-----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, NNCmAMtv4HbVJGr1UXWSxArm+XwRKmdf4JZrV+Fgrm/scDSvMC5rdRvivwcjWgI/ 4ODG7fSaXq/sfLHswhVrqA== 0000950137-99-001166.txt : 19990428 0000950137-99-001166.hdr.sgml : 19990428 ACCESSION NUMBER: 0000950137-99-001166 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990427 GROUP MEMBERS: HCR MANOR CARE INC GROUP MEMBERS: MANOR CARE HEALTH SERVICES, INC. GROUP MEMBERS: MANOR CARE, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IN HOME HEALTH INC /MN/ CENTRAL INDEX KEY: 0000818645 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HOME HEALTH CARE SERVICES [8082] IRS NUMBER: 411458213 STATE OF INCORPORATION: MN FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-41227 FILM NUMBER: 99602117 BUSINESS ADDRESS: STREET 1: 601 CARLSON PARKWAY STREET 2: CARLSON CENTER SUITE 500 CITY: MINNETONKA STATE: MN ZIP: 55305-5214 BUSINESS PHONE: 6124497500 MAIL ADDRESS: STREET 1: 601 LAKESHORE PKWY STREET 2: STE 500 CITY: MINNETONKA STATE: MN ZIP: 55305 FORMER COMPANY: FORMER CONFORMED NAME: IN HOME HEALTH INC DATE OF NAME CHANGE: 19880803 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HCR MANOR CARE INC CENTRAL INDEX KEY: 0000878736 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051] IRS NUMBER: 341687107 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE SEAGATE CITY: TOLEDO STATE: OH ZIP: 43604-2616 BUSINESS PHONE: 4192525500 MAIL ADDRESS: STREET 1: ONE SEAGATE CITY: TOLEDO STATE: OH ZIP: 43604-2616 FORMER COMPANY: FORMER CONFORMED NAME: HEALTH CARE & RETIREMENT CORP / DE DATE OF NAME CHANGE: 19930328 SC 13D/A 1 AMENDMENT #1 TO SCHEDULE 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. 1) IN HOME HEALTH, INC. .............................................................. (Name of issuer) Common Stock, par value $.01 per share ................................................................................ (Title of class of securities) 453222 ............................................ (CUSIP number) R. Jeffrey Bixler Vice President and General Counsel HCR Manor Care, Inc. 333 North Summit Street P. O. Box 10086 Toledo, Ohio 43699-0086 (419) 252-5500 ................................................................................ (Name, address and telephone number of person authorized to receive notices and communications) December 22, 1998 ............................................................................... (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(e), 13d-1(f) or 13d-1(g) 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(b) 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 disclosures 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 (the "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). (continued on following pages). Page 1 of 9 Pages 2 SCHEDULE 13D - --------------------- --------------------- CUSIP NO. 453222 PAGE OF PAGES - --------------------- --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON ManorCare Health Services, Inc. 52-0886946 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* 00 - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 5,583,334 SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER REPORTING 5,583,334 PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,583,334 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 63.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! 3 SCHEDULE 13D - --------------------- --------------------- CUSIP NO. 453222 PAGE OF PAGES - --------------------- --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON ManorCare, Inc. IRS ID No. 52-1200376 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* 00 - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 5,583,334 SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER REPORTING 5,583,334 PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,583,334 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 63.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! 4 SCHEDULE 13D - --------------------- --------------------- CUSIP NO. 453222 PAGE OF PAGES - --------------------- --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON HCR Manor Care Inc. IRS ID No. 34-1687107 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* 00 - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 5,583,334 SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER REPORTING 5,583,334 PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,583,334 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 63.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! 