-----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, B8DQPJGmVrbcyyIBDzWEhJR9kHQ13Y1O8Ofn58Cdp64MQaqVR5UJnhogS8BYlKUY 1QDY0V10eio5rxQZnWxmmw== /in/edgar/work/20000530/0000944209-00-000959/0000944209-00-000959.txt : 20000919 0000944209-00-000959.hdr.sgml : 20000919 ACCESSION NUMBER: 0000944209-00-000959 CONFORMED SUBMISSION TYPE: SC 13E3 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20000530 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VETERINARY CENTERS OF AMERICA INC CENTRAL INDEX KEY: 0000817366 STANDARD INDUSTRIAL CLASSIFICATION: [0700 ] IRS NUMBER: 954097995 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3 SEC ACT: SEC FILE NUMBER: 005-45093 FILM NUMBER: 645327 BUSINESS ADDRESS: STREET 1: 12401 WEST OLYMPIC BOULEVARD CITY: LOS ANGELES STATE: CA ZIP: 90064-1022 BUSINESS PHONE: 310-584-6500 MAIL ADDRESS: STREET 1: 12401 WEST OLYMPIC BOULEVARD CITY: LOS ANGELES STATE: CA ZIP: 90064-1022 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: VETERINARY CENTERS OF AMERICA INC CENTRAL INDEX KEY: 0000817366 STANDARD INDUSTRIAL CLASSIFICATION: [0700 ] IRS NUMBER: 954097995 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3 BUSINESS ADDRESS: STREET 1: 12401 WEST OLYMPIC BOULEVARD CITY: LOS ANGELES STATE: CA ZIP: 90064-1022 BUSINESS PHONE: 310-584-6500 MAIL ADDRESS: STREET 1: 12401 WEST OLYMPIC BOULEVARD CITY: LOS ANGELES STATE: CA ZIP: 90064-1022 SC 13E3 1 SCHEDULE 13E-3 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _____________ SCHEDULE 13E-3 (RULE 13e-100) TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 AND RULE 13E-3 THEREUNDER RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. ____________) Veterinary Centers of America, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Veterinary Centers of America, Inc. - -------------------------------------------------------------------------------- (Name of Person(s) Filing Statement) Common Stock, Par Value $0.001 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 925514101 - -------------------------------------------------------------------------------- (CUSIP Number of Class of Securities) Robert L. Antin Julie Kaufer, Esq. Chief Executive Officer Troop Steuber Pasich Reddick & Tobey, LLP 12401 West Olympic Boulevard 2029 Century Park East, 24th Floor Los Angeles, CA 90064 Los Angeles, CA 90067 (310) 584-6500 (310) 728-3000
- -------------------------------------------------------------------------------- (Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of the Person(s) Filing Statement) This statement is filed in connection with (check the appropriate box): a. [X] The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Act of 1933. b. [ ] The filing of a registration statement under the Securities Act of 1933. c. [ ] A tender offer. d. [ ] None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: [X] Check the following box if the filing is a final amendment reporting the results of the transaction: [ ] Calculation of Filing Fee - -------------------------------------------------------------------------------- Transaction Amount of Filing Fee Valuation* - -------------------------------------------------------------------------------- $306,040,995 $61,208 - -------------------------------------------------------------------------------- *Set forth the amount on which the filing fee is calculated and state how it was determined. [X] Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $61,208 Filing Party: Veterinary Centers of America, Inc. ----------------- -------------------------------------- Form or Registration No.: Schedule 14(a) Date Filed: May 30, 2000 ----------------- ----------------------------------------
INTRODUCTION This Rule 13e-3 Transaction Statement on Schedule 13e-3 (the "Schedule 13e- 3") is being filed by Veterinary Centers of America, Inc., a Delaware corporation ("VCA"), the issuer of the equity securities which are the subject of a Rule 13e-3 transaction, in connection with a merger of Vicar Recap, Inc., a Delaware corporation and wholly owned by Green Equity Investors III, L.P., with and into VCA, with VCA as the surviving corporation. Pursuant to the Agreement and Plan of Merger, dated as of March 30, 2000, immediately prior to the Merger, certain members of VCA management will exchange approximately 266,666 shares of VCA common stock (or other consideration of equivalent value) for a corresponding amount of Vicar Recap common stock. At the effective time of the Merger, all