its Affiliates or Associates
(other than the Company) (such designees, "NON-STOCKHOLDER DESIGNEES").
(b) The Company shall use its best efforts to cause the
Non-Stockholder Designees selected in accordance with this Section 2.2 to serve
on the Board. The Company, at each meeting of stockholders of the Company at
which directors are elected or pursuant to which such action is to be taken by
written consent, will nominate for election as directors of the Company such
number of Non-Stockholder Designees such that following such election the
Non-Stockholder Designees who are members of the Board represent the aggregate
number of Non-Stockholder Designees that are to be elected in accordance with
this Section 2.2. The Company will solicit proxies from its stockholders for
such nominees, vote all proxies in favor of such nominees, except for such
proxies that specifically indicate to the contrary, and otherwise use its best
efforts to cause such nominees to be elected to the Board as herein
contemplated. Notwithstanding anything in the bylaws of the Company to the
contrary, in the event any Non-Stockholder Designee shall be unable to serve as
a director, a replacement for such director shall be designated in the same
manner as set forth in this Section 2.2.
6
(c) "INDEPENDENT DIRECTOR" shall mean a Person who (i) satisfies
the qualification requirements as an "independent" director and as
a member of the audit committee of the Company under the rules and
regulations of The New York Stock Exchange and (ii) is not an Affiliate of
Stockholder.
2.3 OTHER VOTING RIGHTS. Stockholder and the Company agree that
under applicable law, including without limitation Section 2-419 of the MGCL,
and pursuant to the Company's constituent documents, neither the Stockholder nor
the Stockholder Designees would be precluded, and the Company agrees that it
will not assert that the Stockholder or any of the Stockholder Designees is
precluded, from voting with respect to any transaction involving Stockholder
following appropriate disclosure to the then directors of any circumstances that
could provide the basis for an assertion of a conflict of interest.
2.4 ACCESS. The Company will, and will cause its subsidiaries and
each of the Company's and its subsidiaries' officers, directors, employees,
agents, representatives, accountants and counsel to: (a) afford the officers,
employees and authorized agents, accountants, counsel, financing sources and
representatives of Stockholder reasonable access, during normal business hours,
to the offices, properties, other facilities, books and records of the Company
and each subsidiary and to those officers, directors, employees, agents,
accountants and counsel of the Company and of each subsidiary who have any
knowledge relating to the Company or any subsidiary and (b) furnish to the
officers, employees and authorized agents, accountants, counsel, financing
sources and representatives of Stockholder, such additional financial and
operating data and other information regarding the assets, properties and
goodwill of the Company and its subsidiaries (or legible copies thereof) as
Stockholder may from time to time reasonably request (other than information and
material from the Company's counsel which is subject to the attorney/client
privilege, which information and material shall be made available to the
Stockholder Designees in their capacity as members of the Board).
2.5 RESTRICTION ON ACQUISITION OF VOTING SECURITIES. Except in
connection with the acquisition of Voting Securities in a transaction approved
by a committee of the Board, all of the members of which committee shall consist
of Non-Stockholder Designees, Stockholder will not purchase or otherwise acquire
beneficial ownership of more than 80% of the Voting Securities then issued and
outstanding. Notwithstanding the foregoing, Stockholder shall not be in breach
of this Section 2.5 as the result of (i) an acquisition of Voting Securities by
the Company which, by reducing the number of Voting Securities outstanding,
7
increases the proportionate number of Voting Securities beneficially owned by
Stockholder in excess of 80% of the Voting Securities then issued and
outstanding, (ii) the acquisition by Stockholder of newly issued Voting
Securities directly from the Company, or (iii) any increase in the number of
Voting Securities beneficially owned by Stockholder as a result of the
anti-dilution provisions of any Voting Securities. This Section 2.5 will
immediately terminate if a third party publicly announces an intent to effect a
transaction, "commence a tender offer" (within the meaning of Rule 14d-2 under
the Exchange Act), or enter into an agreement contemplating the acquisition of,
20% or more of the Voting Securities then issued and outstanding.
III. TRANSFER OF SECURITIES
---------------------------
3.1 TRANSFER OF VOTING SECURITIES BY STOCKHOLDER. (a) Stockholder
agrees that Stockholder will not Transfer Voting Securities beneficially
owned by it, the effect of which would cause the transferee to acquire
beneficial ownership of 10% or more of the Voting Securities then-outstanding
(other than to any Affiliate of Stockholder), unless, prior to such Transfer
(i) notice of such Transfer is given to the Company and (ii) the Person to
whom such Voting Securities are to be Transferred enters into an Assumption
Agreement.
(b) In the event of any purported Transfer by Stockholder of any
Voting Securities not made in compliance with this Section 3.1, such purported
Transfer will be void and of no effect and the Company will not give effect to
such Transfer. The Company shall be entitled to treat the prior owner as the
holder of any such Securities not Transferred in accordance with this Agreement.
3.2 LEGEND. Each certificate representing Securities issued to
Stockholder will bear a legend on the face thereof substantially to the
following effect (with such additions thereto or changes therein as the Company
may be advised by counsel are required by law (the "LEGEND")):
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED
UNDER THAT ACT OR ANY OTHER APPLICABLE LAW OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
8
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO AN AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, DATED
___________ __, 2001, BETWEEN THE COMPANY AND EXPLORER HOLDINGS, L.P.,
A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SUCH AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT."
The Legend will be removed by the Company by the delivery of a legal opinion
from counsel to the Stockholder to the effect that such legend is no longer
required for purposes of applicable securities laws. In connection with the
foregoing, the Company agrees that, if the Company is required to file reports
under the Exchange Act, for so long as and to the extent necessary to permit the
Stockholder to sell any Securities pursuant to Rule 144, the Company will use
its reasonable efforts to file, on a timely basis, all reports required to be
filed with the SEC by it pursuant to Section 13 of the Exchange Act, furnish to
the Stockholder upon request a written statement as to whether the Company has
complied with such reporting requirements during the 12 months preceding any
proposed sale under Rule 144 and otherwise use its reasonable efforts to permit
such sales pursuant to Rule 144.
3.3 TRANSFERS OF VOTING SECURITIES BY STOCKHOLDER. The Company and
its transfer agent may not refuse to Transfer any Voting Securities, passing
either by voluntary Transfer or by operation of law, by Stockholder if such
Transfer (i) complies with Section 3.1 hereof and (ii) would not, in the written
opinion of counsel to Stockholder reasonably acceptable to the Company,
disqualify the Company as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended.
3.4 REGISTRATION RIGHTS. Upon consummation of any Transfer of
Securities constituting 5% or more of the Securities (other than a Transfer in a
Public Offering or pursuant to Rule 144 under the Securities Act), the Company
will enter into a registration rights agreement in favor of such transferee
substantially in the form of the Registration Rights Agreement, with such
modifications thereto as are acceptable to such transferee that do not
materially increase the Company's obligations thereunder (excluding the effects
of multiple parties); provided, however, that in no event will the Company be
required to grant more than one demand registration right for
9
every 5% of Securities then outstanding involved in such Transfer of Securities.
