-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VGB1SkTq2V7okJUYQaHLhpvU2Uum0MPelWAtAmJCuxf+MdumvBDxHZZlTP0inEwR ZsIfTS8QEjg4WkZvqgOKDw== 0001012975-97-000020.txt : 19970124 0001012975-97-000020.hdr.sgml : 19970124 ACCESSION NUMBER: 0001012975-97-000020 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970123 SROS: NASD GROUP MEMBERS: HYPERION FUNDING II CORP. GROUP MEMBERS: HYPERION PARTNERS II LP GROUP MEMBERS: HYPERION VENTURES II L.P. GROUP MEMBERS: LEWIS S. RANIERI GROUP MEMBERS: SCOTT A. SHAY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TRANSWORLD HOME HEALTHCARE INC CENTRAL INDEX KEY: 0000890634 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HOME HEALTH CARE SERVICES [8082] IRS NUMBER: 133098275 STATE OF INCORPORATION: NY FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-45967 FILM NUMBER: 97509611 BUSINESS ADDRESS: STREET 1: 11 SKYLINE DRIVE CITY: HAWTHORNE STATE: NY ZIP: 10532 BUSINESS PHONE: 9143458880 MAIL ADDRESS: STREET 1: 11 SKYLINE DRIVE CITY: HAWTHORNE STATE: NY ZIP: 10532 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HYPERION PARTNERS II LP CENTRAL INDEX KEY: 0000947804 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 113268360 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 50 CHARLES LINDBERGH BOULEVARD SUITE 500 CITY: UNIONDALE STATE: NY ZIP: 11553-3600 BUSINESS PHONE: 516-745-6644 MAIL ADDRESS: STREET 1: 50 CHARLES LINDBERGH BLVD STREET 2: SUITE 500 CITY: UNIONDALE STATE: NY ZIP: 11553-3600 SC 13D/A 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Schedule 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)* Transworld Home HealthCare, Inc. (Name of Issuer) Common Stock, $.01 par value per share (Title of Class of Securities) 894081 10 8 (CUSIP Number) Scott A. Shay, Hyperion Partners II L.P., 50 Charles Lindbergh Blvd., Suite 500, Uniondale, NY 11553 (516) 745-6644 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 13, 1997 (Date of Event which Requires Filing of this Statement) If the filing 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. [ ] Check the following box if a fee is being paid with the statement. [ ] (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosure provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that Section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Hyperion Partners II L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /x/ 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC, 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 7 SOLE VOTING POWER NUMBER OF -0- SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -4,400,000- (1)(2) EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON -0- WITH 10 SHARED DISPOSITIVE POWER -4,400,000- (1)(2) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -4,400,000- (2) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /x/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.3% (2) 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! (1) Power is exercised through its sole general partner, Hyperion Ventures II L.P. (2) Excludes 3,000,000 shares issuable upon exercise of Warrants and 898,877 shares subject to purchase under a Stock Purchase Agreement. 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Hyperion Ventures II L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /x/ 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 7 SOLE VOTING POWER NUMBER OF -0- SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -4,400,000- (1)(2) EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON -0- WITH 10 SHARED DISPOSITIVE POWER -4,400,000- (1)(2) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -4,400,000- (1)(2) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /x/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.3% (2) 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! (1) Solely in its capacity as the general partner of Hyperion Partners II L.P. (2) Excludes 3,000,000 shares issuable upon exercise of Warrants and 898,877 shares subject to purchase under a Stock Purchase Agreement. 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Hyperion Funding II Corp. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /x/ 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 7 SOLE VOTING POWER NUMBER OF -0- SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -4,400,000- (1)(2) EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON -0- WITH 10 SHARED DISPOSITIVE POWER -4,400,000- (1)(2) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -4,400,000- (1)(2) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /x/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.3% (2) 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! (1) Solely in its capacity as the sole general partner of Hyperion Ventures II L.P., which is the sole general partner of Hyperion Partners II L.P. (2) Excludes 3,000,000 shares issuable upon exercise of Warrants and 898,877 shares subject to purchase under a Stock Purchase Agreement. 