issued and outstanding shares of common stock of VCA, other then shares held by dissenting shareholders, Green Equity, Vicar Recap and in VCA's treasury, will be cancelled and converted into the right to receive, a cash payment per share, without interest, of $15.00. As a result of the Merger, and after giving effect to the issuance of employee incentive options and warrants to be issued to GS Mezzanine Partners II, L.P., Green Equity and certain VCA employee stockholders will own 71.75% and 22.5%, respectively, on a fully diluted basis, of VCA. Concurrently, with the filing of this Schedule 13e-3, VCA is filing a preliminary proxy statement (the "Proxy Statement"), pursuant to which the stockholders of VCA will be given notice of the Merger. The information in the Proxy Statement, including all annexes thereto, is expressly incorporated by reference herein in its entirety and responses to each item herein are qualified in their entirety by the provisions of the Proxy Statement. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Proxy Statement. ITEM 1. SUMMARY TERM SHEET. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER" and "SUMMARY" of the Proxy Statement are incorporated herein by reference. ITEM 2. SUBJECT COMPANY INFORMATION. (a) Name and Address. The information contained in the section entitled "SUMMARY - The Companies" of the Proxy Statement is incorporated herein by reference. (b) Securities. The information contained in the section entitled "THE SPECIAL MEETING - Record Date and Voting" of the Proxy Statement is incorporated herein by reference. (c) Trading Market and Prices. The information contained in the section entitled "PRICE RANGE OF COMMON STOCK" of the Proxy Statement is incorporated herein by reference. (d) Dividends. The information contained in the section entitled "DIVIDENDS" of the Proxy Statement is incorporated herein by reference. (e) Prior Public Offerings. None. (f) Prior Stock Purchases. The information contained in the section entitled "COMMON STOCK PURCHASE INFORMATION" of the Proxy Statement is incorporated herein by reference. ITEM 3. IDENTITY AND BACKGROUND OF THE FILING PERSON. (a), (c) Name and Address. Business and Background of Natural Persons. The information contained in the sections entitled "PRINCIPAL STOCKHOLDERS" and "DIRECTORS AND EXECUTIVE OFFICERS OF VCA" of the Proxy Statement are incorporated herein by reference. During the last five years, to the best knowledge of VCA, none of any persons listed in "DIRECTORS AND EXECUTIVE OFFICERS OF VCA" has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining further violations of, or prohibiting activities subject to, federal or state securities laws or finding any violation of such laws. (b) Business and Background of Entities. The information contained in the section entitled "SUMMARY - The Companies" of the Proxy Statement is incorporated herein by reference. ITEM 4. TERMS OF THE TRANSACTIONS. (a) (1) Not applicable. (a) (2) (i) The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY" and "THE MERGER AGREEMENT - Structure and Timing" of the Proxy Statement are incorporated herein by reference. (ii) The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY" and "THE MERGER AGREEMENT - Consideration to be Received in the Merger" of the Proxy Statement are incorporated herein by reference. (iii) The information contained in the sections entitled "SPECIAL FACTORS - Background of the Merger" and "- Purpose and Structure of the Merger" of the Proxy Statement are incorporated herein by reference. (iv) The information contained in the section entitled "THE SPECIAL MEETING - Record Date and Voting" of the Proxy Statement is incorporated herein by reference. (v) The information contained in the sections entitled "SPECIAL FACTORS - Effects of the Merger" and "- Interests of VCA Directors and Officers in the Merger" of the Proxy Statement are incorporated herein by reference. (vi) The information contained in the section entitled "SPECIAL FACTORS - Accounting Treatment of the Merger" of the Proxy Statement is incorporated herein by reference. (vii) The information contained in the section entitled "SPECIAL FACTORS - Material Federal Income Tax Consequences of the Merger" of the Proxy Statement is incorporated herein by reference. (c) The information contained in the section entitled "SPECIAL FACTORS - Interests of VCA Directors and Officers in the Merger" of the Proxy Statement is incorporated herein by reference. (d) The information contained in the section entitled "SPECIAL FACTORS - Appraisal Rights" of the Proxy Statement is incorporated herein by reference. (e) VCA has made no provisions in connection with the Merger to grant unaffiliated security holders access to the corporate files of VCA or to obtain counsel or appraisal services at the expense of VCA. (f) Not applicable. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. (a) The information contained in the sections entitled "SPECIAL FACTORS - Interests of VCA Directors and Officers in the Merger," "- Background of the Merger" and "- Purpose and Structure of the Merger" of the Proxy Statement are incorporated herein by reference. (b)-(c) The information contained in the sections entitled "SPECIAL FACTORS - Background of the Merger" and "- Purpose and Structure of the Merger" of the Proxy Statement are incorporated herein by reference. (d) The information contained in the sections entitled "SPECIAL FACTORS - Interests of VCA Directors and Officers in the Merger," "- Background of the Merger" and "- Purpose and Structure of the Merger" of the Proxy Statement are incorporated herein by reference. (e) The information contained in the sections entitled "SPECIAL FACTORS - Interests of VCA Directors and Officers in the Merger" and "THE MERGER AGREEMENT" of the Proxy Statement are incorporated herein by reference. ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS. (b) The information contained in the sections entitled "SUMMARY" and "SPECIAL FACTORS - Effects of the Merger" of the Proxy Statement are incorporated herein by reference. (c) The information contained in the sections entitled "SUMMARY," "SPECIAL FACTORS - Effects of the Merger," "- Interests of VCA Directors and Officers in the Merger" and "DIVIDENDS" of the Proxy Statement are incorporated herein by reference. ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS. (a), (c) The information contained in the sections entitled "SPECIAL FACTORS - Background of the Merger," "- Purpose and Structure of the Merger" and "- Recommendations of the Special Committee and the Board of Directors; Fairness of the Merger" of the Proxy Statement are incorporated herein by reference. (b) The information contained in the sections entitled "SPECIAL FACTORS - Risk that the Merger will not be Completed" and "- Background of the Merger" of the Proxy Statement are incorporated herein by reference. (d) The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY," "SPECIAL FACTORS - Effects of the Merger" and "- Material Federal Income Tax Consequences of the Merger" of the Proxy Statement are incorporated herein by reference. ITEM 8. FAIRNESS OF THE TRANSACTION. (a), (b) The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY," "THE SPECIAL MEETING - Record Date and Voting, "SPECIAL FACTORS - Background of the Merger," "- Recommendations of the Special Committee and the Board of Directors; Fairness of the Merger," "- Opinion of Houlihan Lokey Howard & Zukin Capital" and "- Opinion of Jefferies & Company, Inc." of the Proxy Statement and Annex B, "Opinion of Jefferies & Company, Inc.," and Annex C, "Opinion of Houlihan Lokey Howard & Zukin Capital," of the Proxy Statement are incorporated herein by reference. (c) The information contained in the section entitled "THE SPECIAL MEETING - Record Date and Voting" of the Proxy Statement is incorporated herein by reference. (d) The information contained in the sections entitled "SPECIAL FACTORS - Background of the Merger," and "- Recommendations of the Special Committee and the Board of Directors; Fairness of the Merger" of the Proxy Statement are incorporated herein by reference. (f) Not applicable. ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS. (a)-(c) The information contained in the sections entitled "SPECIAL FACTORS - Background of the Merger," "- Opinion of Houlihan Lokey Howard & Zukin Capital," "- Opinion of Jefferies & Company, Inc." and "- Recommendations of the Special Committee and the Board of Directors; Fairness of the Merger" of the Proxy Statement and Annex B, "Opinion of Jefferies & Company, Inc." and Annex C, "Opinion of Houlihan Lokey Howard & Zukin Capital," of the Proxy Statement are incorporated herein by reference. ITEM 10. SOURCES AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION. (a), (b), (d) The information contained in the section entitled "SPECIAL FACTORS - Financing the Merger" of the Proxy Statement is incorporated herein by reference. VCA has no alternative financing arrangements or alternative financing plans if the primary financing falls through. (c) The information contained in the section entitled "EXPENSES" of the Proxy Statement is incorporated herein by reference. ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. (a) The information contained in the section entitled "PRINCIPAL STOCKHOLDERS" of the Proxy Statement is incorporated herein by reference. (b) Not applicable. ITEM 12. THE SOLICITATION OR RECOMMENDATION. (d) The information contained in the sections entitled "THE SPECIAL MEETING - Record Date and Voting," "SUMMARY" and "SPECIAL FACTORS - Interests of VCA Directors and Officers in the Merger" of the Proxy Statement are incorporated herein by reference. (e) The information contained in the sections entitled "SUMMARY" and "SPECIAL FACTORS - Recommendations of the Special Committee and the Board of Directors; Fairness of the Merger" of the Proxy Statement are incorporated herein by reference. ITEM 13. FINANCIAL STATEMENTS. (a) The information contained in the section entitled "SUMMARY SELECTED HISTORICAL FINANCIAL DATA" to the Proxy Statement is incorporated herein by reference. (b) Not applicable. ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED. (a), (b) The information contained in the sections entitled "SPECIAL FACTORS - Background of the Merger," "EXPENSES" and "THE SPECIAL MEETING - Voting, Revocation and Solicitation of Proxies" of the Proxy Statement are incorporated herein by reference. ITEM 15. ADDITIONAL INFORMATION. (b) The information contained in the Proxy Statement, including the annexes thereto, is incorporated herein by reference. ITEM 16. EXHIBITS. (a) Preliminary Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on May 30, 2000 (incorporated herein by reference to the Proxy Statement). (b)(1) Commitment Letter, dated March 30, 2000, between Goldman Sachs Credit Partners, L.P. and Green Equity Investors III, L.P. (to be filed by amendment). (b)(2) Commitment Letter, dated March 30, 2000, between GS Mezzanine Partners II, L.P. and Green Equity Investors III, L.P. (to be filed by amendment). (c)(1) Opinion of Jefferies & Company, Inc. (incorporated herein by reference to Annex B of the Proxy Statement). (c)(2) Opinion of Houlihan Lokey Howard & Zukin Capital (incorporated herein by reference to Annex C of the Proxy Statement). (d)(1) Agreement and Plan of Merger, dated March 30, 2000, among Veterinary Centers of America, Inc., Vicar Recap, Inc. and Vicar Operating, Inc. (incorporated herein by reference to Annex A of the Proxy Statement). (d)(2) Voting Agreement, dated March 30, 2000, between Vicar Recap and Robert L. Antin (incorporated herein by reference to Annex D of the Proxy Statement). (d)(3) Exchange and Subscription Agreement, dated March 30, 2000, between Vicar Recap and Robert L. Antin (incorporated herein by reference to Annex E of the Proxy Statement). (d)(4) Stock Purchase Agreement, dated March 30, 2000, between Green Equity Investors III, L.P. and Robert L. Antin. (f) Section 262 of the General Corporation Law of the State Delaware (incorporated herein by reference to Annex F to the Proxy Statement). (g) Not applicable. SIGNATURE After due inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: May 26, 2000 Veterinary Centers of America, Inc. By: /s/ Tomas W. Fuller --------------------------------------- Name: Tomas W. Fuller Title: Vice President, Chief Financial Officer Exhibit List ------------
Exhibit Number Description 16 (a) Preliminary Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on May 30, 2000 (incorporated herein by reference to the Proxy Statement). 16 (b)(1) Commitment Letter, dated March 30, 2000, between Goldman Sachs Credit Partners, L.P. and Green Equity Investors III, L.P. (to be filed by amendment). 16 (b)(2) Commitment Letter, dated March 30, 2000, between GS Mezzanine Partners II, L.P. and Green Equity Investors III, L.P. (to be filed by amendment). 16 (c)(1) Opinion of Jefferies & Company, Inc. (incorporated herein by reference to Annex B of the Proxy Statement). 16 (c)(2) Opinion of Houlihan Lokey Howard & Zukin Capital (incorporated herein by reference to Annex C of the Proxy Statement). 16 (d)(1) Agreement and Plan of Merger, dated March 30, 2000, among Veterinary Centers of America, Inc., Vicar Recap, Inc. and Vicar Operating, Inc. (incorporated herein by reference to Annex A of the Proxy Statement). 16 (d)(2) Voting Agreement, dated March 30, 2000, between Vicar Recap and Robert L. Antin (incorporated herein by reference to Annex D of the Proxy Statement). 16 (d)(3) Exchange and Subscription Agreement, dated March 30, 2000, between Vicar Recap and Robert L. Antin (incorporated herein by reference to Annex E of the Proxy Statement). 16 (d)(4) Stock Purchase Agreement, dated March 30, 2000, between Green Equity Investors III, L.P. and Robert L. Antin. 16 (f) Section 262 of the Delaware Corporation Law of the State Delaware (incorporated herein by reference to Annex F to the Proxy Statement).