IV. MISCELLANEOUS
------------------
4.1 TERMINATION. (a) The provisions of this Agreement will
terminate, and be of no further force or effect (other than with respect to
prior breaches), on the fifth anniversary of the date of this Agreement.
(b) Any portion or all of this Agreement will terminate and be of
no further force and effect upon a written agreement of the parties to that
effect.
4.2 SPECIFIC PERFORMANCE. The parties agree that any breach by
either of them of any provision of this Agreement would irreparably injure the
Company or the Investor, as the case may be, and that money damages would be an
inadequate remedy therefor. Accordingly, the parties agree that the other party
will be entitled to one or more injunctions enjoining any such breach and
requiring specific performance of this Agreement and consent to the entry
thereof, in addition to any other remedy to which such other party is entitled
at law or in equity.
4.3 NOTICES. All notices, requests and other communications to
either party hereunder will be in writing (including telecopy or similar
writing) and will be given:
IF TO THE COMPANY, TO:
---------------------
Omega Healthcare Investors, Inc.
900 Victors Way, Suite 350
Ann Arbor, Michigan 48108
Attention: Chief Financial Officer
Fax: (734) 887-0322
10
WITH A COPY TO:
--------------
Powell, Goldstein, Frazer & Murphy LLP
191 Peachtree Street, N.E.
Suite 1600
Atlanta, Georgia 30303
Attention: Rick Miller or
Eliot Robinson
Fax: (404) 572-6999
IF TO STOCKHOLDER, TO:
---------------------
Explorer Holdings, L.P.
c/o The Hampstead Group, L.L.C.
4200 Texas Commerce Tower West
2200 Ross Avenue
Dallas, Texas 75801
Attention: William T. Cavanaugh
Fax: (214) 220-4949
WITH A COPY TO:
--------------
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Attention: Thomas W. Bark
Fax: (212) 755-7306
or such other address or telecopier number as such party may hereafter specify
by notice to the other party hereto. Each such notice, request or other
communication shall be effective only when actually delivered at the address
specified in this Section 4.3, if delivered prior to 5:00 (local time) and such
day is a Business Day, and if not, then such notice, request or other
communication shall not be effective until the next succeeding Business Day.
4.4 AMENDMENTS: NO WAIVERS. (a) Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by the Company and Stockholder, or in
the case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder will operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies
11
herein provided will be cumulative and not exclusive of any rights or remedies
provided by law.
4.5 SUCCESSORS AND ASSIGNS. The provisions of this Agreement will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, PROVIDED, HOWEVER, that none of the parties
may assign, delegate or otherwise transfer any of their rights or obligations
under this Agreement without the written consent of the other party hereto.
Neither this Agreement nor any provision hereof is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
4.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which will be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement will become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
4.7 ENTIRE AGREEMENT. This Agreement, the Investment Agreement,
the Registration Rights Agreement and the documents contemplated thereby (and
all schedules and exhibits thereto) constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements, understandings and negotiations, both written and oral, between the
parties with respect thereto.
4.8 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware, without giving effect to
the principles of conflict of laws thereof.
4.9 CALCULATION OF BENEFICIAL OWNERSHIP. Any provision in this
Agreement that refers to a percentage of Voting Securities shall be calculated
based on the aggregate number of issued and outstanding shares of Common Stock
at the time of such calculation (including any shares of Common Stock that would
then be issuable upon the conversion of the Series C Preferred, Series D
Preferred or any outstanding convertible security), but shall not include any
shares of Common Stock issuable upon any options, warrants or other securities
that are exercisable for Common Stock.
4.10 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and
12
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
4.11 JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each party
hereby irrevocably and unconditionally submits, for itself and its property, to
the exclusive jurisdiction of any state or federal court located in the State of
Delaware (as applicable, a "DELAWARE COURT"), and any appellate court from any
such court, in any suit, action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment resulting from any
such suit, action or proceeding, and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in the Delaware Court.
(b) It will be a condition precedent to each party's right to
bring any such suit, action or proceeding that such suit, action or proceeding,
in the first instance, be brought in the Delaware Court (unless such suit,
action or proceeding is brought solely to obtain discovery or to enforce a
judgment), and if each such court refuses to accept jurisdiction with respect
thereto, such suit, action or proceeding may be brought in any other court with
jurisdiction.
(c) No party may move to (i) transfer any such suit, action or
proceeding from the Delaware Court to another jurisdiction, (ii) consolidate any
such suit, action or proceeding brought in the Delaware Court with a suit,
action or proceeding in another jurisdiction, or (iii) dismiss any such suit,
action or proceeding brought in the Delaware Court for the purpose of bringing
the same in another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, (i) any objection
which it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement in the Delaware
Court, (ii) the defense of an inconvenient forum to the maintenance of such
suit, action or proceeding in any such court, and (iii) the right to object,
with respect to such suit, action or proceeding, that such court does not
have jurisdiction over such party. Each party irrevocably consents to service
of process in any manner permitted by law. Notwithstanding the foregoing,
this Section 4.11 will not apply to (x) any suit, action or
13
proceeding by a party seeking indemnification or contribution pursuant to
this Agreement or otherwise in respect of a suit, action or proceeding
against such party by a third party if such suit, action or proceeding by
such party seeking indemnification or contribution is brought in the same
court as the suit, action or proceeding against such party or (y) any suit,
action or proceeding to enforce a judgment of a Delaware Court.
4.12 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF
OR IN ANY WAY RELATED TO THIS AGREEMENT.
4.13 NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
EXPLORER HOLDINGS, L.P.
By: EXPLORER HOLDINGS GENPAR,
L.L.C., its General Partner
By:
----------------------------------
William T. Cavanaugh, Jr.
Vice President
OMEGA HEALTHCARE INVESTORS, INC.
By:
----------------------------------
C. Taylor Pickett
Chief Executive Officer
15
EXHIBIT A
---------
FORM OF ASSUMPTION AGREEMENT
----------------------------
The undersigned hereby agrees, effective as of the date hereof, to
become a party to, and be bound by the provisions of, Sections 2.2, 2.5, 3.1 and
3.2 of that certain Amended and Restated Stockholders Agreement (the
"Agreement") dated as of ________ ___, 2001 by and between Omega Healthcare
Investors, Inc. and Explorer Holdings, L.P. and for all purposes of such
sections of the Agreement, the undersigned shall be included within the term
"Stockholder" (as defined in the Agreement). The address and facsimile number to
which notices may be sent to the undersigned is as follows:
----------------------------
----------------------------
----------------------------
Facsimile No.---------------
[Name]
By: _____________________________
Name:
Title:
EX-99.(E)
7
a2062165zex-99_e.txt
EXHIBIT 99(E)
EXHIBIT 99.E
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT"), dated as of ________ __, 2001, between Explorer Holdings, L.P., a
Delaware limited partnership ("STOCKHOLDER"), and Omega Healthcare Investors,
Inc., a Maryland corporation (the "COMPANY").