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Lewis S. Ranieri 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /x/ 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 United States of America 7 SOLE VOTING POWER NUMBER OF -0- SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -4,400,000- (1)(2) EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON -0- WITH 10 SHARED DISPOSITIVE POWER -4,400,000- (1)(2) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -4,400,000- (1)(2) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /x/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.3% (2) 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! (1) Solely in his capacity as Chairman and President, director and shareholder of Hyperion Funding II Corp., which is the sole general partner of Hyperion Ventures II L.P., which is the sole general partner of Hyperion Partners II L.P. (2) Excludes 3,000,000 shares issuable upon exercise of Warrants and 898,877 shares subject to purchase under a Stock Purchase Agreement. 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Scott A. Shay 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /x/ 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 United States of America 7 SOLE VOTING POWER NUMBER OF -0- SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -4,400,000- (1)(2) EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON -0- WITH 10 SHARED DISPOSITIVE POWER -4,400,000- (1)(2) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -4,400,000- (1)(2) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /x/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.3% (2) 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! (1) Solely in his capacity as Executive Vice President and Assistant Secretary, director and shareholder of Hyperion Funding II Corp., which is the sole general partner of Hyperion Ventures II L.P., which is the sole general partner of Hyperion Partners II L.P. (2) Excludes 3,000,000 shares issuable upon exercise of Warrants and 898,877 shares subject to purchase under a Stock Purchase Agreement. The Statement on Schedule 13D, dated June 6, 1996, filed by the undersigned with the Securities and Exchange Commission on June 7, 1996, relating to the Common Stock, par value $0.01 per share, of Transworld Home HealthCare, Inc., as amended by Amendment No. 1 thereto, dated August 1, 1996 (the "Schedule 13D"), is hereby further amended by adding thereto the information set forth below. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Schedule 13D, unless the context otherwise requires. Item 2. Identity and Background. Item 2 is hereby supplemented by addition of the following: Pursuant to a Stock Purchase Agreement, dated as of January 8, 1997, by and between Transworld and the Fund, as supplemented by a letter agreement dated January 13, 1997 (the "Stock Purchase Agreement"), the Fund agreed, upon satisfaction of the conditions set forth therein, to purchase from Transworld an additional 898,877 shares of Common Stock (the "January 1997 Shares") at a price of $11.125 per share, for an aggregate purchase price of $10,000,000. Item 3. Source and Amount of Funds and Other Consideration. Item 3 is hereby supplemented by addition of the following: The funds for the purchase of the January 1997 Shares are expected to be obtained from capital contributed to the Fund by its partners. Item 4. Purpose of Transactions. The January 1997 Shares are being acquired by the Fund for the purpose of investment. The January 1997 Shares, and any other shares of Common Stock now owned or hereafter acquired by the Fund or the other Reporting Persons may be disposed of at any time or from time to time, in whole or in part. In addition, the Reporting Persons and their affiliates may in the future acquire additional shares of Common Stock. Item 5. Interest in Securities of the Issuer. Item 5(a) is hereby supplemented by addition of the following: (a) The Fund owns 4,400,000 shares of Common Stock, constituting approximately 44.3% of the outstanding Common Stock (on the basis of 9,931,752 shares outstanding as of September 9, 1996). In addition, the Fund owns 3,000,000 Warrants and, pursuant to the Stock Purchase Agreement, the Fund has agreed, upon satisfaction of the conditions set forth therein, to purchase an additional 898,877 shares of Common Stock. As a result of its right to acquire Common Stock upon exercise of the Warrants and pursuant to the Stock Purchase Agreement, the Fund may be deemed under Rule 13d-3(d)(1)(i)(A) under the Act, to own beneficially 8,298,877 shares of Common Stock, constituting approximately 60.0% of the outstanding Common Stock (on the basis of 9,931,752 shares outstanding as of September 9, 1996). Item 7. Material to be Filed as Exhibits. Item 7 is hereby supplemented by addition of the following: 9. Exhibit IX - Stock Purchase Agreement dated as of January 8, 1997, filed herewith 10. Exhibit X - Letter Agreement dated as of January 13, 1997, filed herewith Signature After reasonable inquiry and to the best of each of the undersigned's knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: January 23, 1997 HYPERION PARTNERS II L.P. By: Hyperion