5 ITEM 1. SECURITY AND ISSUER. This statement supersedes the statement on Schedule 13-D filed by Manor Healthcare Corp., a Delaware corporation ("MHC"), on October 27, 1995 with respect to the common stock, par value $.01 per share (the "Common Stock"), of In Home Health, Inc., a Minnesota corporation ("IHHI"), whose principal executive offices are located at Carlson Center, Suite 500, 601 Lakeshore Parkway, Minnetonka, Minnesota 55305-5214. ITEM 2. IDENTITY AND BACKGROUND. This superseding statement on Schedule 13D is filed with respect to the Common Stock by each of ManorCare Health Services, Inc., a Delaware corporation and the successor to MHC ("MHS"), its parent Manor Care, Inc., a Delaware corporation ("Manor Care"), and its parent HCR Manor Care, Inc., a Delaware corporation ("HCR" and, together with MHS and Manor Care, the "Filing Persons"), pursuant to a Joint Filing Agreement attached hereto as Exhibit 3. The principal place of business of each Filing Person is 333 North Summit Street, P. O. Box 10086, Toledo, Ohio 43699-0086. Each Filing Person is a provider of a range of health care services, including long-term care, subacute medical care, rehabilitation therapy, home health care, pharmacy services and management services for subacute care, rehabilitation therapy, vision care and eye surgery. Set forth in Schedule A is the name, citizenship, business or residence address and present principal occupation or employment, as well as the name and address of any corporation or other organization in which such occupation or employment is conducted, of each of the directors and executive officers of each Filing Person, as of the date hereof. During the last five years, no Filing Person, nor, to the knowledge of any Filing Person, any person named in Schedule A, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) has been 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 future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. See Item 4 below. ITEM 4. PURPOSE OF TRANSACTION. (a) - (j) On May 2, 1995 MHC entered into a purchase agreement (the "Purchase Agreement") with IHHI pursuant to which MHC acquired 6,440,000 shares of Common Stock, 200,000 shares of Series A Convertible Stock (the "Preferred Stock") and a warrant exercisable for three years to purchase up to 6,000,000 shares of Common Stock (the "Warrant"). On October 23, 1995, IHHI agreed to sell to MHC an additional 310,000 shares of Common Stock. On October 24, 1998, MHS's right, as successor to MHC, to purchase Common Stock under the Warrant expired unexercised. On December 1, 1998, the Common Stock underwent a one-for-three reverse stock split. As a result of the foregoing, MHS now holds 2,250,000 shares of Common Stock and 200,000 shares of Preferred Stock, which is convertible into 3,333,334 shares of Common Stock. Pursuant to its certificate of designation, each share of Preferred Stock had the voting rights of the underlying Common Stock on an as-converted basis. On December 22, 1998, MHS and the Issuer entered into the Second Preferred Stock Modification Agreement (the "Modification Agreement") pursuant to which MHS irrevocably waived all of the Preferred Stock's voting rights of the underlying common stock granted under Section 6.01(i) of the Certificate of Designation except with respect to proposals presented to the holders of IHHI's Common Stock to: (i) wind-up, dissolve or liquidate IHHI or revoke or forfeit its charter; (ii) amend its articles of incorporation; (iii) merge or consolidate or enter into an exchange agreement with another corporation; or (iv) sell, lease, transfer or otherwise dispose of all or substantially all of IHHI's assets not in the usual and regular course of business. In exchange, IHHI irrevocably waived its right to pay dividends on the Preferred Stock in the form of shares of Common Stock. Page 2 of 9 Pages 6 Except as set forth herein, no Filing Person has any plans or proposals that relate to, or could result in, any of the matters referred to in paragraphs (a) through (j) of Item 4 of Schedule 13D. Subject to certain restrictions, the Filing Persons may at any time review or reconsider its position with respect to any such matters, but has no present intention of doing so. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) - (b) As of December 22, 1998, MHS is the direct record owner of 5,583,334 shares of Common Stock, constituting approximately 63.2% of the Common Stock outstanding, based upon 8,836,070 shares of Common Stock outstanding (consisting of 5,502,736 shares then outstanding and 3,333,334 shares issuable upon conversion of the Preferred Stock deemed to be outstanding for purposes of this Schedule pursuant to Rule 13d-3(d)(1)). Each of HCR (acting through its wholly owned subsidiaries, Manor Care and MHS), and Manor Care (acting through its wholly owned subsidiary MHS), indirectly has sole power to vote or direct the vote, and to dispose or to direct the disposition of the shares of the Common Stock directly owned by MHS. As a result, HCR and Manor Care may be deemed to beneficially own the shares of the Common Stock directly owned by MHS. None of the persons identified on Schedule A attached hereto beneficially own (including those shares for which there is a right to acquire) any shares of any class or series of IHHI. (c) Except as described in Item 4 above, there have not been any transactions in the Common Stock effected by or for the account of any of the Filing Persons or any executive officer or director the Filing Persons during the last 60 days. (d) Not Applicable. (e) Not Applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. MHS (as successor to MHC) is party to a Registration Rights Agreement with IHHI (the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement, MHS will have the right to require IHHI to use its best efforts to register for sale in an underwritten public offering under the Securities Act of 1933, as amended, (the "Securities Act") at IHHI's expense, all or any portion of the Common Stock held by MHS or the Common Stock into which the Preferred Stock, directly or indirectly, is convertible ("Registrable Securities"). IHHI will not be entitled to sell its securities in any such registration for its own account without the consent of MHS. In addition, if IHHI at any time seeks to register under the Securities Act for sale to the public any of its securities, IHHI must include, at MHS's request, MHS's Registrable Securities in the registration statement, subject to underwriter cutback provisions. Except as set forth above, none of the persons identified in Item 2 of this Schedule (including the persons listed on Schedule A attached hereto) has any contracts, arrangements, understandings or relationships (legal or otherwise) among such persons or with any other person with respect to any securities of IHHI, including, but not limited to, transfer or voting of any securities of IHHI, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss or the giving or withholding of proxies. Page 3 of 9 Pages 7 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit Description 1.* Registration Rights Agreement dated as of October 24, 1995, by and between In Home Health Inc. and Manor Healthcare Corp. 2. Second Preferred Stock Modification Agreement, dated December 22, 1998 by and between In Home Health, Inc., a Minnesota corporation, and ManorCare Health Services, Inc., a Delaware corporation. 3. Joint Filing Agreement dated March 26, 1999, by and among ManorCare Health Services, Inc. and Manor Care, Inc. and HCR Manor Care, Inc. *Exhibit filed previously. After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 26, 1999 MANORCARE HEALTH SERVICES, INC. MANOR CARE, INC. HCR MANOR CARE, INC. By: /s/ R. Jeffrey Bixler ------------------------------------ Name: R. Jeffrey Bixler Title: Vice President Page 4 of 9 Pages 8 DIRECTORS AND EXECUTIVE OFFICERS OF MANORCARE HEALTH SERVICES, INC. The name, business address and title with Manor Care, Inc. and present principal occupation or employment, of each of the directors and executive officers of ManorCare Health Services, Inc. are set forth below. Except as indicated, each person's business address is 333 North Summit Street, P. O. Box 10086, Toledo, Ohio 43699-0086. Each person listed below is a citizen of the United States.
Directors Present Principal Occupation Name Including Name of Employer Geoffrey G. Meyers Executive Vice President and Chief Financial Officer HCR Manor Care, Inc. Paul A. Ormond President and Chief Executive Officer HCR Manor Care, Inc. M. Keith Weikel Senior Executive Vice President and Chief Operating Officer HCR Manor Care, Inc. Executive Officers Name Title Paul A. Ormond President and Chief Executive Officer M. Keith Weikel Senior Executive Vice President and Chief Operating Officer Geoffrey G. Meyers Executive Vice President and Chief Financial Officer R. Jeffrey Bixler Vice President and General Counsel Nancy A. Edwards Vice President Jeffrey W. Ferguson Vice President Larry R. Godla Vice President Jeffrey A. Grillo Vice President Spencer C. Moler Vice President and Controller Richard W. Parades Vice President F. Joseph Schmitt Vice President Paul G. Sieben Vice President
Page 5 of 9 Pages 9 DIRECTORS AND EXECUTIVE OFFICERS OF MANOR CARE, INC. The name, business address and title with Manor Care, Inc. and present principal occupation or employment, of each of the directors and executive officers of Manor Care, Inc. are set forth below. Except as indicated, each person's business address is 333 North Summit Street, P. O. Box 10086, Toledo, Ohio 43699-0086. Each person listed below is a citizen of the United States.