RECITALS
WHEREAS, the parties hereto are parties to that certain
Registration Rights Agreement, dated as of July 14, 2000 (the "ORIGINAL
AGREEMENT"); and
WHEREAS, the parties wish to amend and restate the Original
Agreement in its entirety in connection with the closing of the transactions
contemplated by the Series D Investment Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, the parties hereto hereby
agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
terms have the following meanings when used herein with initial capital letters:
(a) ADVICE: As defined in Section 6 hereof.
(b) COMMON STOCK: The Common Stock, par value $0.10 per share,
of the Company.
(c) DEMAND NOTICE: As defined in Section 3 hereof.
(d) DEMAND REGISTRATION: As defined in Section 3 hereof.
(e) EFFECTIVE DATE: The date of closing of the transactions
contemplated by the Series D Investment Agreement.
(f) LOSSES: As defined in Section 8 hereof.
(g) PIGGYBACK REGISTRATION: As defined in Section 4 hereof.
(h) PROSPECTUS: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
(i) REGISTRABLE SECURITIES: All shares of Series C Preferred,
Series D Preferred, and Common Stock acquired by Stockholder or any of its
Affiliates or any permitted transferee or their respective assigns of any such
Person (including (i) all shares of Common Stock issued upon conversion of any
shares of Series C Preferred or Series D Preferred and (ii) any shares of Series
C Preferred, Series D Preferred, or Common Stock or other securities that may be
received by Stockholder or any permitted transferee or their respective assigns
(x) as a result of a dividend or stock split of Series C Preferred, Series D
Preferred, or Common Stock or (y) on account of Series C Preferred, Series D
Preferred, or Common Stock in a recapitalization or other transaction involving
the Company) upon the respective original issuance thereof, and at all times
subsequent thereto, and all other securities of the Company of any class or
series that are beneficially owned by Stockholder or any of its Affiliates,
until, in the case of any such security, (i) it is effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
covering it, (ii) it is saleable by the holder thereof pursuant to Rule 144(k)
without any volume limitation applicable thereto, or (iii) it is distributed to
the public pursuant to Rule 144.
(j) REGISTRATION EXPENSES: As defined in Section 7 hereof.
(k) REGISTRATION STATEMENT: Any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
2
(l) RULE 144: Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
(m) SEC: The Securities and Exchange Commission.
(n) SECURITIES ACT: The Securities Act of 1933, as amended.
(o) SERIES C INVESTMENT AGREEMENT: The Investment Agreement,
dated as of May 11, 2000, by and between the Company and Stockholder relating to
the purchase and sale of Series C Preferred.
(p) SERIES C PREFERRED: Shares of Series C Preferred Stock,
par value $1.00 per share, of the Company.
(q) SERIES D INVESTMENT AGREEMENT: The Investment Agreement,
dated as of October 29, 2001, by and between the Company and Stockholder
relating to the purchase and sale of Series D Preferred.
(r) SERIES D PREFERRED: Shares of Series D Preferred Stock,
par value $1.00 per share, of the Company.
(s) UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
distribution, registered pursuant to the Securities Act in which securities of
the Company are sold to an underwriter for reoffering to the public.
2. HOLDERS OF REGISTRABLE SECURITIES. Whenever a number or
percentage of Registrable Securities is to be determined hereunder, each
then-outstanding other equity security that is exercisable to purchase,
convertible into, or exchangeable for shares of Common Stock of the Company will
be deemed to be equal to the number of shares of Common Stock for which such
other equity security (or the security into which such other equity security is
then convertible) is then so purchasable, convertible, exchangeable or
exercisable.
3. DEMAND REGISTRATION. (a) REQUESTS FOR REGISTRATION. At any
time and from time to time after the Effective Date, the holder(s) of
Registrable Securities constituting at least 15% of the total number of
Registrable Securities then outstanding will have the right by written notice
delivered to the Company (a "DEMAND NOTICE"), to require the Company to register
(a "DEMAND REGISTRATION") under and in accordance with the provisions of the
Securities Act a number of Registrable Securities that would
3
reasonably be expected to result in aggregate gross proceeds from such offering
of not less than $7.5 million ($1 million in the case of any Demand Registration
that is requested to be effected as a "shelf" registration); PROVIDED, HOWEVER,
that no Demand Notice may be given prior to six months after the effective date
of the immediately preceding Demand Registration or any Piggyback Registration
of which the Company has notified the Holder in accordance with Section 4(a) and
for which the number of Registrable Securities requested to be registered by the
Holder has not been reduced pursuant to Section 4(b).
(b) FILING AND EFFECTIVENESS. The Company will file a
Registration Statement relating to any Demand Registration within 30 calendar
days, and will use its reasonable efforts to cause the same to be declared
effective by the SEC as soon as practicable thereafter, and in any event, within
45 calendar days, of the date on which the Registration Statement is first filed
with the SEC.
All requests made pursuant to this Section 3 will specify the
number of Registrable Securities to be registered and will also specify the
intended methods of disposition thereof; PROVIDED, that if the holder demanding
such registration specifies one particular type of underwritten offering, such
method of disposition shall be such type of underwritten offering or a series of
such underwritten offerings (as such demanding holders of Registrable Securities
may elect) during the period during which the Registration Statement is
effective.
The Company will keep the Registration Statement filed in
respect of a Demand Registration effective for a period of up to 90 calendar
days from the date on which the SEC declares such Registration Statement
effective (subject to extensions pursuant to Section 6 hereof) or such shorter
period that will terminate when all Registrable Securities deemed by such
Registration Statement have been sold pursuant to such Registration Statement.
If any Demand Registration is requested to be effected as a "shelf" registration
by the holders of Registrable Securities demanding such Demand Registration, the
Company will keep the Registration Statement filed in respect thereof effective
for a period of up to 12 months from the date on which the SEC declares such
Registration Statement effective (subject to extension pursuant to Section 6
hereof) or such shorter period that will terminate when all Registrable
Securities covered by such Registration Statement have been sold pursuant to
such Registration Statement.
4
Within ten calendar days after receipt of such Demand Notice,
the Company will serve written notice thereof (the "NOTICE") to all other
holders of Registrable Securities and will, subject to the provisions of Section
3(c) hereof, include in such registration all Registrable Securities with
respect to which the Company receives written requests for inclusion therein
within 20 calendar days after the receipt of the Notice by the applicable
holder.
The holders of Registrable Securities will be permitted to
withdraw Registrable Securities from a Registration at any time prior to the
effective date of such registration.