Ventures II L.P., its general partner By: Hyperion Funding II Corp., its general partner By: /s/Scott A. Shay Name: Scott A. Shay Title: Executive Vice President HYPERION VENTURES II L.P. By: Hyperion Funding II Corp., its general partner By: /s/Scott A. Shay Name: Scott A. Shay Title: Executive Vice President HYPERION FUNDING II CORP. By: /s/Scott A. Shay Name: Scott A. Shay Title: Executive Vice President /s/Scott A. Shay Scott A. Shay, as Attorney-in-Fact for Lewis S. Ranieri /s/Scott A. Shay Scott A. Shay EX-99 2 STOCK PURCHASE AGREEMENT This Stock Purchase Agreement (this "Agreement") is made as of this 8th day of January, 1997 by and between Transworld Home HealthCare, Inc., a New York corporation (the "Company"), and Hyperion Partners II L.P., a Delaware limited partnership ("HPII" or the "Investor"). THE PARTIES HEREBY AGREE AS FOLLOWS: 1. Purchase and Sale of Shares. 1.1 Sale and Issuance of Shares. Subject to the terms and conditions of this Agreement, at the Closing (as hereinafter defined), the Investor agrees to purchase and the Company agrees to sell and issue to the Investor 898,877 shares (the "Shares") of common stock, par value $.01 per share, of the Company (the "Common Stock") at a price of $11.125 per Share, for an aggregate purchase price of $10,000,000. 1.2 Closing. The purchase and sale of the Shares shall take place at the offices of Proskauer Rose Goetz & Mendelsohn LLP, 1585 Broadway, New York, New York 10036, within 15 days following the satisfaction of the conditions set forth in Sections 4 and 5, or at such other time and place as the Company and the Investor mutually agree upon orally or in writing (which time and place are designated as the "Closing"). At the Closing, in addition to satisfying the other conditions set forth herein, the Company shall deliver to the Investor one or more certificates representing the Shares, against delivery to the Company by the Investor of a wire transfer in the amount of $10,000,000. 2. Representations and Warranties of the Company. The Company hereby represents and warrants to, and agrees with, the Investor that: 2.1 Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of New York. The Company has all requisite power and authority to own, lease, license and use its properties and assets and to carry on its business as now conducted and as proposed to be conducted. The Company has all requisite power and authority to enter into and perform this Agreement and the transactions contemplated hereby. 2.2 Authorization. All corporate action on the part of the Company and its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Company hereunder and the authorization, sale, issuance and delivery of the Shares has been taken. This Agreement constitutes the valid and legally binding obligation of the Company, enforceable in accordance with its terms, except (i) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as enforceability may be limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. 2.3 Valid Issuance of Shares. (a) The Shares, when issued, sold and delivered in accordance with the terms hereof and for the consideration expressed herein, (i) will be duly and validly issued and fully paid and nonassessable, (ii) will be free of any pledges, liens, security interests, claims or other encumbrances of any kind, (iii) will be issued in compliance with all applicable federal and state securities laws, and (iv) will not be issued in violation of any preemptive rights of shareholders. The Shares have been duly and validly reserved for issuance. (b) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable, and were issued in compliance with all applicable federal and state securities laws. 2.4 Governmental Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company or any of its subsidiaries is required in connection with the consummation of the transactions contemplated by this Agreement except for (i) filings with respect to compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (ii) filing with the Securities and Exchange Commission on Form 10-C; and (iii) such filings as have been made. 2.5 Compliance with Other Instruments. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not result in a violation of, or be in conflict with, or constitute, with or without the passage of time or the giving of notice or both, a default under, any provision of the Company's certificate of incorporation, as amended, or bylaws, as amended, or any judgment, order, writ or decree, or any contract, agreement or instrument, or require any consent, waiver or approval thereunder, or give rise to a right to terminate or accelerate the performance required thereby, or constitute an event which results in the creation of any lien, charge or encumbrance upon any asset of the Company. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, will not constitute a "change of control" under any agreement or contract or give rise to any right to receive severance or similar payments. 