Directors Present Principal Occupation Name Including Name of Employer Geoffrey G. Meyers Executive Vice President and Chief Financial Officer HCR Manor Care, Inc. Paul A. Ormond President and Chief Executive Officer HCR Manor Care, Inc. M. Keith Weikel Senior Executive Vice President and Chief Operating Officer HCR Manor Care, Inc. Executive Officers Name Title Paul A. Ormond President and Chief Executive Officer M. Keith Weikel Senior Executive Vice President and Chief Operating Officer Geoffrey G. Meyers Executive Vice President and Chief Financial Officer R. Jeffrey Bixler Vice President and General Counsel Nancy A. Edwards Vice President Jeffrey W. Ferguson Vice President Larry R. Godla Vice President Jeffrey A. Grillo Vice President Spencer C. Moler Vice President and Controller Richard W. Parades Vice President F. Joseph Schmitt Vice President Paul G. Sieben Vice President
Page 6 of 9 Pages 10 DIRECTORS AND EXECUTIVE OFFICERS OF HCR MANOR CARE, INC. The name, business address and title with HCR Manor Care, Inc. and present principal occupation or employment, of each of the directors and executive officers of HCR Manor Care, Inc. are set forth below. Except as indicated, each person's business address is 333 North Summit Street, P. O. Box 10086, Toledo, Ohio 43604-0086. Each person listed below is a citizen of the United States.
Present Principal Occupation Name Including Name of Employer Stewart Bainum Chairman of the Board, Realty Investment Company, Inc. Stewart Bainum, Jr. Chairman of the Board, HCR Manor Care, Inc. Joseph H. Lemieux Chief Executive Officer of Owens-Illinois, Inc. William H. Longfield Chairman and Chief Executive Officer, C.R. Board, Inc. Frederic V. Malek Chairman, Thayer Capital Partners Paul A. Ormond President and Chief Executive Officer, HCR Manor Care, Inc. Robert J. Siefers Vice Chairman and Chief Financial Officer, National City Corporation M. Keith Weikel Senior Executive Vice President and Chief Operating Officer, HCR Manor Care, Inc. Gail R. Wilensky, Ph.D. Senior Fellow at Project Hope Thomas L. Young Executive Vice President-Administration and General Counsel, Owens-Illinois, Inc. Name Executive Officers Paul A. Ormond President and Chief Executive Officer M. Keith Weikel Senior Executive Vice President and Chief Operating Officer Geoffrey G. Meyers Executive Vice President and Chief Financial Officer R. Jeffrey Bixler Vice President and General Counsel Nancy A. Edwards Vice President Jeffrey W. Ferguson Vice President Larry R. Godla Vice President Jeffrey A. Grillo Vice President Spencer C. Moler Vice President and Controller Richard W. Parades Vice President
Page 7 of 9 Pages 11 F. Joseph Schmitt Vice President Paul G. Sieben Vice President
Page 8 of 9 Pages EX-2 2 2ND PREFERRED STOCK MODIFICATION AGREEMENT 1 EXHIBIT 2 SECOND PREFERRED STOCK MODIFICATION AGREEMENT THIS SECOND PREFERRED STOCK MODIFICATION AGREEMENT ("Agreement") is made this 22nd day of December, 1998 by and between IN HOME HEALTH, INC., a Minnesota corporation ("In Home") and MANORCARE HEALTH SERVICES, INC., a Delaware corporation ("ManorCare"). WHEREAS, ManorCare holds all the outstanding shares of In Home's Series A Preferred Stock (the "Preferred Stock"), which consists of 200,000 shares of the Preferred Stock; WHEREAS, under Section 601(i) of the Certificate of Designation (the "Certificate") governing the Preferred Stock, the Preferred Stock has the right to vote on an as-if-converted basis with In Home's Common Stock by casting fifty (50) votes for each outstanding share of Preferred Stock; WHEREAS, it is anticipated that In Home will benefit from more independent and diverse control of its affairs; WHEREAS, under Section 201 of the Certificate, the annual rate of dividends payable on each share of the Preferred Stock is 12% of the liquidation value thereof; and under Section 207 of the Certificate In Home has the option to pay the dividend specified by Section 201 in shares of Common Stock having a fair market value equal to the amount of the dividend to be paid; and WHEREAS, In Home and ManorCare have agreed that ManorCare will irrevocably waive its rights under Section 601(i) of the Certificate in exchange for which In Home will waive its rights under Section 207 of the Certificate. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. REPRESENTATION BY MANORCARE. ManorCare hereby represents and warrants to In Home that it is the sole owner of the Preferred Stock, that the Preferred Stock is not subject to any encumbrances created by ManorCare or rights of any third parties, and that Manor Care has full power and authority to enter into this Agreement. 2. WAIVER. (a) ManorCare hereby irrevocably waives the voting rights of the Preferred Stock granted under Section 601(i) of the Certificate except with respect to any proposal presented to In Home's stockholders: (i) to wind-up, dissolve or liquidate In Home or revoke or forfeit its charter; (ii) to amend In Home's articles of incorporation; (iii) merge or consolidate or enter into an exchange agreement with another corporation; or (iv) sell, lease, transfer or 2 otherwise dispose of all or substantially all of In Home's assets not in the usual and regular course of business. ManorCare agrees that this Agreement and waiver shall be binding upon any transferee of any of the Preferred Shares as a condition to any transfer thereof. The waiver contained herein does not apply to any voting rights under Section 601(ii) of the Certificate, nor does this waiver create any voting rights where none now exist. (b) In Home hereby agrees that with respect to the dividends payable under Section 201 of the Certificate on the Preferred Stock, In Home irrevocably waives its right under Section 207 of the Certificate to pay such dividends in Common Stock. In Home agrees that this Agreement and waiver shall inure to the benefit of any transferee of the Preferred Shares. 3. LEGEND. All stock certificates representing Preferred Stock shall bear a legend stating: "The Preferred Stock evidenced by this certificate is subject to a Second Preferred Stock Modification Agreement under which certain of the voting rights of the holder and any subsequent transferee of these shares under Section 601(i) of the Certificate of Designation governing these shares have been waived and the Company has waived its right under Section 207 of the Certificate of Designation to pay in the form of Common Stock the dividends payable under Section 201 of the Certificate of Designation. Any transfer of these shares, whether or not for value, is subject to the condition that the transferee agrees to be bound by such waiver. A copy of the Second Preferred Stock Modification Agreement is available upon request from the issuer." 4. HEADINGS. The section headings herein are for convenience only and shall not affect the construction of this Agreement. 5. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties concerning the subject matter. No provision of this Agreement shall be modified or waived other than by a written agreement signed by both of the parties to this Agreement. 6. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 7. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Minnesota, without regard to principles of conflicts of laws. 2 3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. IN HOME HEALTH, INC. MANORCARE HEALTH SERVICES, INC. By: /s/ Wolfgang von Maack By: /s/ R. Jeffrey Bixler ----------------------------- --------------------------------- Wolfgang von Maack R. Jeffrey Bixler Its: Chairman, CEO and President Its: Vice President ----------------------------- ------------------------------- 3 EX-3 3 JOINT FILING AGREEMENT DATED 3/26/99 1 EXHIBIT 3 JOINT FILING AGREEMENT The undersigned hereby agree to jointly file a statement on Schedule 13D, together with any amendments thereto (collectively, the "Schedule 13Ds"), with the Securities and Exchange Commission pursuant to the requirements of Rule 13-d-1(f) under the Securities Exchange Act of 1934, as amended. This Joint Filing Agreement may be signed in counterpart copies. Dated: March 26, 1999 MANORCARE HEALTH SERVICES, INC. MANOR CARE, INC. HCR MANOR CARE, INC. By: /s/ R. Jeffrey Bixler -------------------------------------- Name: R. Jeffrey Bixler Title: Vice President HCR MANOR CARE INC. By: /s/ R. Jeffrey Bixler -------------------------------------- Name: R. Jeffrey Bixler Title: Vice President and General Counsel MANOR CARE, INC. By: /s/ R. Jeffrey Bixler -------------------------------------- Name: R. Jeffrey Bixler Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----