(c) PRIORITY ON DEMAND REGISTRATION. If any of the Registrable
Securities registered pursuant to a Demand Registration are to be sold in one or
more firm commitment underwritten offerings, the Company may also provide
written notice to holders of its equity securities (other than Registrable
Securities), if any, who have piggyback registration rights with respect thereto
and will permit all such holders who request to be included in the Demand
Registration to include any or all equity securities held by such holders in
such Demand Registration on the same terms and conditions as the Registrable
Securities. Notwithstanding the foregoing, if the managing underwriter or
underwriters of the offering to which such Demand Registration relates advises
the holders of Registrable Securities that the total amount of Registrable
Securities and securities that such equity security holders intend to include in
such Demand Registration is in the aggregate such as to materially and adversely
affect the success of such offering, then (i) first, the amount of securities to
be offered for the account of the holders of such other equity securities will
be reduced, to zero if necessary (PRO RATA among such holders on the basis of
the amount of such other securities to be included therein by each such holder),
and (ii) second, the number of Registrable Securities included in such Demand
Registration will, if necessary, be reduced and there will be included in such
firm commitment underwritten offering only the number of Registrable Securities
that, in the opinion of such managing underwriter or underwriters, can be sold
without materially and adversely affecting the success of such offering,
allocated PRO RATA among the holders of Registrable Securities on the basis of
the number of Registrable Securities held by each such holder.
(d) POSTPONEMENT OF DEMAND REGISTRATION. The Company will be
entitled to postpone the filing period (or suspend the effectiveness) of any
Demand Registration for a reasonable period of time not in excess of 60 calendar
days, if the Board
of Directors of the Company determines, in the good faith exercise of its
reasonable business judgment, that such registration and offering would
materially interfere with BONA FIDE financing plans of the Company or would
require disclosure of information, the premature disclosure of which could
materially and adversely affect the Company; PROVIDED, HOWEVER, that the Company
may not exercise such right more than twice or for an aggregate of more than 90
calendar days during any twelve month period. If the Company postpones the
filing of a Registration Statement, it will promptly notify the holders of
Registrable Securities in writing when the events or circumstances permitting
such postponement have ended.
4. PIGGYBACK REGISTRATION. (a) RIGHT TO PIGGYBACK. If at any
time the Company proposes to file a registration statement under the Securities
Act with respect to an offering of any class of equity securities (other than a
registration statement (i) on Form S-4, S-8 or any successor form thereto or
(ii) filed solely in connection with an offering made solely to employees or
securityholders of the Company), whether or not for its own account, then the
Company will give written notice of such proposed filing to the holders of
Registrable Securities at least 20 calendar days before the anticipated filing
date. Such notice will offer such holders the opportunity to register such
amount of Registrable Securities as each such holder may request (a "PIGGYBACK
REGISTRATION"). Subject to Section 4(b) hereof, the Company will include in each
such Piggyback Registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein. The holders of
Registrable Securities will be permitted to withdraw all or part of the
Registrable Securities from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. The Company will
cause the managing underwriter or underwriters of a proposed underwritten
offering to permit holders of Registrable Securities requested to be included in
the registration for such offering to include therein all such Registrable
Securities requested to be so included on the same terms and conditions as any
similar securities, if any, of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of such offering advises
the holders of Registrable Securities to the effect that the total amount of
securities which such holders, the Company and any other persons having rights
to participate in such registration propose to include in
6
such offering is such as to materially and adversely affect the success of such
offering, then:
(i) if such registration is a primary registration on behalf
of the Company, the amount of securities to be included therein for the
account of all other holders of securities of the Company (other than
holders of Registrable Securities) will be reduced (to zero if
necessary) PRO RATA in proportion to the number of shares held by each
such person, and thereafter, if such reduction is not sufficient so as,
in the opinion of such managing underwriters or underwriters, to permit
the inclusion of Registrable Securities without adversely affecting the
success of the offering, the amount of Registrable Securities so
included in the Registration Statement for the account of the holders
of Registrable Securities will be reduced (to zero if necessary) PRO
RATA in proportion to the number of shares held by such persons to the
extent necessary to reduce the total amount of securities to be
included in such offering to the amount recommended by such managing
underwriter or underwriters; and
(ii) if such registration is an underwritten secondary
registration on behalf of holders of securities of the Company other
than Registrable Securities, the Company will include therein: (x)
first, up to the full number of securities of such persons exercising
"demand" registration rights that in the opinion of such managing
underwriter or underwriters can be sold or allocated among such holders
as they may otherwise so determine, (y) second, up to the full amount
of Registrable Securities that, in the opinion of such managing
underwriter or underwriters, can be sold (allocated pro rata among the
holders of such Registrable Securities in proportion to the number of
Registrable Securities held by such persons), and (z) third, all other
securities proposed to be sold by any other persons that in the opinion
of such managing underwriter or underwriters can be sold or allocated
among such holders as they may otherwise so determine.
(c) REGISTRATION OF SECURITIES OTHER THAN REGISTRABLE
SECURITIES. Without the written consent of the holders of a majority of the
then-outstanding Registrable Securities, the Company will not grant to any
person the right to request the Company to register any securities of the
Company under the Securities Act unless the rights so granted are subject to the
prior rights of the holders of Registrable Securities set forth
7
herein, and, if exercised, would not otherwise conflict or be inconsistent with
the provisions of, this Agreement.
5. RESTRICTIONS ON SALE BY HOLDERS OF REGISTRABLE SECURITIES.
Each holder of Registrable Securities whose Registrable Securities are covered
by a Registration Statement filed pursuant to Section 3 or Section 4 hereof,
agrees and will confirm such agreement in writing, if such holder is so
requested (pursuant to a timely written notice) by the managing underwriter or
underwriters in an underwritten offering, not to effect any public sale or
distribution of any of the Company's equity securities (except as part of such
underwritten offering), including a sale pursuant to Rule 144, during the
10-calendar day period prior to, and during such period of time, not to exceed
90 days as any managing underwriter or underwriters may reasonably request in
connection with any underwritten public offering beginning on, the closing date
of each underwritten offering made pursuant to such Registration Statement or
such other shorter period to which the executive officers of the Company may
agree.
6. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Sections 3 and 4 hereof, the Company will
effect such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders thereof in
accordance with holders' notice to the Company as to the intended method or
methods of distribution thereof (including, without limitation, distributions in
connection with transactions with broker-dealers or others for the purpose of
hedging Registrable Securities, involving possible sales, short sales, options,
pledges or other transactions which may require delivery and sale to
broker-dealers or others of Registrable Securities), and cause each such
Registration Statement to become effective and remain effective as provided
herein; PROVIDED, HOWEVER, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto (including documents that
would be incorporated or deemed to be incorporated therein by reference) the
Company will furnish to the holders of the Registrable Securities covered by
such Registration Statement, the Special Counsel and the managing underwriters,
if any, copies of all such documents proposed to be filed, which
8
documents will be subject to the review of such holders, the Special Counsel and
such underwriters. Notwithstanding Section 3(b), the Company will not file any
such Registration Statement or amendment thereto or any Prospectus or any
supplement thereto (including such documents which, upon filing, would or would
be incorporated or deemed to be incorporated by reference therein) to which the
holders of a majority of the Registrable Securities covered by such Registration
Statement, the Special Counsel or the managing underwriter, if any, shall
reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 3; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or to such Prospectus as so supplemented.