2.6 Registration Rights Agreement. The Shares are "Registrable Securities" as that term is used in the Registration Rights Agreement dated as of May 29, 1996 between the Company and the Investor (the "Registration Rights Agreement"), and are entitled to all of the benefits of the Registration Rights Agreement. 3. Representations and Warranties of the Investor. The Investor hereby represents and warrants to the Company that: 3.1 Authorization. The Investor has all requisite power and authority to enter into this Agreement. This Agreement has been duly executed and delivered and constitutes the Investor's valid and legally binding obligation, enforceable in accordance with its terms, except (i) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally and (ii) as enforceability may be limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. 3.2 Purchase Entirely for Own Account. The Shares to be purchased by the Investor will be acquired for investment for its own account, and, except as contemplated by the Registration Rights Agreement or otherwise in accordance with applicable securities laws, not with a view to the resale or distribution of any part thereof and without the present intention of selling, granting any participation in, or otherwise distributing the same. 3.3 Investment Experience. The Investor can bear the economic risk of its investment and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Shares. 3.4 Restricted Securities. The Investor understands that the Shares it is purchasing are characterized as "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Act, only in certain limited circumstances. In this connection, the Investor represents that it is familiar with Rule 144 of the Securities and Exchange Commission, as presently in effect, and understands the resale limitations imposed thereby and by the Act. 3.5 Legends. The Investor understands that the certificates evidencing the Shares will bear the following legend: "THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER." The Shares shall not be required to bear such legend if an opinion of counsel reasonably satisfactory to the Company is delivered to the Company to the effect that neither the legend nor the restrictions on transfer contained in this Agreement are required to insure compliance with the Act. Whenever, pursuant to the preceding sentence, any certificate for any of the Shares is no longer required to bear the foregoing legend, the Company may, and if requested by the holder thereof, shall, issue to the holder, at the Company's expense, a new certificate not bearing the foregoing legend. 4. Conditions to the Investor's Obligations at Closing. The obligations of the Investor under this Agreement are subject to the fulfillment on or before the Closing of each of the following conditions: 4.1 Representations and Warranties. The representations and warranties of the Company contained in Section 2 shall be true in all material respects on and as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing. 4.2 Performance. The Company shall have performed and complied with all agreements, covenants, obligations and conditions contained in this Agreement in all material respects that are required to be performed or complied with by it on or before the Closing. 4.3 No Material Adverse Change. There shall have been no material adverse change in the business, affairs, prospects, operations, properties, assets or condition (financial or otherwise) of the Company and its subsidiaries taken as a whole. 4.4 Compliance Certificate. The President or Chief Executive Officer of the Company shall deliver to the Investor at the Closing a certificate certifying that the conditions specified in Sections 4.1, 4.2, 4.3, 4.5, 4.6 and 4.11 have been fulfilled. 4.5 Qualifications; Litigation. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be duly obtained and effective as of the Closing. There shall not have been instituted or threatened any legal proceeding relating to, or seeking to prohibit or otherwise challenge, this Agreement or the consummation of the transactions contemplated by this Agreement, or seeking to obtain substantial damages with respect thereto. 4.6 Consents and Coordination. All consents and waivers that are required in connection with the Closing under this Agreement, and the consummation of the transactions contemplated hereby, shall be duly obtained and effective as of the Closing. 4.7 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be satisfactory in form and substance to the Investor, and the Investor shall have received all such counterpart original and certified or other copies of such documents as it may reasonably request. 4.8 Opinion of Company Counsel. Baer, Marks & Upham LLP, counsel for the Company, shall have delivered an opinion which is addressed to the Investor, dated as of the Closing and substantially in the form delivered pursuant to the Unit Purchase Agreement dated as of November 20, 1995 between the Company and the Investor (the "Unit Purchase Agreement"). 