EX-99.D(4) 2 STOCK PURCHASE AGREEMENT DATED 3/30/00 Exhibit 99d(4) STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of March 30, 2000, by and between Robert L. Antin, an individual (the "Seller"), and Green Equity Investors III, L.P., a Delaware limited partnership (the "Purchaser"). WHEREAS, Veterinary Centers of America, Inc., a Delaware corporation (the "Company"), Vicar Operating, Inc., a Delaware corporation and wholly owned subsidiary of Company ("Operating Company"), and Vicar Recap, Inc., a Delaware corporation ("Recap"), are entering into an Agreement and Plan of Merger, dated as of March 30, 2000, (as may be modified or amended from time to time, the "Merger Agreement"), which provides, among other things, that prior to the Merger the Company will contribute all of its assets, properties, business operations, and liabilities to Operating Company, followed by the merger of Recap with and into Company with Company as the surviving corporation (the "Merger"); WHEREAS, subject to the consummation of the Merger, the Seller desires to sell, and the Purchaser desires to purchase, all of the shares (not to exceed 919,259 shares) (the "Shares") of the common stock, $.001 par value per share, of the Company (the "Common Stock") beneficially held by Seller at the time of the Closing hereunder (other than shares which Seller is obligated to transfer to Recap pursuant to the terms and conditions set forth in that certain Exchange and Subscription Agreement dated as of the date hereof) for the consideration and on the terms set forth in this Agreement; NOW, THEREFORE, in consideration of the promises and mutual covenants and agreements contained herein, the Purchaser and the Seller hereby agree as follows: 1. Purchase of the Shares. ---------------------- 1.1 The Purchase. Upon the terms and subject to the conditions set ------------ forth herein, the Purchaser agrees to purchase from the Seller, and the Seller agrees to sell to the Purchaser (the "Purchase"), all of the Seller's right, title and interest in the Shares at a price of $15.00 per share (the "Purchase Price"). 1.2 The Closing. The closing of the Purchase of the Shares and the ----------- other transactions contemplated by this Agreement (the "Closing") shall take place immediately prior to the closing of the Merger. At the Closing of the Purchase, the Seller shall deliver to the Purchaser certificates evidencing all of the Shares together with stock powers separate from certificate with signatures guaranteed sufficient to cause the Shares to be transferred to the name of the Purchaser, and the Purchaser shall deliver to the Seller immediately available funds as payment by wire transfer of the Purchase Price for such Shares to an account designated by the Seller. The date on which the Closing actually occurs is hereinafter referred to as the "Closing Date." 2. Representations, Warranties and Covenants of Seller. The Seller --------------------------------------------------- represents, warrants and covenants to the Purchaser as follows: 2.1 Competency. The Seller is an individual with principal residence ---------- in the State of California. The Seller is of legal age, competent to enter into a contractual obligation, and a citizen of the United States of America. 2.2 Title; No Encumbrances. The Seller has and on the Closing Date: ---------------------- (a) is the exclusive owner of the Shares and is entitled to all rights evidenced thereby; and (b) has the full right, power and authority to sell, assign, transfer and deliver such Shares hereunder, free and clear of any and all claims, liens, pledges, charges, restrictions, encumbrances, security interests or other rights or interests of any person whatsoever. Upon the transfer of the Shares to the Purchaser pursuant to this Agreement, the Purchaser will receive valid, good and marketable title to the Shares, free and clear of any and all claims, liens, pledges, charges, restrictions, encumbrances, security interests or other rights or interests of any person whatsoever. 