(c) Notify the selling holders of Registrable Securities, the
Special Counsel and the managing underwriters, if any, promptly, and (if
requested by any such person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if at any
time the representations and warranties of the Company contained in any
agreement contemplated by Section 6(m) hereof (including any underwriting
agreement) cease to be true and correct, (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the occurrence of any event which
9
makes any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any changes in a
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, in the case of the
Prospectus, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated or which is necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and (vii) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable securities for sale in any jurisdiction, at the
earliest possible moment.
(e) If requested by the managing underwriters, if any, or the
holders of a majority of the Registrable Securities being registered, (i)
promptly incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such holders agree should
be included therein as may be required by applicable law and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; PROVIDED, HOWEVER, that the Company will not be required to take any
actions under this Section 6(e) that are not, in the opinion of counsel for the
Company, in compliance with applicable law.
(f) Furnish to each selling holder of Registrable Securities,
the Special Counsel and each managing underwriter, if any, without charge, at
least one conformed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements (but excluding schedules, all
documents incorporated or deemed incorporated therein by reference and all
exhibits, unless requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities,
the Special Counsel and the underwriters, if any,
10
without charge, as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such persons may request; and the Company
hereby consents to the use of such Prospectus or each amendment or supplement
thereto by each of the selling holders of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
any seller or underwriter reasonably requests in writing to the extent such
registration or qualification would be required taking into account federal
securities laws; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdiction of the Registrable
Securities covered by the applicable Registration Statement; PROVIDED, HOWEVER
that the Company will not be required to (i) qualify generally to do business in
any jurisdiction in which it is not then so qualified or (ii) take any action
that would subject it to general service of process in any such jurisdiction in
which it is not then so subject.
(i) Cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates will not bear any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in such
names as the managing underwriters, if any, shall request at least two business
days prior to any sale of Registrable securities to the underwriters.
(j) Use reasonable efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States except as may be required solely as a consequence of the nature of such
selling holder's business, in which case the Company will
11
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section
6(c)(vi) or 6(c)(vii) hereof, prepare a supplement or post-effective amendment
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to Stockholder of the Registrable Securities
being sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) Use its best efforts to cause all Registrable Securities
covered by such Registration Statement to be listed on each securities exchange,
if any, on which similar securities issued by the Company are then listed or, if
no similar securities issued by the Company are then so listed, on the New York
Stock Exchange or another national securities exchange if the securities qualify
to be so listed or, if the securities do not qualify for such listing,
authorized to be quoted on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or the National Market System of NASDAQ if
the securities qualify to be so quoted; in each case, if requested by the
holders of a majority of the Registrable Securities covered by such Registration
statement or the managing underwriters, if any.
(m) In the event of an underwritten offering, enter into such
agreements (including an underwriting agreement in form, scope and substance as
is customary in underwritten offerings) and take all such other actions in
connection therewith (including those reasonably requested by the holders of a
majority of the Registrable Securities being sold or those reasonably requested
by the managing underwriters) in order to expedite or facilitate the disposition
of such Registrable Securities and in such connection, (i) make such
representations and warranties to the underwriters, if any, with respect to the
business of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm the same
if
12
and when requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the holders of
a majority of the Registrable Securities being sold) addressed to such selling
holder of Registrable Securities and each of the underwriters, if any, covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such holders and
underwriters, including without limitation the matters referred to in Section
6(m)(i) hereof; (iii) use its best efforts to obtain "comfort" letters and
updates thereof from the independent certified public accountants of the Company
(and, if necessary, any other certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for which financial
statements and financial data is, or is required to be, included in the
Registration Statement), addressed to each selling holder of Registrable
Securities and each of the underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in "comfort" letters
in connection with underwritten offerings; and (iv) deliver such documents and
certificates as may be requested by the holders of a majority of the Registrable
Securities being sold, the Special Counsel and the managing underwriters, if
any, to evidence the continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or similar agreement entered into by the Company. The foregoing
actions will be taken in connection with each closing under such underwriting or
similar agreement as and to the extent required thereunder.
(n) Make available for inspection by a representative of the
holders of Registrable Securities being sold, any underwriter participating in
any disposition of Registrable Securities, and any attorney or accountant
retained by such selling holders or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the officers, directors and employees of the Company and
its subsidiaries to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
Registration Statement; PROVIDED, HOWEVER, that any records, information or
documents that are designated by the Company in writing as confidential at the
time of delivery of such records, information or documents will be kept
confidential by such
13
persons unless (i) such records, information or documents are in the public
domain or otherwise publicly available, (ii) disclosure of such records,
information or documents is required by court or administrative order or is
necessary to respond to inquires of regulatory authorities, or (iii) disclosure
of such records, information or documents, in the opinion of counsel to such
person, is otherwise required by law (including, without limitation, pursuant to
the requirements of the Securities Act).
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 calendar days after the end of any 12-month period (or 90 calendar days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts underwritten offering,
and (ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company, after the effective date
of a Registration Statement, which statements shall cover said 12-month period.
(p) Cooperate with any reasonable request by holders of a
majority of the Registrable Securities offered for sale, including by ensuring
participation by the executive management of the Company in road shows, so long
as such participation does not materially interfere with the operation of the
Company's business.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company
may exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
Each holder of Registrable Securities will be deemed to have
agreed by virtue of its acquisition of such Registrable Securities that, upon
receipt of any notice from the Company of the occurrence of any event of the
kind described in Section 6(c)(ii), 6(c)(iii), 6(c)(v), 6(c)(vi) or 6(c)(vii)
hereof, such holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus (a "BLACK-OUT")
until such holder's receipt of the
14
copies of the supplemented or amended Prospectus contemplated by Section 6(k)
hereof, or until it is advised in writing (the "ADVICE") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus, provided, HOWEVER, that in no
event shall the aggregate number of days during which a Black-Out is effective
during any period of twelve consecutive months exceed 90 calendar days. In the
event the Company shall give any such notice, the time period prescribed in
Section 3(b) hereof will be extended by the number of days during the time
period from and including the date of the giving of such notice to and including
the date when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 6(k) hereof or (y) the Advice.