4.9 Banks Waiver and Consent. The Company shall have received, in form and substance satisfactory to the Investor, (i) the waiver of the lenders (the "Banks") party to the Credit Agreement dated as of July 31, 1996, as amended (the "Credit Agreement") among the Company, the Banks and Bankers Trust Company, as Agent, of any right the Banks may have to the proceeds of the transactions contemplated hereby to prepay outstanding indebtedness of the Company under the Credit Agreement, (ii) the consent of the Banks to the issuance and sale of the Shares and waiver of any events of default caused in connection therewith, (iii) the consent of the Banks to the Stock Purchase Agreement (the "Stock Purchase Agreement") dated as of November 13, 1996, as amended, between the Company and Health Management, Inc. ("HMI") and the consummation of the transactions contemplated thereby, (iv) the consent of the Banks to the Agreement and Plan of Merger (the "Merger Agreement") among the Company, IMH Acquisition Corp. and HMI dated as of November 13, 1996, and the consummation of the merger (the "Merger") and other transactions contemplated thereby and (v) such other consents and waivers of the Banks as may be required in connection with the transactions hereunder and under the Stock Purchase Agreement and Merger Agreement. 4.10 Hart-Scott-Rodino. All applicable waiting periods in respect of the transactions contemplated by this Agreement under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired at or prior to the Closing. 4.11 Investment in and Merger with Health Management, Inc. The transactions contemplated by the Stock Purchase Agreement and the Merger Agreement (including, without limitation, the Merger) shall have been consummated. 5. Conditions to the Company's Obligations at the Closings. The obligations of the Company to the Investor under Section 1 of this Agreement are subject to the fulfillment on or before the Closing of the following conditions, any of which may be waived by the Company: 5.1 Representations and Warranties. The representations and warranties of the Investor contained in Section 3 shall be true in all material respects on and as of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing. 5.2 Payment of Purchase Price. The Investor shall have delivered the purchase price specified in Section 1.2. 5.3 Performance. The Investor shall have performed and complied with all agreements, covenants, obligations and conditions contained in this Agreement in all material respects that are required to be performed or complied with by it on or before the Closing. 5.4 Qualifications; Litigation. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be duly obtained and effective as of the Closing. There shall not have been instituted or threatened any legal proceeding relating to, or seeking to prohibit or otherwise challenge, this Agreement or the consummation of the transactions contemplated by this Agreement, or seeking to obtain substantial damages with respect thereto. 5.5 Banks Waiver and Consent. The Company shall have received, in form and substance satisfactory to the Company, (i) the waiver of the Banks of any right they may have to the proceeds of the transactions contemplated hereby to prepay outstanding indebtedness of the Company under the Credit Agreement, (ii) the consent of the Banks to the issuance and sale of the Shares and waiver of any events of default caused in connection therewith, (iii) the consent of the Banks to the Stock Purchase Agreement and the consummation of the transactions contemplated thereby, (iv) the consent of the Banks to the Merger Agreement and the consummation of the Merger and other transactions contemplated thereby and (v) such other consents and waivers of the Banks as may be required in connection with the transactions hereunder and under the Stock Purchase Agreement and Merger Agreement. 5.6 Hart-Scott-Rodino. All applicable waiting periods in respect of the transactions contemplated by this Agreement under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired at or prior to the Closing. 5.7 Consents and Coordination. All consents and waivers that are required in connection with the Closing under this Agreement, and the consummation of the transactions contemplated hereby, shall be duly obtained and effective as of the Closing. 5.8 Investment in and Merger with Health Management, Inc. The transactions contemplated by the Stock Purchase Agreement and the Merger Agreement (including, without limitation, the Merger) shall have been consummated. 6. Covenants of the Company. The Company covenants and agrees with the Investor as follows: 6.1 Advice of Changes. The Company will promptly advise the Investor in writing of (i) any event occurring subsequent to the date of this Agreement which would render any representation or warranty of the Company contained in this Agreement, if made on or as of the date of such event or the date of the Closing, untrue or inaccurate in any material respect and (ii) any material adverse change in the business of the Company and its subsidiaries taken as a whole. 