2.3 Successors and Assigns. Seller acknowledges and represents that ---------------------- all authority conferred or agreed to be conferred in this Agreement shall be binding upon the successors, assigns, heirs, executors, administrators and legal representatives of the Seller and this Agreement shall not be affected by, and shall survive, the death or incapacity of the Seller. 2.4 No Conflict. The execution and delivery of this Agreement by the ----------- Seller do not, and the consummation and performance by the Seller of this Agreement and the transactions contemplated hereby will not, (i) conflict with or violate any foreign, federal, state or local law, statute, treaty, ordinance, rule, regulation, order, writ, injunction, decree or judgment applicable to the Seller or by which any of his properties or assets is bound or affected, or (ii) require any consent, approval, authorization or permit of, or filing with or notification to, (a) any governmental or regulatory authority, either domestic or foreign ("Governmental Entities"), or (b) any third party. 2.5 No Litigation. There is no claim, action, suit, litigation, ------------- proceeding, or arbitration or investigation of any kind, at law or in equity, (including actions or proceedings seeking injunctive relief) pending or, to the knowledge of the Seller, threatened against, affecting or involving the Seller which seeks to prevent or challenge the transactions contemplated hereby, or which seeks to challenge the record and/or beneficial ownership of the Shares by the Seller. The Seller is not subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or continuing investigation by, any Governmental Entity, or any judgment, order, writ, injunction, rule, decree or award of any Governmental Entity or arbitrator (collectively, "Orders") including, without limitation, cease-and-desist or other orders, except for Orders that do not prevent or challenge the transactions contemplated hereby and do not challenge the record and/or beneficial ownership of the Shares by the Seller. 2.6 No Broker. No broker, finder or investment banker is entitled to --------- any brokerage, finder's or other fee or commission in connection with the Purchase based upon arrangements made by or on behalf of the Seller. 3. Conditions to the Obligations of the Parties. -------------------------------------------- -2- 3.1 Merger Agreement Conditions. The conditions to the Merger --------------------------- Agreement shall have been satisfied or waived and the parties to the Merger Agreement shall have represented that they intend to consummate the Merger upon consummation of the Purchase and Exchange. 3.2 Legal Proceedings. No Governmental Entity shall have notified ----------------- either party to this Agreement that it intends to commence proceedings to restrain or prohibit the transactions contemplated hereby or force rescission, unless such Governmental Entity shall have withdrawn such notice and abandoned any such proceedings prior to the time which otherwise would have been the Closing Date. 3.3 Representations and Warranties. All representations and ------------------------------ warranties in this Agreement by the Seller shall be true and correct in all material respects on the date when made and on and as of the Closing Date with the same effect as if made on and as of the Closing Date. 3.4 Covenants and Agreements. The Seller shall have performed or ------------------------ complied in all material respects with all covenants and conditions contained in this Agreement or in any agreement, certificate or instrument to be executed pursuant hereto required to be performed or complied with at or prior to the Closing. 