7. REGISTRATION EXPENSES. All Registration Expenses will be
borne by the Company whether or not any of the Registration Statements become
effective. "REGISTRATION EXPENSES" will mean all fees and expenses incident to
the performance of or compliance with this Agreement by the Company, including,
without limitation, (i) all registration and filing fees (including without
limitation fees and expenses (x) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (y) of compliance
with securities or "blue sky" laws (including without limitation fees and
disbursements of counsel for the underwriters or selling holders in connection
with "blue sky" qualifications of the Registrable Securities and determination
of the eligibility of the Registrable Securities for investment under the laws
of such jurisdictions as the managing underwriters, if any, or holders of a
majority of the Registrable Securities being sold may designate)), (ii) printing
expenses (including without limitation expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the holders of a majority of the Registrable Securities included in
any Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 6(m)(iii) hereof (including the expenses of any special audit and
"comfort" letters required by or incident to such performance), (vi) fees and
expenses of any "qualified independent underwriter" or other independent
15
appraiser participating in an offering pursuant to Section 3 of Schedule E to
the By-laws of the National Association of Securities Dealers, Inc., (vii)
Securities Act liability insurance if the Company so desires such insurance,
(viii) all fees and expenses in listing the Registrable Securities pursuant to
Section 6(e), and (ix) fees and expenses of all other persons retained by the
Company, PROVIDED, HOWEVER, that Registration Expenses will not include fees and
expenses of counsel for the holders of Registrable Securities and any local
counsel nor shall it include underwriting discounts and commissions relating to
the offer and sale of Registrable Securities, all of which shall be borne by the
holders of Registrable Securities included in such registration PRO RATA in
proportion to the number of Registrable Securities of such holder included in
such registration. In addition, the Company will pay its internal expenses
(including without limitation all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company.
8. INDEMNIFICATION. (a) INDEMNIFICATION BY THE COMPANY. The
Company will, without limitation as to time, indemnify and hold harmless, to the
fullest extent permitted by law, each holder of Registrable Securities
registered pursuant to this Agreement, the officers, directors and agents and
employees of each of them, each person who controls such holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, agents and employees of any such controlling
person, from and against all losses, claims, damages, liabilities, costs
(including without limitation the costs of investigation and attorneys' fees)
and expenses (collectively, "LOSSES"), as incurred, arising out of or based upon
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are based solely upon information furnished in
writing to the Company by such holder or any underwriter expressly for use
therein; PROVIDED, however, that the Company will not be liable to any holder of
Registrable Securities to
16
the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if either (A) (i) such holder failed to send or
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such holder of a Registrable Security to the person
asserting the claim from which such Losses arise and (ii) the Prospectus would
have corrected in all material respects such untrue statement or alleged untrue
statement or such omission or alleged omission; or (B) such untrue statement or
alleged untrue statement, omission or alleged omission is corrected in all
material respects in an amendment or supplement to the Prospectus previously
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, and such holder thereafter fails to deliver such
Prospectus as so amended or supplemented prior to or concurrently with the sale
of a Registrable Security to the person asserting the claim from which such
Losses arise.
The rights of any holder of Registrable Securities hereunder
will not be exclusive of the rights of any holder of Registrable Securities
under any other agreement or instrument of any holder of Registrable Securities
to which the Company is a party. Nothing in such other agreement or instrument
will be interpreted as limiting or otherwise adversely affecting a holder of
Registrable Securities hereunder and nothing in this Agreement will be
interpreted as limiting or otherwise adversely affecting the holder of
Registrable Securities' rights under any such other agreement or instrument,
PROVIDED, HOWEVER, that no Indemnified Party will be entitled hereunder to
recover more than its indemnified Losses.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities will furnish
to the Company in writing such information as the Company reasonably requests
for use in connection with any Registration Statement or Prospectus and will
severally indemnify, to the fullest extent permitted by law, the Company, its
directors and officers, agents and employees, each person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the directors, officers, agents or employees of such
controlling persons, from and against all Losses arising out of or based upon
(i) any disposition of Registrable Securities after receiving notice of a
Black-Out and prior to receiving Advice under Section 6 that use of the
17
Prospectus may be resumed or (ii) any untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary prospectus or
arising out of or based upon any omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, to
the extent, but only to the extent, that such untrue statement or omission is
finally judicially determined by a court to have been contained in any
information so furnished in writing by such holder to the Company expressly for
use in such Registration Statement or Prospectus and was relied upon by the
Company in the preparation of such Registration Statement, Prospectus or
preliminary prospectus. In no event will the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds (net of payment of all expenses and underwriter's discounts and
commissions) received by such holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any person
shall become entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such
Indemnified Party shall give prompt notice to the party from which such
indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the
commencement of any action or proceeding with respect to which such Indemnified
Party seeks indemnification or contribution pursuant hereto; PROVIDED, HOWEVER,
that the failure to so notify the Indemnifying Party will not relieve the
Indemnifying Party from any obligation or liability except to the extent that
the Indemnifying Party has been prejudiced materially by such failure. All fees
and expenses (including any fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid to
the Indemnified Party, as incurred, within five calendar days of written notice
thereof to the Indemnifying Party upon receipt of an undertaking to repay such
amount if it is ultimately determined that an Indemnified Party is not entitled
to indemnification hereunder). The Indemnifying Party will not consent to entry
of any judgment or enter into any settlement or otherwise seek to terminate any
action or proceeding in which any Indemnified Party is or could be a party and
as to which indemnification or contribution could be sought by such Indemnified
Party under this Section 8, unless such judgment, settlement or other
termination includes as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release, in form and substance
reasonably satisfactory to the Indemnified Party, from all liability in respect
of such claim or litigation for which
18
such Indemnified Party would be entitled to indemnification hereunder.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 8 is unavailable to an Indemnified Party under Section 8(a) or 8(b)
hereof in respect of any Losses or is insufficient to hold such Indemnified
Party harmless, then each applicable Indemnifying Party, in lieu of indemnifying
such Indemnified Party, will, jointly and severally, contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party or Indemnifying Parties, on the one hand, and such Indemnified Party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party or Indemnifying Parties, on the
one hand, and such Indemnified Party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by PRO
RATA allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provision of this Section 8(d), an Indemnifying
Party that is a selling holder of Registrable Securities will not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by such Indemnifying Party and distributed to
the public (net of any related expenses) exceeds the amount of any damages which
such Indemnifying Party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled
19
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity, contribution and expense reimbursement
obligations of the Company hereunder will be in addition to any liability the
Company may otherwise have hereunder, under the Series C Investment Agreement,
the Series D Investment Agreement or otherwise. The provisions of this Section 8
will survive any termination of this Agreement.
9. RULES 144 AND 144A. The Company will file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner, and will cooperate with any holder of Registrable Securities
(including without limitation by making such representations as any such holder
may reasonably request), all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitations of the exemptions provided by Rules 144
and 144A (including, without limitation, the requirements of Rule 144A(d)(4)).
Upon the request of any holder of Registrable Securities, the Company will
deliver to such holder a written statement as to whether it has complied with
such filing requirements.
10. UNDERWRITTEN REGISTRATIONS. If any of the Registrable
Securities covered by any Demand Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the holder of Registrable
Securities that gave the Demand Notice with respect to such offering; PROVIDED
that such investment banker or manager shall be reasonably satisfactory to the
Company. If any Piggyback Registration is an underwritten offering, the Company
will have the right to select the investment banker or investment bankers and
managers to administer the offering.