6.2 Information. The Company covenants and agrees that the Company shall deliver to the Investor the information specified in Section 6.9 of the Unit Purchase Agreement, unless the Investor at any time specifically requests that such information not be delivered to it. 6.3 Observer and Director Rights. The Company covenants and agrees that it will afford to the Investor the observer, director and other rights specified in Sections 6.11 and 8.1(a) of the Unit Purchase Agreement. 6.4 Listing Application. The Company shall prepare and file with the NASD an Additional Listing Application, in the form and within the time period prescribed by the NASD, with respect to the listing of the Shares. 7. Indemnification. The Company agrees to indemnify the Investor and its general partner, and each officer, director, employee, partner, agent and affiliate of the Investor and its general partner (the "Indemnified Parties") for, and hold each Indemnified Party harmless from and against: (i) any and all damages, losses, claims and other liabilities of any and every kind, including, without limitation, judgments and costs of settlement, and (ii) any and all out-of-pocket costs and expenses of any and every kind, including, without limitation, reasonable fees and disbursements of one counsel for such Indemnified Parties (selected by the Investor) (all of which expenses periodically shall be reimbursed as incurred), in each case, arising out of or suffered or incurred in connection with (A) any investigative, administrative or judicial proceeding or claim brought or threatened relating to or arising out of the Investor's purchase of the Shares, or this Agreement, the Registration Rights Agreement, the Stock Purchase Agreement, the Merger Agreement or the transactions contemplated hereby and thereby, or (B) any material inaccuracy or alleged inaccuracy in any representation or warranty of the Company made or incorporated by reference in this Agreement or any material breach or alleged breach by the Company of any covenant or agreement made or incorporated by reference in this Agreement or the Registration Rights Agreement. 8. Termination. 8.1 Termination Prior to Closing. This Agreement may be terminated at any time prior to the Closing: (a) by the mutual consent of the Investor and the Company; (b) by the giving of notice by the Investor or the Company at any time after June 30, 1997 (or such later date as shall have been agreed to in writing by the parties hereto), if at the time notice of such termination is given the Closing shall not have been consummated; (c) by the giving of notice by the Investor or the Company at any time after the Stock Purchase Agreement or the Merger Agreement is terminated; or (d) by the Investor, if there has been a material misrepresentation or material breach on the part of the Company in any of the representations, warranties, covenants or agreements of the Company set forth herein, or if there has been any material failure on the part of the Company to comply with its obligations hereunder, or by the Company if there has been a material misrepresentation or material breach on the part of the Investor in any of the representations, warranties, covenants or agreements of the Investor set forth herein, or if there has been any material failure on the part of the Investor to comply with its obligations hereunder. 8.2 Liability Upon Termination. (a) In the event of termination of this Agreement pursuant to Sections 8.1(a), 8.1(b) or 8.1(c), no party hereto shall have any liability or further obligation to any other party hereto except as provided in Sections 7, 9.7 and 9.8. (b) In the event of termination pursuant to Section 8.1(d), (i) if the Investor is the non-breaching party, the Investor shall be entitled to reimbursement of expenses as set in Section 9.8 and (ii) the non-breaching party shall have the right to pursue all rights and remedies available to it hereunder or otherwise provided at law or equity, including without limitation, the right to seek specific performance and money damages. 9. Miscellaneous. 9.1 Survival of Warranties. The warranties, representations, covenants and agreements of the Company and the Investor contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing. Neither any investigation by or on behalf of the Investor nor the receipt by the Investor of any data or information from the Company, shall in any way affect the right of the Investor to rely on the representations, warranties, covenants and agreements of the Company or the right of the Investor to terminate this Agreement as provided in Section 8. 9.2 Successors and Assigns. The Investor and each assignee of the Investor may, without the consent of the Company, assign its rights under this Agreement, in whole or in part, in connection with any sale or transfer to an affiliate or a partner, and the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 9.3 Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York as applied to agreements among New York residents entered into and to be performed entirely within New York. 9.4 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 9.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 9.6 Notices. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given upon receipt by the party to be notified or five days after deposit with the United States Post Office, by registered or certified mail, postage prepaid and addressed to the party to be notified (i) if to the Company, at the following address: 75 Terminal Avenue Clark, New Jersey 07066 Attn: Vincent J. Caruso with a copy to: Baer Marks & Upham LLP 805 Third Avenue New York, New York 10022 Attn: Leslie J. Levinson (ii) if to HPII, at the following address: 50 Charles Lindbergh Blvd. Suite 500 Uniondale, New York 11553-3600 Attn: Scott A. Shay with a copy to: Proskauer Rose Goetz & Mendelsohn LLP 1585 Broadway New York, New York 10036 Attn: Bruce Lieb or at such other address as any of the parties may designate by 10 days' advance written notice to the other parties. 9.7 No Finder's Fee. Each party represents that it is not, and will not be, obligated for any finder's fee or commission in connection with this transaction. The Investor agrees to indemnify and hold harmless the Company from any liability for any commission or compensation in the nature of a finder's fee (and the costs and expenses of defending against such liability or asserted liability) for which the Investor or any of its officers, employees or representatives is responsible. The Company agrees to indemnify and hold harmless the Investor from any liability for any commission or compensation in the nature of a finder's fee (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of their respective officers, employees or representatives is responsible. 9.8 Expenses. The Company agrees to pay all out-of-pocket fees and reasonable expenses incurred by HPII in connection with this Agreement and the transactions contemplated hereby (whether or not the transactions contemplated hereby are consummated) including, without limitation, (i) the reasonable fees and expenses of counsel for HPII incurred in connection with this Agreement and the transactions contemplated hereby (including the reasonable fees and expenses of Proskauer Rose Goetz & Mendelsohn LLP, and including, without limitation, any legal fees and expenses relating to any future waiver, consent or amendment, whether or not any such future action is given or consummated) and (ii) all filing fees relating to filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1974, as amended. 9.9 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of HPII and the Company. 9.10 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. 9.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. 9.12 Equitable Adjustments. Prior to the consummation of the Closing, all number of Shares referred to herein shall be equitably adjusted to account for stock splits, stock dividends, mergers and similar corporate events. [END OF TEXT] IN WITNESS WHEREOF, the parties have executed this agreement as of the date first above written. "COMPANY" TRANSWORLD HOME HEALTHCARE, INC. By:/s/Vincent J. Caruso Name: Vincent J. Caruso Title: Executive Vice President and Chief Administrative Officer "THE INVESTOR OR HPII" HYPERION PARTNERS II L.P. By: HYPERION VENTURES II L.P., its General Partner By: HYPERION FUNDING II CORP., its General Partner By:/s/Scott A. Shay Name: Scott A. Shay Title: Executive Vice President EX-99 3 Hyperion Partners II L.P. 50 Charles Lindbergh Blvd. Suite 500 Uniondale, New York 11553-3600 January 13, 1997 Transworld Home HealthCare, Inc. 75 Terminal Avenue Clark, NJ 07066 Attn: Mr. Vincent J. Caruso, Executive Vice President Gentlemen: Reference is made to the Stock Purchase Agreement (the "Stock Purchase Agreement") dated as of January 8, 1997 by and between Transworld Home HealthCare, Inc. (the "Company) and Hyperion Partners II L.P. ("HPII"). (Capitalized terms used but not defined herein shall have the meanings given to them in the Stock Purchase Agreement.) The Stock Purchase Agreement provides, among other things, that it shall be a condition precedent to the obligation of HPII to consummate the transactions contemplated by the Stock Purchase Agreement (the "Transactions") that the Banks shall have consented to the Merger and that the Merger shall have been consummated. This will confirm that, notwithstanding the foregoing, if (i) Transworld requires the proceeds of the Transactions in order to satisfy its financial covenants under the Credit Agreement and (ii) all other conditions set forth in the Stock Purchase Agreement to the obligation of HPII to consummate the Transactions have been satisfied, HPII is prepared to consummate the Transactions prior to the receipt by Transworld of the consent of the Banks to the Merger (although all other consents and waivers of the Banks and others must have been received by Transworld) and prior to the consummation of the Merger. Very truly yours, HYPERION PARTNERS II L.P. By: HYPERION VENTURES II L.P., its General Partner By: HYPERION FUNDING II CORP., its General Partner By:/s/Scott A. Shay Name: Scott A. Shay Title: Executive Vice President -----END PRIVACY-ENHANCED MESSAGE-----