4. Miscellaneous. ------------- 4.1 Additional Agreements. --------------------- (a) Subject to the terms and conditions of this Agreement, each of the parties hereto agrees to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws or regulations to consummate and make effective all of the transactions contemplated by this Agreement. In case at any time after the Closing of the transactions contemplated by this Agreement any further action is necessary to carry out the purposes of this Agreement, to vest the Purchaser with full title to all of the Shares, or to transfer record and beneficial ownership of the Shares to the Purchaser and to have a certificate representing the Shares issued in the name of the Purchaser, the Seller shall take all such necessary action as may be requested by the Purchaser. (b) In the event that after the Closing, the Merger fails to be consummated for any reason whatsoever and the Merger Agreement terminated, the parties hereto agree that concurrently with the termination of the Merger Agreement, regardless of the price at which the Common Stock of the Company is quoted to be at that time on NASDAQ or any other national securities exchange on which the Common Stock of the Company is listed, the Purchaser shall deliver to the Seller certificates evidencing all of the Shares together with stock powers separate from certificate with signatures guaranteed sufficient to cause the Shares to be transferred to the name of the Seller, and the Seller shall deliver to the Purchaser immediately available funds as payment by wire transfer of the Purchase Price to an account designated by the Purchaser. 4.2 Successors and Assigns. This Agreement shall be binding upon, ---------------------- inure to the benefit of, and be enforceable by, the parties hereto and their respective -3- successors and permitted assigns; provided, however, that neither this Agreement nor any right or obligation hereunder may be assigned by either party without the prior written consent of the other party. 4.3 Governing Law. This Agreement has been negotiated and entered ------------- into in the State of Delaware and all questions with respect to this Agreement and the rights and liabilities of the parties shall be governed by the laws of the State of California, regardless of the choice of law provisions of California or of any other jurisdiction. 4.4 Headings. The article and section headings in this Agreement -------- are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular article or section. 4.5 Counterparts. This Agreement may be executed simultaneously in ------------ two counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. 4.6 Complete Agreement. This Agreement and any documents referred to ------------------ herein or executed contemporaneously herewith constitute the parties' entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings. 4.7 Waiver. No waiver of any breach or default hereunder shall be ------ considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. 4.8 Severability. If any provision of this Agreement shall be ------------ invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render invalid or unenforceable any other severable provision of this Agreement, and this Agreement shall be carried out as if any such invalid or unenforceable provision were not contained herein. 4.9 Survival of Representations and Warranties and Agreements. --------------------------------------------------------- All of the representations, warranties, covenants and agreements in this Agreement and in any other instrument or document delivered in connection herewith or in any instrument delivered pursuant to this Agreement shall be true on the date hereof and on the Closing Date and shall survive the Closing. 4.10 Legal Fees. If any action is brought to enforce or interpret the ---------- terms, conditions or provisions of this Agreement, the prevailing party in such action shall be entitled to its reasonable attorneys' fees, costs and necessary disbursements incurred in connection therewith, in addition to any other relief to which such party may be entitled. 4.11 Specific Performance. Each of the parties hereto acknowledges -------------------- and agrees that the other party hereto would be irreparably damaged in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the parties hereto agrees that each shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this agreement and the terms and provisions hereof in -4- any action instituted in any court of the United States or any state thereof having subject matter jurisdiction, in addition to any other remedy to which such party may be entitled, at law or in equity. [NEXT PAGE IS SIGNATURE PAGE] -5- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth hereinabove. PURCHASER GREEN EQUITY INVESTORS III, L.P. By: GEI Capital III, LLC Its general partner By: /s/ John Danhakl ---------------------------- Name: John Danhakl Title: Manager SELLER /s/ Robert L. Antin -------------------------------- Robert L. Antin -6- -----END PRIVACY-ENHANCED MESSAGE-----