11. MISCELLANEOUS. (a) REMEDIES. In the event of a breach by
the Company of its obligations under this Agreement, each holder of Registrable
Securities, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it will
waive the defense that a remedy at law would be adequate.
20
(b) NO INCONSISTENT AGREEMENTS. The Company has not, as of the
date hereof, and will not, on or after the date hereof, enter into any agreement
with respect to its securities which conflicts with the rights granted to the
holders of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof. This Agreement will be deemed to be an independent
agreement and no limitation or restriction contained in this Agreement will be
deemed to conflict with, limit or restrict the rights of the Stockholder under
this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of holders
of a majority of the then-outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Registrable Securities may be given by holders of at
least 51% of the Registrable Securities being sold by such holders; PROVIDED,
HOWEVER, that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(d) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing and will be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by fax, or
(iii) one business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows:
(x) if to the Company, at 900 Victors Way, Suite 350, Ann
Arbor, Michigan 48108, Attention: Chief Financial Officer; Fax No.:
(734) 996-0200, or at such other address, notice of which is given to
the holders of Registrable Securities in accordance with the provisions
of this Section 11(d);
(y) if to the Stockholder, at 4200 Texas Commerce Tower West,
2200 Ross Avenue, Dallas, Texas 75201, Attention: William T. Cavanaugh;
Fax No.: (214) 220-4949, or at such other address, notice of which is
given in accordance with the provisions of Section 11(d); and
21
(z) if to any other holder of Registrable Securities, at the
most current address given by such holder to the Company in accordance
with the provisions of this Section 11(d).
(e) OWNER OF REGISTRABLE SECURITIES. The Company will
maintain, or will cause its registrar and transfer agent to maintain, a stock
book with respect to the Series C Preferred, the Series D Preferred and the
Common Stock, in which all transfers of Registrable Securities of which the
Company has received notice will be recorded. The Company may deem and treat the
person in whose name Registrable Securities are registered in the stock book of
the Company as the owner thereof for all purposes, including without limitation
the giving of notices under this Agreement.
(f) SUCCESSORS AND ASSIGNS. This Agreement will inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and will inure to the benefit of each holder of any Registrable
Securities. The Company may not assign its rights or obligations hereunder
without the prior written consent of each holder of any Registrable Securities.
The holders of the Registrable Securities may assign the rights and obligations
under this Agreement to any subsequent holder of such Registrable Securities.
Notwithstanding the foregoing, no transferee will have any of the rights granted
under this Agreement (i) until such transferee shall have acknowledged its
rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations or (ii) if the transferor
notifies the Company in writing on or prior to such transfer that the transferee
shall not have such rights.
(g) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the meaning
hereof.
(i) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
22
(j) JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(A) Each party hereby irrevocably and unconditionally submits,
for itself and its property, to the exclusive jurisdiction of any state
or federal court located in the State of Delaware (as applicable, a
"DELAWARE COURT"), and any appellate court from any such court, in any
suit, action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment resulting
from any such suit, action or proceeding, and each party hereby
irrevocably and unconditionally agrees that all claims in respect of
any such suit, action or proceeding may be heard and determined in the
Delaware Court.
(B) It will be a condition precedent to each party's right to
bring any such suit, action or proceeding that such suit, action or
proceeding, in the first instance, be brought in the Delaware Court
(unless such suit, action or proceeding is brought solely to obtain
discovery or to enforce a judgment), and if each such court refuses to
accept jurisdiction with respect thereto, such suit, action or
proceeding may be brought in any other court with jurisdiction;
PROVIDED that the foregoing will not apply to any suit, action or
proceeding by a party seeking indemnification or contribution pursuant
to this Agreement or otherwise in respect of a suit, action or
proceeding against such party by a thirty party if such suit, action or
proceeding by such party seeking indemnification or contribution is
brought in the same court as the suit, action or proceeding against
such party.
(C) No party may move to (i) transfer any such suit, action or
proceeding from the Delaware Court to another jurisdiction, (ii)
consolidate any such suit, action or proceeding brought in the Delaware
Court with a suit, action or proceeding in another jurisdiction, or
(iii) dismiss any such suit, action or proceeding brought in the
Delaware Court for the purpose of bringing the same in another
jurisdiction.
(D) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, (i) any
objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement in the Delaware Court, (ii) the defense of an inconvenient
forum to the maintenance of such suit, action or proceeding
23
in any such court, and (iii) the right to object, with respect to such
suit, action or proceeding, that such court does not have jurisdiction
over such party. Each party irrevocably consents to service of process
in any manner permitted by law. Notwithstanding the foregoing, this
Section 11(j) will not apply to any suit, action or proceeding to
enforce a judgment of a Delaware Court.
(k) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein will remain in full force and effect
and will in no way be affected, impaired or invalidated, and the parties hereto
will use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(l) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings among the parties with respect to such
registration rights.
(M) ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the court,
will be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
[SIGNATURE PAGE FOLLOWS]
24
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
EXPLORER HOLDINGS, L.P.
By: Explorer Holdings GenPar, LLC,
its General Partner
By:
--------------------------------------
William T. Cavanaugh, Jr.
Vice President
OMEGA HEALTHCARE INVESTORS, INC.
By:
--------------------------------------
C. Taylor Pickett
Chief Executive Officer
EX-99.(F)
8
a2062165zex-99_f.txt
EXHIBIT 99(F)
EXHIBIT 99.F
OMEGA HEALTHCARE INVESTORS, INC.
900 VICTORS WAY, SUITE 350
ANN ARBOR, MICHIGAN 48108
October 29, 2001
EquiServ Trust Company, N.A.
525 Washington Blvd., 3rd Floor
Suite 4660
Jersey City, New Jersey 07310
Attention: Corporate Actions Administrator
Re: AMENDMENT NO. 2 TO RIGHTS AGREEMENT
-----------------------------------
Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement, dated as of May 12,
1999, as amended on May 11, 2000 (the "RIGHTS AGREEMENT"), between Omega
Healthcare Investors, Inc. (the "COMPANY") and EquiServ Trust Company, N.A. (as
successor to First Chicago Trust Company), as rights agent, the Company, by
resolution adopted by its Board of Directors, hereby amends the Rights Agreement
as follows:
1. Section 1 of the Rights Agreement is hereby amended by deleting the
definition of "Acquiring Person" and replacing it in its entirety with the
following:
"`Acquiring Person' shall mean any Person (as hereinafter
defined) (other than the Company, any Related Person (as
hereinafter defined), or any Authorized Person (as hereinafter
defined)) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such
Person, is the Beneficial Owner (as hereinafter defined) of
10% or more of the Common Stock of the Company then
outstanding; PROVIDED, HOWEVER, that a Person will not be
deemed to have become an Acquiring Person solely as a result
of (i) a reduction in the number of shares of Common Stock
outstanding, or (ii) the acquisition by
EquiServ Trust Company, N.A.
October 29, 2001
Page 2
such Person of newly issued Common Stock directly from the
Company (it being understood that a purchase from an
underwriter or other intermediary is not directly from the
Company) (a "Direct Purchase"), unless and until such time as
(x) such Person or any Affiliate or Associate of such Person
thereafter becomes the Beneficial Owner of any additional
shares of Common Stock, other than as a result of a Direct
Purchase or a stock dividend, stock split or similar
transaction effected by the Company in which all holders of
Common Stock are treated equally, or (y) any other Person who
is the Beneficial Owner of Common Stock thereafter becomes an
Affiliate or Associate of such Person. Notwithstanding the
foregoing, if the Board of Directors determines in good faith
that a Person who would otherwise be an "Acquiring Person" as
defined pursuant to the foregoing provisions of this
paragraph, has become such inadvertently, and such Person
divests as promptly as practicable (and in any event within
ten (10) Business Days after notification by the Company or
such later period as may be determined by the Board of
Directors prior to the expiration of such ten-day period) a
sufficient number of shares of Common Stock so that such
Person would no longer be an "Acquiring Person" as defined
pursuant to the foregoing provisions of this paragraph, then
such Person shall not be deemed to be an "Acquiring Person"
for any purposes of this Agreement."
2. Section 1 of the Rights Agreement is hereby amended by deleting the
definition of "Distribution Date" and replacing it in its entirety with the
following:
"`Distribution Date' shall mean the earlier of (i) the Close
of Business on the tenth calendar day following the Stock
Acquisition Date, or (ii) the Close of Business on the
fifteenth Business Day (or such later date as may be
determined by an action of the Board of Directors prior to
such time as any Person becomes an Acquiring Person) after the
date of the commencement by any Person of, or of the first
public announcement of, the intention of any Person to
commence a tender or exchange offer the consummation of which
would result in any Person becoming an Acquiring Person."
EquiServ Trust Company, N.A.
October 29, 2001
Page 3
3. Section 1 of the Rights Agreement is hereby amended by adding the
following new definitions:
"`Authorized Person' shall mean each of Purchaser, its
Affiliates and Associates, and any of their respective
successors or assignees (each, a "Purchaser Person") and
(ii) any Person, its Affiliates and Associates and any of
their respective successors or assigns, who Beneficially
Owns Common Stock that had previously been Beneficially
Owned by a Purchaser (other than Common Stock Beneficially
Owned by such Person as a result of the direct or indirect
transfer of Common Stock through an underwriter or pursuant
to the facilities of a national securities exchange);
provided that the ultimate parent entity of such person is
a party to the Amended and Restated Stockholders Agreement,
dated the date of closing of the Rights Offering, between
Purchaser and the Company."
"`Purchaser' shall mean Explorer Holdings, L.P., a Delaware
limited partnership."
"`Related Person' shall mean (i) any Subsidiary of the Company
or (ii) any employee benefit plan or stock ownership plan of
the Company or of any Subsidiary of the Company or any entity
holding Common Stock for or pursuant to the terms of any such
plan."
"`Rights Offering' shall have the meaning set forth in the
Series D Investment Agreement."
"`Series D Investment Agreement' shall mean the Investment
Agreement, dated as of October 29, 2001, between the Company
and Purchaser."
4. Section 1 of the Rights Agreement is hereby amended by deleting the
definitions of "Stockholders Agreement" and "Investment Agreement."
5. Section 1 of the Rights Agreement is hereby amended by deleting the
last sentence of Section 1 and replacing it in its entirety with the following:
"Notwithstanding any other provision hereof, in no event will
Purchaser, or its Affiliates or Associates, be deemed to be an
"Acquiring Person" for purposes hereof, nor shall a
Distribution Date, a Stock Acquisition Date, a Triggering
Event or any other event hereunder be deemed to have occurred,
and the Rights will not become separable, distributable,
unredeemable or exercisable, in each such case, as a result of
the approval, execution or delivery of the Series D Investment
Agreement or the other Transaction Documents (as defined in
the Series D Investment Agreement) or the consummation of the
transactions contemplated thereby, including but not limited
to, the Rights Offering."
EquiServ Trust Company, N.A.
October 29, 2001
Page 4
6. Section 3(a) of the Rights Agreement is hereby amended by deleting
it in its entirety and replacing it with the following:
"(a) Until the Distribution Date, (i) the Rights will be
evidenced (subject to the provisions of Section 3(b) hereof)
by certificates for Common Stock registered in the names of
the holders thereof (which certificates shall also be deemed
certificates for Rights) and not by separate certificates, and
(ii) the Rights will be transferable only in connection with
the transfer of the underlying Common Stock (including a
transfer to the Company). As soon as practicable after the
Distribution Date, the Company will prepare and execute, the
Rights Agent will countersign, and the Company will send or
cause to be sent (and the Rights Agent will, if requested,
send) by first-class, insured, postage-prepaid mail, to each
record holder of Common Stock as of the Close of Business on
the Distribution Date, at the address of such holder shown on
the records of the Company, a Right Certificate, in
substantially the form of Exhibit B hereto (a "Right
Certificate"), evidencing one Right for each share of Common
Stock so held. As of the Distribution Date, the Rights will be
evidenced solely by Right Certificates."
7. The Rights Agreement shall not otherwise be supplemented or amended
by virtue of this Amendment No. 2 to the Rights Agreement, but shall remain in
full force and effect.
8. Capitalized terms used without other definition in this Amendment
No. 2 to the Rights Agreement shall be used as defined in the Rights Agreement.
9. This Amendment No. 2 to the Rights Agreement shall be deemed to be a
contract made under the laws of the State of Maryland and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State,
except that those provisions of this Amendment No. 2 to the Rights Agreement
affecting the rights, duties and responsibility of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of Illinois.
10. This Amendment No. 2 to the Rights Agreement may be executed in
any number of counterparts and each of such
EquiServ Trust Company, N.A.
October 29, 2001
Page 5
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
11. This Amendment No. 2 to the Rights Agreement shall be effective as
of, and immediately prior to, the execution and delivery of the Series D
Investment Agreement, and all references to the Rights Agreement shall, from and
after such time, be deemed to be references to the Rights Agreement as amended
hereby.
12. Exhibits A and B to the Rights Agreement shall be deemed amended
in a manner consistent with this Amendment No. 2 to the Rights Agreement.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
EquiServ Trust Company, N.A.
October 29, 2001
Page 6
Very truly yours,
OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ C. Taylor Pickett
---------------------------
C. Taylor Pickett
Chief Executive Officer
Accepted and agreed to as of the
effective time specified above:
EQUISERV TRUST COMPANY, N.A.
(AS SUCCESSOR TO FIRST CHICAGO TRUST COMPANY)
By:
------------------------------------
Name:
Title: