<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. )
Under the Securities Exchange Act of 1934
Centennial HealthCare Corporation
-------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
---------------------------------------------------------------
(Title of Class of Securities)
150937100
-----------------------------------------------------------------
(CUSIP Number of Class of Securities)
Joel Ackerman
Hilltopper Holding Corp.
c/o E.M. Warburg, Pincus & Co., LLC
466 Lexington Avenue
New York, New York 10017
(212) 878-0600
--------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copies to:
William J. Hewitt, Esq. Daryl R. Griswold, Esq Sandra P. Barber
Reboul, MacMurray, Centennial HealthCare South Atlantic
Hewitt, Maynard & Corporation Venture Funds
Kristol 400 Perimeter Center 614 West Bay Street
45 Rockefeller Plaza Terrace Tampa, FL 33606-2704
New York, NY 10111 Atlanta, GA 30346 (813) 253-2500
(212) 841-5700 (770) 698-9040
Steven J. Gartner, Esq.
David K. Boston, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
February 24, 2000
-------------------------------------------------------------
(Date of Event which Requires Filing of this Schedule)
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 ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following: [ ]
<PAGE>
SCHEDULE 13D
- ----------------------- ------------------
CUSIP No. 150937100 Page 2 of 53 Pages
- ----------------------- ------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg, Pincus Equity Partners, 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
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ----------- --------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------- ----------------------------------------------------------
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 5,505,623
EACH
REPORTING --------- ----------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
0
--------- ----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
5,505,623 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- ------------------
CUSIP No. 150937100 Page 3 of 53 Pages
- ----------------------- ------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg, Pincus Netherlands Equity Partners I, C.V.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands
- ----------- --------------------------------------------------------------------
7 SOLE VOTING POWER
0
--------------------------------------------------------------------
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 5,505,623
EACH
REPORTING --------- -------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
0
-------- --------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
5,505,623 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- ------------------
CUSIP No. 150937100 Page 4 of 53 Pages
- ----------------------- ------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg, Pincus Netherlands Equity Partners II, C.V.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 5,505,623
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
5,505,623 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- ------------------
CUSIP No. 150937100 Page 5 of 53 Pages
- ----------------------- ------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg, Pincus Netherlands Equity Partners III, C.V.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 5,505,623
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
5,505,623 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- ------------------
CUSIP No. 150937100 Page 6 of 53 Pages
- ----------------------- ------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg, Pincus & Co.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 5,505,623
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
5,505,623 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- ------------------
CUSIP No. 150937100 Page 7 of 53 Pages
- ----------------------- ------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
E.M. Warburg, Pincus & Co., LLC
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 5,505,623
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
5,505,623 (See Item 5)
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- ------------------
CUSIP No. 150937100 Page 8 of 53 Pages
- ----------------------- ------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hilltopper Holding Corp.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 5,505,623
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
5,505,623
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- ------------------
CUSIP No. 150937100 Page 9 of 53 Pages
- ----------------------- ------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hilltopper Acquisition Corp.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Georgia
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 5,505,623
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
5,505,623
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 10 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Welsh, Carson, Anderson & Stowe VI, 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
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 2,520,193
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,520,193
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
2,520,193
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.1%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 11 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WCAS VI Partners, L.P.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 2,520,193
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,520,193
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
2,520,193 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.1%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 12 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WCAS Capital 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
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 246,896
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
246,896
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
246,896
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 13 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WCAS Healthcare Partners, 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
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 81,384
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
81,384
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
81,384
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 14 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WCAS HP Partners, L.P.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 81,384
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
81,384
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
81,384 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 15 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WCAS CP II Partners
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 246,896
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
246,896
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
246,896
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.2%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 16 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrick J. Welsh
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 49,977
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
49,977
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
49,977
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 17 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Russell L. Carson
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 49,977
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
49,977
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
49,977
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 18 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bruce K. Anderson
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 29,977
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
29,977
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER2
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
29,977
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 19 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Andrew M. Paul
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 12,707
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
12,707
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
12,707
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 20 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert A. Minicucci
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 10,772
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
10,772
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
10,772
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.09%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 21 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Paul B. Queally
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 705
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
705
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
705
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.006%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 22 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thomas E. McInerney
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 10,000
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
10,000
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
10,000
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.08%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 23 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
South Atlantic Venture Fund II, Limited Partnership
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 798,963
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
798,963
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
798,963
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 24 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
South Atlantic Venture Fund III, Limited Partnership
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 206,214
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
206,214
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
206,214
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 25 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Burton Partnership, Limited Partnership
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 187,500
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
187,500
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
187,500
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 26 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
South Atlantic Venture Partners II, Limited Partnership
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 798,963
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
798,963
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
798,963 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 27 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
South Atlantic Venture Partners III, Limited Partnership
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 206,214
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
206,214
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
206,214 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 28 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donald W. Burton
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 187,500
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
187,500
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
187,500 (See Item 5)
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 29 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J. Stephen Eaton
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 1,115,371
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,115,371
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
1,115,371
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.4%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 30 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lawrence W. Lepely, Jr.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 83,225
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
83,225
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
83,225
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 31 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alan C. Dahl
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 92,792
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
92,792
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
92,792
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
- ----------------------- -------------------
CUSIP No. 150937100 Page 32 of 53 Pages
- ----------------------- -------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Kent C. Fosha, Sr.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- ----------- --------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
- --------------------- --------- ------------------------------------------------
7 SOLE VOTING POWER
0
--------- ------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED 8,970
BY EACH REPORTING
PERSON WITH
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
8,970
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
8,970
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.08%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
This Schedule 13D is being filed on behalf of:
a. Warburg, Pincus Equity Partners, L.P., a Delaware limited partnership
("WPEP"), Warburg, Pincus Netherlands Equity Partners I, C.V., a Netherlands
limited partnership ("WPNEPI"), Warburg, Pincus Netherlands Equity Partners II,
C.V., a Netherlands limited partnership ("WPNEPII"), Warburg, Pincus Netherlands
Equity Partners III, C.V., a Netherlands limited partnership ("WPNEPIII"),
Warburg, Pincus & Co., a New York general partnership ("WP"), E.M. Warburg,
Pincus & Co., LLC, a New York limited liability company ("EMW"), Hilltopper
Holding Corp., a Delaware corporation ("Parent"), Hilltopper Acquisition Corp.,
a Georgia corporation ("Merger Sub" and, collectively with WPEP, WPNEPI,
WPNEPII, WPNEPII, WP, EMW and Parent, the "Warburg Reporting Persons");
b. Welsh, Carson, Anderson, & Stowe VI, L.P., a Delaware limited
partnership ("WCAS VI"), WCAS Capital Partners II, L.P., a Delaware limited
partnership ("WCAS CP II"), WCAS Healthcare Partners, L.P., a Delaware limited
partnership (WCAS HP"), WCAS HP Partners, L.P., a Delaware limited partnership
("HP Partners"), WCAS VI Partners, a Delaware general partnership (VI
Partners"), WCAS CP II Partners, a New Jersey general partnership ("CP II
Partners"), Patrick J. Welsh, Russell L. Carson, Bruce K. Anderson, Andrew M.
Paul, Thomas E. McInerney, Robert A. Minicucci and Paul B. Queally
(collectively, the "WCAS Reporting Persons");
c. South Atlantic Venture Fund II, Limited Partnership, a Delaware limited
partnership ("South Atlantic II"), South Atlantic Venture Fund III, Limited
Partnership, a Delaware limited partnership ("South Atlantic III"), The Burton
Partnership, Limited
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<PAGE>
Partnership, a Delaware limited partnership ("Burton LP"), South Atlantic
Venture Partners II, Limited Partnership, a Delaware limited partnership ("SAVP
II"), South Atlantic Venture Partners III, Limited Partnership, a Delaware
limited partnership ("SAVP III") and Donald W. Burton ("Burton" collectively
with South Atlantic II, South Atlantic III, Burton LP, SAVP II and SAVP III, the
"South Atlantic Reporting Persons"); and
d. J. Stephen Eaton, Lawrence W. Lepley, Jr., Alan C. Dahl and Kent C.
Fosha, Sr. (collectively, the "Management Reporting Persons" and, collectively
with the Warburg Reporting Persons, the WCAS Reporting Persons and the South
Atlantic Reporting Persons, the "Reporting Persons").
The Reporting Persons are making this single, joint filing because they may
be deemed to constitute a "group" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The agreement
among the Reporting Persons to file jointly (the "Joint Filing Agreement") is
attached hereto as Exhibit 4. Each Reporting Person disclaims beneficial
ownership of all shares of Common Stock (as defined below), other than those
reported herein as being owned by it.
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the Common Stock, par value $0.01
per share (the "Common Stock"), of Centennial HealthCare Corporation, a Georgia
corporation (the "Company"), and is being filed pursuant to Rule 13d-1 under the
Exchange Act. The address of the principal executive offices of the Company
is 400 Perimeter Center Terrace, Suite 650, Atlanta, Georgia 30346.
34 of 53
<PAGE>
Item 2. Identity and Background.
Warburg Reporting Persons:
- --------------------------
(a) The sole general partner of WPEP, WPNEPI, WPNEPII and WPNEPIII
(collectively, the "WP Funds") is WP. EMW manages the WP Funds. Lionel I. Pincus
is the managing partner of WP and the managing member of EMW and may be deemed
to control both WP and EMW. WP has a 20% interest in the profits of the WP Funds
as the general partner. Parent is wholly owned by WPEP and Merger Sub is wholly
owned by Parent. The general partners of WP and the members of EMW, and their
respective principal business addresses and principal occupations are set forth
on Schedule I hereto. The directors and executive officers of Parent and Merger
Sub, and their respective principal business addresses and principal occupations
are set forth on Schedule II hereto.
(b) The address of the principal business and principal office of each of
the Warburg Reporting Entities is 466 Lexington Avenue, New York, New York
10017.
(c) The principal business of the WP Funds is that of a partnership engaged
in making venture capital and related investments. The principal business of WP
is acting as general partner of the WP Funds, Warburg, Pincus Ventures
International, L.P., Warburg, Pincus Ventures, L.P., Warburg Pincus Investors,
L.P., and Warburg, Pincus Capital Company, L.P. and certain related funds. The
principal business of EMW is acting as manager of the WP Funds, Warburg, Pincus
Ventures International, L.P., Warburg, Pincus Ventures, L.P., Warburg, Pincus
Investors, L.P., and
35 of 53
<PAGE>
Warburg, Pincus Capital Company, L.P. Parent and Merger Sub were formed solely
to effect the transactions described herein.
WCAS Reporting Persons
- ----------------------
(a) The sole general partner of WCAS VI is VI Partners; the sole general
partner of WCAS HP is HP Partners; and the sole general partner of WCAS CP II is
CP II Partners.
(b) The address of the principal business and principal office of each of
the WCAS Reporting Persons is 320 Park Avenue, Suite 2500, New York, NY 10022.
(c) The principal business of the WCAS VI, WCAS HP and WCAS CP II is that
of a private investment partnership. The principal business of VI Partners, HP
Partners and CP II Partners is acting as general partner of WCAS VI, WCAS HP and
WCAS CP II, respectively. The general partners of VI Partners, HP Partners and
CP II Partners and their respective principal business addresses and principal
occupations are set forth on Schedule III hereto.
South Atlantic Reporting Persons
- --------------------------------
(a) The sole general partner of South Atlantic II is SAVP II, the sole
general partner of South Atlantic III is SAVP III and the sole general partner
of Burton LP is Burton.
(b) The address of the principal business and principal office of each of
the South Atlantic Reporting Persons, other than Burton LP, is 614 West Bay
Street, Tampa, FL 33606. The address of the principal business and principal
office of Burton LP is 565 Pine Drive, Jackson, Wyoming 83001.
(c) The principal business of South Atlantic II and South Atlantic III is
that of a private investment partnership. The
36 of 53
<PAGE>
principal business of Burton LP is that of a partnership investing in public and
private stocks. The principal business of SAVP II and SAVP III is acting as
general partner of South Atlantic II and South Atlantic III, respectively.
Burton's principal occupation is acting as Managing General Partner of the South
Atlantic Reporting Persons. The general partners of South Atlantic II, South
Atlantic III and Burton LP and their respective principal business addresses and
principal occupations are set forth on Schedule IV hereto.
Management Reporting Persons
- ----------------------------
(a)-(c) J. Stephen Eaton is the President, Chairman of the Board and Chief
Executive Officer of the Company. Kent C. Fosha, Sr. is Executive Vice President
of Operations of the Company. Alan C. Dahl is Executive Vice President, Chief
Financial Officer and Treasurer of the Company. Lawrence W. Lepley is President
of Paragon Rehabilitation, Inc., an indirect wholly-owned subsidiary of the
Company. The business address of each of the Management Reporting Persons is 400
Perimeter Center Terrace, Suite 650, Atlanta, GA 30346.
(d) None of the Reporting Persons, nor, to the best of their knowledge, any
of the directors, executive officers, general partners or members referred to in
Item 2(a)-(c) has, during the last five years, been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) None of the Reporting Persons nor, to the best of their knowledge, any
of the directors, executive officers, general partners or members referred to
in Item 2(a)-(c) has, during the last five years, been a party to a civil
proceeding of a judicial
37 of 53
<PAGE>
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.
(f) Except as otherwise indicated on Schedules I-IV hereto, each of the
individuals referred to in Item 2(a)-(c) above is a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration.
Warburg Reporting Persons
- -------------------------
The total amount of funds required to purchase the Common Stock pursuant to
the Merger Agreement (as defined below) will be approximately $55,000,000, and
will be furnished from the working capital of the WP Funds and certain
affiliates of the South Atlantic Reporting Persons. No funds were required to
acquire beneficial ownership of the shares of Common Stock reported on this
Schedule 13D.
WCAS Reporting Persons
- ----------------------
As previously reported in filings with the Securities and Exchange
Commission by WCAS VI, WCAS CP II and WCAS HP, and as further described in Item
5 below, WCAS VI, WCAS CP II and WCAS HP currently beneficially own 2,520,193
(21.1%), 246,896 (2.2%) and 81,384 (0.7%) shares of Common Stock, respectively.
A majority of the shares of Common Stock held by WCAS VI, WCAS CP II and WCAS HP
were acquired from the Company upon conversion of securities of the Company
which were issued to such entities in connection with the December 31, 1995
merger (the "THS Merger")
38 of 53
<PAGE>
between a subsidiary of the Company and Transitional Health Services ("THS") in
respect of securities of THS which had been purchased with the working capital
of such entities. A portion of the shares of Common Stock held by WCAS VI, WCAS
CP II and WCAS HP were acquired from the Company upon conversion of securities
of the Company which had been purchased directly from the Company with the
working capital of such entities. The remainder of the shares of common Stock
held by WCAS VI, WCAS CP II and WCAS HP were acquired on January 31, 1997 from
Mr. Eaton for $12.18 per share with the working capital of such entities. No
additional shares of Common Stock have been acquired by any of such Reporting
Persons in connection with the Merger Agreement (as defined and further
described in Item 6 below).
Patrick J. Welsh, Russell L. Carson, Bruce K. Anderson, Andrew M. Paul,
Thomas E. McInerney, Robert A. Minicucci and Paul B. Queally acquired certain of
the shares of Common Stock owned by them in connection with the THS Merger and
the balance of such shares pursuant to distributions by the partnerships of
which they are general partners, except that Andrew M. Paul acquired 3,000
shares of Common Stock owned by him by purchases in the initial public offering
of the Company on July 1, 1997.
By virtue of the Voting Agreement (as defined and described in item 6
below), the Warburg Reporting Persons may be deemed to have shared voting power
over the shares of Common Stock held by the WCAS Reporting Persons.
39 of 53
<PAGE>
South Atlantic Reporting Persons
--------------------------------
As previously reported in filings with the Securities and Exchange
Commission by South Atlantic II, South Atlantic III and Burton LP, and as
further described in Item 5 below, South Atlantic II, South Atlantic III and
Burton LP currently beneficially own 798,963 (6.7%), 206,214 (1.7%) and 187,500
(1.6%) shares of Common Stock, respectively.
South Atlantic II acquired its shares in private transactions with the
Company and certain individual shareholders during the period from December 27,
1992 to January 31, 1997; South Atlantic III acquired its shares in private
transactions with the Company and certain individual shareholders during the
period from August 8, 1994 to January 31, 1997; and Burton LP acquired its
shares in the open market during the period from September 1998 to September
1999.
By virtue of the Voting Agreement, the Warburg Reporting Persons may be
deemed to have shared voting power over the shares of Common Stock held by the
South Atlantic Reporting Persons.
Management Reporting Persons
----------------------------
J. Stephen Eaton currently owns 1,115,371 shares of Common Stock (not
including 97,706 shares purchasable upon exercise of stock options that are
currently exercisable or will become exercisable within 60 days). These shares
were acquired as follows: Mr. Eaton was founder of the Company and acquired the
majority of his shares upon its initial capitalization; he purchased 7,066
shares in private sales for $8.49 per share in 1994; he acquired 76,632
shares upon exercise of options granted
40 of 53
<PAGE>
under the 1992 Stock Option Plan at $.2944 per share; he acquired an additional
5,000 shares for $16.00 per share in conjunction with the Company's initial
public offering; and he received shares as a result of a stock dividend in
connection with the THS Merger. No additional shares of Common Stock have been
acquired by such Reporting Person in connection with the Merger Agreement.
Kent C. Fosha, Sr. currently owns 8,970 shares of Common Stock (not
including 45,979 shares purchasable upon exercise of stock options that are
currently exercisable or will become exercisable within 60 days). These shares
were acquired as follows: 1,000 shares were acquired in the open market for
$3.75 per share; and 7,970 shares were acquired upon the exercise of options
granted under the Company's 1992 Stock Option Plan at an exercise price of
$.2944 per share. No additional shares of Common Stock have been acquired by
such Reporting Person in connection with the Merger Agreement.
Alan C. Dahl currently owns 92,792 shares of Common Stock (not including
34,484 shares purchasable upon exercise of stock options that are currently
exercisable or will become exercisable within 60 days). These shares were
acquired as follows: 2,000 shares were acquired in the initial public offering
for $16.00 per share; 2,000 shares were acquired in the open market for $20.125
per share; 12,000 shares were acquired in the open market for $3.75 per share;
1,300 shares were acquired in the open market for $4.062 per share; 20,000
shares were acquired in the
41 of 53
<PAGE>
open market for $3.938 per share; 11,495 shares were acquired upon the exercise
of options granted under the 1994 Stock Option Plan at an exercise price of
$7.83 per share; 38,316 shares were acquired upon the exercise of options
granted under the 1992 Stock Option Plan at an exercise price of $.2944 per
share; 4,056 shares were received as the result of a stock dividend in
connection with the THS Merger; and 1,625 shares were purchased in a private
sale for $8.49 per share in 1994. No additional shares of Common Stock have been
acquired by such Reporting Person in connection with the Merger Agreement.
Lawrence W. Lepley currently owns 83,225 shares of Common Stock (not
including 9,001 shares purchasable upon exercise of stock options that are
currently exercisable or will become exercisable within 60 days). All 83,225
shares were acquired from the Company upon conversion of securities in
connection with the THS Merger. No additional shares of Common Stock have been
acquired by such Reporting Person in connection with the Merger Agreement.
By virtue of the Voting Agreement, the Warburg Reporting Persons may be
deemed to have shared voting power over the shares of Common Stock held by the
Management Reporting Persons.
Item 4. Purpose of Transaction.
Except as set forth in Item 6 below, none of the Reporting Persons nor, to
the best of their knowledge, any person listed in Schedules I-IV hereto, has any
plans or proposals which relate to or would result in: (a) the acquisition by
any person of additional securities of the Company, or the disposition of
42 of 53
<PAGE>
securities of the Company; (b) an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving the Company or any of its
subsidiaries; (c) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries; (d) any change in the present Board of
Directors or management of the Company, including any plans or proposals to
change the number or term of directors or to fill any existing vacancies on the
board; (e) any material change in the present capitalization or dividend policy
of the Company; (f) any other material change in the Company's business or
corporate structure; (g) changes in the Company's charter, By-Laws or
instruments corresponding thereto or other actions which may impede the
acquisition of control of the Company by any person; (h) causing a class of
securities of the Company to be delisted from a national securities exchange or
to cease to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; (i) a class of equity securities of
the Company becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those
enumerated above.
Item 5. Interest in Securities of the Issuer.
Warburg Reporting Persons
- -------------------------
(a) As of February 25, 2000, the Warburg Reporting Persons may be deemed to
beneficially own 5,505,623 shares of Common Stock. By reason of their respective
relationships with WPEP, each of the Warburg Reporting Persons may be deemed
under Rule 13d-3 under the Exchange Act to own beneficially all of the shares of
Common Stock
43 of 53
<PAGE>
which WPEP beneficially owns. As of March 3, 2000, 5,505,623 shares of Common
Stock represented approximately 46% of the outstanding shares of Common Stock,
based on the 11,923,618 shares of Common Stock outstanding as of such date, as
represented by the Company to the Reporting Persons.
(b) Pursuant to the Voting Agreement, the Warburg Reporting Persons may be
deemed to have shared power to vote the Subject Shares (as defined in Item 6
below). None of the Warburg Reporting Persons has the power to dispose or to
direct the disposition with respect to any of the Subject Shares.
WCAS Reporting Persons
----------------------
See Item 3.
South Atlantic Reporting Persons
--------------------------------
See Item 3.
Management Reporting Persons
----------------------------
See Item 3
The Reporting Persons are making this single, joint filing because they may
be deemed to constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act. Each Reporting Person disclaims beneficial ownership of all shares
of Common Stock, other than those reported herein as being owned by it.
(c) Except as set forth above, no transactions in the Common Stock were
effected during the last sixty days by the Reporting Persons or, to the best of
their knowledge, by any of the persons set forth on Schedules I-IV hereto.
(d) Except as set forth in this Item 5, no person other than each
respective record owner referred to herein of securities is
44 of 53
<PAGE>
known to have the right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, such securities.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
On February 24, 2000, Parent entered into a Contribution and Subscription
Agreement (the "Subscription Agreement") with the WP Funds and WCAS VI, WCAS HP,
South Atlantic II, South Atlantic III, Burton LP, Patrick J. Welsh, Russell L.
Carson, Bruce K, Anderson, Andrew M. Paul, Thomas E. McInerney, Robert A.
Minicucci, Paul B. Queally, J. Stephen Eaton, Lawrence W. Lepley, Jr., Alan C.
Dahl and Kent C. Fosha, Sr. (collectively, the "Stockholders").
Pursuant to the Subscription Agreement, the WP Funds have agreed to
purchase an aggregate of 9,031,548 shares of Parent's Series A Convertible
Preferred Stock (the "Series A Preferred Stock") for a purchase price of $5.50
per share, or an aggregate purchase price of $49,673,514, and affiliates of the
South Atlantic Reporting Persons have agreed to purchase an aggregate of 909,091
shares of Parent's Series B Non-Voting Convertible Preferred Stock (the "Series
B Preferred Stock") for a purchase price of $5.50 per share, or an aggregate
purchase price of $5,000,000. The shares of Series A Preferred Stock will be
convertible into Voting Common Stock of Parent and the shares of Series B
Preferred Stock will be convertible into Non-Voting Common Stock of Parent. The
Non-Voting Common Stock will be convertible into shares of Voting Common Stock
(i) upon a sale or transfer of such Non-Voting Common Stock to any person
or entity other than the WCAS Reporting Persons or the South
45 of 53
<PAGE>
Atlantic Reporting Persons or any of their affiliates or (ii) if, after giving
effect to such conversion, such holder would not own shares of Voting Common
Stock (including any shares issuable upon conversion) representing 10% or more
of the Voting Common Stock and Series A Preferred Stock outstanding.
Also pursuant to the Subscription Agreement, certain of the Stockholders
have agreed to contribute an aggregate of 4,710,252 shares (the "Contribution
Shares") of Common Stock of the Company to Parent for shares of Series A
Preferred Stock or Series B Preferred Stock, on the terms set forth in the
Subscription Agreement. Based on the 11,923,618 shares of Common Stock
outstanding on March 3, 2000, as represented by the Company to the Reporting
Persons on such date, the Contribution Shares represent 39.5% of the outstanding
shares of the Company. As a result of the Subscription Agreement, the Warburg
Reporting Persons may be deemed to be the beneficial owners of the Contribution
Shares. The foregoing summary of the Subscription Agreement is qualified in its
entirety by reference to the Subscription Agreement, a copy of which is filed as
Exhibit 1 hereto and incorporated herein by reference.
On February 25, 2000, Parent, Merger Sub and the Company entered into an
Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which Parent
will acquire all outstanding shares of the Company for $5.50 per share. In
accordance with the Merger Agreement, Merger Sub will commence a tender offer
(the "Offer") to acquire all outstanding shares of Common Stock for a price in
cash of $5.50 per shares. Assuming the Offer is
46 of 53
<PAGE>
consummated in accordance with its terms, Merger Sub would then merge with and
into the Company (the "Merger"), and each share not previously tendered in the
Offer or contributed under the Subscription Agreement (other than shares as to
which dissenter's rights have been perfected) will be converted into the right
to receive $5.50 per share. Upon consummation of the Merger, all of the equity
securities of the Company will be owned by Parent, and the Company will no
longer be a reporting company under Section 12 of the Exchange Act, nor will any
of its equity securities trade in any public market. The foregoing summary of
the Merger Agreement is qualified in its entirety by reference to the Merger
Agreement, a copy of which is filed as Exhibit 2 hereto and incorporated herein
by reference.
In connection with the Merger Agreement, Parent, Merger Sub, the
Stockholders and WCAS CP II entered into a Voting Agreement, dated as of
February 25, 2000 (the "Voting Agreement"), pursuant to which, among other
things, the Stockholders and WCAS CP II agreed (i) to vote all shares
beneficially owned by them (the "Subject Shares") in favor of the Merger
Agreement and the Merger and against any Takeover Proposal (as defined in the
Voting Agreement) and any other proposal for action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement, (ii) to waive
any appraisal rights such holders may have in connection with the Merger,
(iii) not to solicit or initiate, or encourage, directly or indirectly, any
inquiries regarding the submission of any Takeover Proposal, (iv) not to
participate in any
47 of 53
<PAGE>
discussions or negotiations regarding, or furnish to any person any information
or data with respect to, or take any other action to knowingly facilitate the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Takeover Proposal, (v) not to enter into any agreement with respect to
any Takeover Proposal or approve or resolve to approve any Takeover Proposal,
(vi) not to transfer the shares of Common Stock owned by them, (vii) to
constitute and appoint Parent and Merger Sub as their true and lawful proxies in
connection with the Merger and the Merger Agreement and (viii) not to tender any
shares owned by them pursuant to the Offer. The Voting Agreement terminates upon
the termination of The Merger Agreement or the effective time of the Merger.
Based on the 11,923,618 shares of Common Stock outstanding on March 3, 2000, as
represented by the Company to the Reporting Persons on such date, the Subject
Shares in the aggregate represent approximately 46% of the outstanding shares of
Common Stock. As a result of the Voting Agreement, the Warburg Reporting Persons
may be deemed to beneficially own the Subject Shares. The foregoing summary of
the Voting Agreement is qualified in its entirety by reference to the Voting
Agreement, a copy of which is filed as Exhibit 3 hereto and incorporated herein
by reference.
Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the Reporting
Persons have also entered into the Joint Filing Agreement.
Except as referred to above, there are no contracts, arrangements,
understandings or relationships among the persons named in Item 2 or between
such persons and any other person with respect to any securities of the Company.
Item 7. Material to be Filed as Exhibits.
1. Subscription and Contribution Agreement, dated February 24, 2000, by and
among Parent and Stockholders of the Company.
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<PAGE>
2. Agreement and Plan of Merger Agreement, dated as of February 25, 2000,
by and among the Company, Parent and Merger Sub.
3. Voting Agreement, dated as of February 25, 2000, by and among Parent,
WCAS CP II and the Stockholders.
4. Joint Filing Agreement, dated as of March 6, 2000, by and among the
Reporting Persons.
5. Power of Attorney from Kent C. Fosha, Sr., Alan C. Dahl and Lawrence W.
Lepley to J. Stephen Eaton and Daryl Griswold, dated March 6, 2000.
49 of 53
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: March 6, 2000 WARBURG, PINCUS EQUITY
PARTNERS, L.P.
By: Warburg, Pincus & Co.,
General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
WARBURG, PINCUS & CO.
By: /s/ Joel Ackerman
------------------------------
Managing Director
E.M. WARBURG, PINCUS & CO., LLC
By: Warburg, Pincus &
Co., General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
WARBURG, PINCUS
NETHERLANDS EQUITY
PARTNERS I, C.V.
By: Warburg, Pincus &
Co., General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
<PAGE>
WARBURG, PINCUS
NETHERLANDS EQUITY
PARTNERS II, C.V.
By: Warburg, Pincus &
Co., General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
WARBURG, PINCUS
NETHERLANDS EQUITY
PARTNERS III, C.V.
By: Warburg, Pincus &
Co., General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
HILLTOPPER HOLDING CORP.
By: /s/ David Wenstrup
------------------------------
Vice President
HILLTOPPER ACQUISITION CORP.
By: /s/ David Wenstrup
------------------------------
Vice President
WELSH, CARSON, ANDERSON &
STOWE VI, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
<PAGE>
WCAS CAPITAL PARTNERS II, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
WCAS VI PARTNERS, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
WCAS CP II PARTNERS
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
WCAS HP PARTNERS, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
<PAGE>
SOUTH ATLANTIC VENTURE FUND II,
LIMITED PARTNERSHIP
By: South Atlantic Venture Partners II,
Limited Partnership,
General Partner
By: /s/ Donald W. Burton
------------------------------
Partner
SOUTH ATLANTIC VENTURE FUND III,
LIMITED PARTNERSHIP
By: South Atlantic Venture Partners III,
Limited Partnership,
General Partner
By: /s/ Donald W. Burton
------------------------------
Partner
THE BURTON PARTNERSHIP,
LIMITED PARTNERSHIP
By: /s/ Donald W. Burton
------------------------------
Partner
<PAGE>
/s/ J. Stephen Eaton
------------------------------
J. Stephen Eaton
/s/ Lawrence W. Lepley, Jr.
------------------------------
Lawrence W. Lepley, Jr.
/s/ Alan C. Dahl
------------------------------
Alan C. Dahl
/s/ Kent C. Fosha, Sr.
------------------------------
Kent C. Fosha, Sr.
Patrick J. Welsh
Russell L. Carson
Bruce K. Anderson
Andrew M. Paul
Thomas E. McInerney
Robert A. Minicucci
Paul B. Queally
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
<PAGE>
SCHEDULE I
Set forth below is the name, position and present principal occupation of
each of the general partners of WP and members of EMW. WP is the sole general
partner of WPEP, WPVI, WPNEPI, WPNEPII and WPNEPIII. Except as otherwise
indicated, the business address of each of such persons is 466 Lexington Avenue,
New York, New York 10017, and each of such persons is a citizen of the United
States.
GENERAL PARTNERS OF WP
- ----------------------------------- --------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH WP, AND POSITIONS
NAME WITH THE REPORTING ENTITIES
- ----------------------------------- --------------------------------------------
Joel Ackerman Partner of WP; Member and Managing Director
of EMW; President, Treasurer and Director
of Parent, President, Treasurer and
Director of Merger Sub
- ----------------------------------- --------------------------------------------
Harold Brown Partner of WP; Member and Senior Managing
Director of EMW
- ----------------------------------- --------------------------------------------
W. Bowman Cutter Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Cary J. Davis Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Stephen Distler Partner of WP; Member, Managing Director
and Treasurer of EMW
- ----------------------------------- --------------------------------------------
Stewart K. P. Gross Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Patrick T. Hackett Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Jeffrey A. Harris Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
William H. Janeway Partner of WP; Member and Senior Managing
Director of EMW
- ----------------------------------- --------------------------------------------
Douglas M. Karp Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Charles R. Kaye Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
S-1
<PAGE>
- ----------------------------------- --------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH WP, AND POSITIONS
NAME WITH THE REPORTING ENTITIES
- ----------------------------------- --------------------------------------------
Henry Kressel Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Joseph P. Landy Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Sidney Lapidus Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Kewsong Lee Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Jonathan S. Leff Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Reuben S. Leibowitz Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
David E. Libowitz Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Nancy Martin Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Edward J. McKinley Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Rodman W. Moorhead II Partner of WP; Member and Senior Managing
Director of EMW
- ----------------------------------- --------------------------------------------
Howard H. Newman Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Gary D. Nusbaum Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Dalip Pathak Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Lionel I. Pincus Managing Partner of WP; Managing Member,
Chairman of the Board and Chief Executive
Officer of EMW
- ----------------------------------- --------------------------------------------
John D. Santoleri Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
S-2
<PAGE>
- ----------------------------------- --------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH WP, AND POSITIONS
NAME WITH THE REPORTING ENTITIES
- ----------------------------------- --------------------------------------------
Henry B. Schact Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Steven G. Schneider Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
James E. Thomas Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
John L. Vogelstein Partner of WP; Member and Vice Chairman of
EMW
- ----------------------------------- --------------------------------------------
Elizabeth H. Weatherman Partner of WP; Member and Managing Director
of EMW
- ----------------------------------- --------------------------------------------
Pincus & Co.*
- ----------------------------------- --------------------------------------------
NL & Co.**
- ----------------------------------- --------------------------------------------
- ---------------------
* New York limited partnership; primary activity is ownership interest in WP and
EMW.
** New York limited partnership; primary activity is ownership interest in WP.
As of 12/14/99
S-3
<PAGE>
MEMBERS OF EMW
--------------
- ---------------------------- ---------------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH EMW AND POSITIONS
WITH THE REPORTING ENTITIES
NAME
- ---------------------------- ---------------------------------------------------
Joel Ackerman Member and Managing Director of EMW;
Partner of WP; President, Treasurer and Director
of Parent; President, Treasurer and Director of
Merger Sub
- ---------------------------- ---------------------------------------------------
Frank M. Brochin (3) Member and Managing Director of EMW
- ---------------------------- ---------------------------------------------------
Harold Brown Member and Senior Managing Director of EMW
LLC; Partner of WP
- ---------------------------- ---------------------------------------------------
W. Bowman Cutter Member and Managing Director of EMW;
Partner of WP
- ---------------------------- ---------------------------------------------------
Cary J. Davis Member and Managing Director of EMW;
Partner of WP
- ---------------------------- ---------------------------------------------------
Stephen Distler Member, Managing Director, and Treasurer of
EMW; Partner of WP
- ---------------------------- ---------------------------------------------------
Tetsuya Fukagawa (5) Member and Managing Director of EMW
- ---------------------------- ---------------------------------------------------
Stewart K. P. Gross Member and Managing Director of EMW;
Partner of WP
- ---------------------------- ---------------------------------------------------
Patrick T. Hackett Member and Managing Director of EMW;
Partner of WP
- ---------------------------- ---------------------------------------------------
Jeffrey A. Harris Member and Managing Director of EMW;
Partner of WP
- ---------------------------- ---------------------------------------------------
Roberto Italia (6) Member and Managing Director of EMW
- ---------------------------- ---------------------------------------------------
William H. Janeway Member and Senior Managing Director of EMW
LLC; Partner of WP
- ---------------------------- ---------------------------------------------------
S-4
<PAGE>
- ---------------------------- ---------------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH EMW AND POSITIONS
WITH THE REPORTING ENTITIES
NAME
- ---------------------------- ---------------------------------------------------
Douglas M. Karp Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Charles R. Kaye Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Henry Kressel Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Rajiv B. Lall (1) Member and Managing Director of EMW
- --------------------------- ----------------------------------------------------
Joseph P. Landy Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Sidney Lapidus Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Jonathan S. Leff Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Kewsong Lee Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Reuben S. Leibowitz Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
David E. Libowitz Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Nicholas J. Lowcock (3) Member and Managing Director of EMW
- --------------------------- ----------------------------------------------------
John W. MacIntosh (2) Member and Managing Director of EMW
- --------------------------- ----------------------------------------------------
Nancy Martin Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Edward J. McKinley Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
James McNaught-Davis (3) Member and Managing Director of EMW
- --------------------------- ----------------------------------------------------
S-5
<PAGE>
- ---------------------------- ---------------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH EMW AND POSITIONS
WITH THE REPORTING ENTITIES
NAME
- --------------------------- ----------------------------------------------------
Rodman W. Moorhead III Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Howard H. Newman Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Gary D. Nusbaum Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Dalip Pathak Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Lionel I. Pincus Managing Member, Chairman of the Board and
Chief Executive of EMW; Managing
Partner of WP
- --------------------------- ----------------------------------------------------
John D. Santoleri Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Henry B. Schact Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Steven G. Schneider Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Dominic H. Shorthouse Member and Managing Director of EMW
(3)
- --------------------------- ----------------------------------------------------
Chang Q. Sun (4) Member and Managing Director of EMW
- --------------------------- ----------------------------------------------------
James E. Thomas Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
John L. Vogelstein Member and Vice Chairman of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
Elizabeth H. Weatherman Member and Managing Director of EMW;
Partner of WP
- --------------------------- ----------------------------------------------------
S-6
<PAGE>
- ---------------------------- ---------------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH EMW AND POSITIONS
WITH THE REPORTING ENTITIES
NAME
- --------------------------- ----------------------------------------------------
Jeremy S. Young (3) Member and Managing Director of EMW
- --------------------------- ----------------------------------------------------
Pincus & Co.*
- --------------------------- ----------------------------------------------------
- ---------------------
(1) - Citizen of India
(2) - Citizen of Canada
(3) - Citizen of United Kingdom
(4) - Citizen of China
(5) - Citizen of Japan
(6) - Citizen of Italy
* New York limited partnership; primary activity is ownership interest in
WP and EMW
S-7
<PAGE>
SCHEDULE II
-----------
Directors and Executive Officers of Parent and Merger Sub
---------------------------------------------------------
OFFICERS AND DIRECTORS OF HILLTOPPER HOLDING CORP.
--------------------------------------------------
- --------------------------- ----------------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH PARENT, AND POSITIONS
NAME WITH THE REPORTING ENTITIES
- --------------------------- ----------------------------------------------------
Joel Ackerman President, Treasurer and
Director of Parent; President,
Treasurer and Director of Merger
Sub; Member and Managing Director
of EMW; Partner of WP.
- --------------------------- ----------------------------------------------------
David Wenstrup Vice President, Secretary
and Director of Parent; Vice
President, Secretary and Director
of Merger Sub; Vice President of
EMW.
- --------------------------- ----------------------------------------------------
OFFICERS AND DIRECTORS OF HILLTOPPER ACQUISITION CORP.
------------------------------------------------------
- --------------------------- ----------------------------------------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH MERGER SUB, AND POSITIONS
NAME WITH THE REPORTING ENTITIES
- --------------------------- ----------------------------------------------------
Joel Ackerman President, Treasurer and
Director of Merger Sub; President,
Treasurer and Director of Parent;
Member and Managing Director of
EMW; Partner of WP.
- --------------------------- ----------------------------------------------------
David Wenstrup Vice President, Secretary
and Director of Merger Sub; Vice
President, Secretary and Director
of Parent; Vice President of EMW.
- --------------------------- ----------------------------------------------------
S-8
<PAGE>
SCHEDULE III
General Partners and Managing Members of HP Partners, VI Partners
and CP II Partners
- --------------------------------------------------------------------------------
General Partners/
Managing Members Address Occupation
- ---------------- ------- ----------
Patrick J. Welsh Welsh, Carson, Anderson General Partner or
& Stowe Managing Member,
320 Park Avenue VI Partners, CP II
Suite 2500 Partners, HP
New York, NY 10022 Partners and
affiliated entities
Russell L. Carson Welsh, Carson, Anderson General Partner or
& Stowe Managing Member,
320 Park Avenue VI Partners, CP II
Suite 2500 Partners, HP
New York, NY 10022 Partners and
affiliated entities
Bruce K. Anderson Welsh, Carson, Anderson General Partner or
& Stowe Managing Member,
320 Park Avenue VI Partners,
Suite 2500 CP II Partners and
New York, NY 10022 affiliated entities
Richard H. Stowe Welsh, Carson, Anderson General Partner or
& Stowe Managing Member,
320 Park Avenue VI Partners,
Suite 2500 CP II Partners and
New York, NY 10022 affiliated entities
James B. Hoover Dauphin Capital Partners Private Equity Fund
108 Forest Avenue Manager; General
Locust Valley, NY 11560 Partner or Managing
Member,CP II Partners
and affiliated entities
Charles G. Moore, III The Woodman Building Private Investor or
75 Pearl Street Managing Member;
Suite 209 General Partner, CP II
Portland, ME 04101 Partners and
affiliated entities
S-9
<PAGE>
Andrew M. Paul Welsh, Carson, Anderson General Partner or
& Stowe Managing Member,
320 Park Avenue VI Partners, CP II
Suite 2500 Partners and affiliated
New York, NY 10022 entities
Thomas E. McInerney Welsh, Carson, Anderson General Partner or
& Stowe Managing Member,
320 Park Avenue VI Partners, CP II
Suite 2500 Partners and affiliated
New York, NY 10022 entities
Laura VanBuren Welsh, Carson, Anderson General Partner or
& Stowe Managing Member,
320 Park Avenue VI Partners and CP II
Suite 2500 Partners and affiliated
New York, NY 10022 entities
Robert A. Minicucci Welsh, Carson, Anderson General Partner or
& Stowe Managing Member,
320 Park Avenue VI Partners, CP II
Suite 2500 Partners and affiliated
New York, NY 10022 entities
Anthony J. deNicola Welsh, Carson, Anderson General Partners or
& Stowe Managing Member,
320 Park Avenue CP II Partners, VI
Suite 2500 Partners and affiliated
New York, NY 10022 entities
Paul B. Queally Welsh, Carson, Anderson General Partner,
& Stowe VI Partners and
320 Park Avenue affiliated entities
Suite 2500
New York, NY 10022
S-10
<PAGE>
SCHEDULE IV
General Partners of South Atlantic II,
South Atlantic III and Burton LP
- --------------------------------------------------------------------------------
General Partners/ Address Occupation
Managing Members --------- ------------
- ----------------
Donald W. Burton 614 West Bay Street Managing General Partner, South
Tampa, FL 33606 Atlantic II, South Atlantic III
and Burton LP
Sandra P. Barber 614 West Bay Street General Partner, South Atlantic
Tampa, FL 33606 II and South Atlantic III
S-11
<PAGE>
EXHIBIT 1
EXECUTION COPY
HILLTOPPER HOLDING CORP.
SUBSCRIPTION AND CONTRIBUTION AGREEMENT
February 24, 2000
To the Investors whose
names and addresses are set
forth on Schedules I and II hereto
Gentlemen:
This letter is being written for the purpose of setting forth the
understandings between Hilltopper Holding Corp., a Delaware corporation (the
"Company"), and each of the Investors whose names and addresses are set forth on
Schedule I or Schedule II hereto (each, an "Investor" and collectively, the
"Investors") in connection with the purchase by the Investors and sale by the
Company of shares of its Series A Convertible Preferred Stock, par value $0.01
per share (the "Series A Preferred Stock"), and its Series B Convertible
Preferred Stock, par value $0.01 per share (the "Series B Preferred Stock" and,
together with the Series A Preferred Stock, the "Preferred Stock") as set forth
below.
If you are in agreement with the terms and conditions set forth herein,
please sign the last page of one copy of this letter and return it to us,
whereupon this letter shall represent a legally binding agreement between us and
shall supersede any prior agreement between you and the Company or any third
party as regards the sale and purchase of stock of the Company. Please keep the
other copy of this letter for your files.
1. AUTHORIZATION OF CAPITAL STOCK. The Company will prior to the Closing
Date (as herein defined) authorize the creation of (i) 20,000,000 shares of
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"),
(ii) 5,000,000 shares of Class B Common Stock, par value $0.01 per share (the
"Class B Common Stock" and, together with the Class A Common Stock, the "Common
Stock"), (iii) 15,000,000 shares of Series A Preferred Stock and (iv) 5,000,000
shares of Series B Preferred Stock. The terms, limitations and relative rights
and preferences of the Preferred Stock are set forth in the Amended and Restated
Certificate of Incorporation (the "Amended and Restated Certificate"),
substantially in the form in which it will be in effect on the Closing Date,
attached hereto as Exhibit A.
<PAGE>
2. PURCHASE AND SALE OF SHARES.
---------------------------
(a) Subject to the terms and conditions hereof, on the Closing Date, the
Company shall issue to each Investor whose name and address is set forth on
Schedule I hereto (the "Cash Investors") and each Cash Investor shall purchase
from the Company, the number of shares (as herein defined) set forth opposite
its name on Schedule I hereto, for the amount per share in cash set forth on
Schedule I hereto.
(b) Subject to the terms and conditions hereof, on the Closing Date the
Company shall issue to each Investor whose name and address is set forth on
Schedule II hereto (the "Exchange Investors") and each Exchange Investor shall
purchase from the Company, the number of Shares set forth opposite its name on
Schedule II hereto, in exchange for the number of shares of Common Stock, par
value $.01 per share ("Target Common Stock"), of Centennial HealthCare
Corporation, a Georgia corporation ("Target"), set forth on Schedule II hereto
(the "Exchange Shares"). The value per share of such shares of Target Common
Stock transferred by each Exchange Investor to the Company is set forth opposite
its name on Schedule II hereto.
(c) The issuances and sales referred to in Sections 2(a) and 2(b) hereof
shall be effected by the Company executing and delivering to each Investor duly
executed certificates evidencing the Shares to be subscribed by such Investor,
duly registered in such Investor's name against delivery by such Investor to the
Company of the consideration set forth opposite such Investor's name on Schedule
I or II. Any cash payment shall be made by wire transfer.
(d) The closing of the sale (the "Closing") shall take place one business
day after the date on which Hilltopper Acquisition Corp. ("Merger Sub"), a
wholly owned subsidiary of the Company, shall have accepted for payment the
shares of Target Common Stock tendered in the Offer (as defined in the Agreement
and Plan of Merger to be entered into after the date hereof by and among the
Company, Merger Sub and Target (the "Merger Agreement")), and has deposited with
the depositary funds sufficient to purchase such shares of Target Common Stock.
The date of the closing is herein referred to as the "Closing Date."
(e) On the Closing Date, the Company shall deliver to each Investor such
officers' certificates, good standing certificates and instruments as shall be
reasonably requested relating to the transactions contemplated hereby.
(f) In order to facilitate the contribution of the Exchange Shares by the
Exchange Investors, each Exchange Investor shall deliver within ten business
days of the date hereof one or more certificates representing all of the
Exchange Shares to be contributed by such Exchange Investor to the Company,
together with stock powers or other instruments duly endorsed or otherwise
-2-
<PAGE>
sufficient for transfer (the "Exchange Instruments"). The Company shall hold the
Exchange Instruments in escrow pending the Closing Date. On the Closing Date,
the Company is authorized to present the Exchange Instruments to the transfer
agent for Target and instruct the transfer agent to register the Exchange Shares
in the name of the Company or its designee.
(g) Each Investor agrees for US federal income tax purposes to treat its
purchase of Preferred Stock as described herein as a transaction described in
Section 351(a) of the Internal Revenue Code of 1986, as amended.
3. RESTRICTIONS ON STOCK. None of the Shares (including any shares received
as a result of dividends, splits or any other forms of recapitalization in
respect of such Shares) shall be Transferred (as hereinafter defined), either
voluntarily or involuntarily, directly or indirectly, except (i) pursuant to an
effective registration under the Securities Act (as hereinafter defined), or in
a transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Securities Act and the
rules and regulations promulgated thereunder and (ii) in accordance with the
terms of the Stockholders Agreement, dated as of the Closing Date, by and among
the Company and the Investors (as the same may be amended from time to time, the
"Stockholders Agreement"), such agreement to be substantially in the form
attached hereto as Exhibit B.
4. WARRANTIES AND REPRESENTATIONS OF THE COMPANY
---------------------------------------------
The Company represents and warrants that:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Attached hereto as
Exhibits C and D, respectively, are true and complete copies of the Certificate
of Incorporation and the Bylaws of the Company as in effect on the date hereof.
(b) The Company has been recently formed to enter into the Merger Agreement
and to consummate the transactions contemplated thereby and has not conducted
any business other than in connection therewith and certain start-up activities.
As of the Closing Date, the Company will have no assets or liabilities other
than those incurred in connection with the Company's incorporation and the
Company's start-up activities, and those acquired or assumed pursuant to the
Merger Agreement and those acquired or incurred in connection with the
transactions contemplated thereby.
(c) The execution, delivery and performance by the Company of this
Agreement and the Merger Agreement and the consummation of the transactions
contemplated hereby and thereby are within the corporate powers of the Company.
The Board of Directors of the Company (the "Board") has authorized the
-3-
<PAGE>
execution, delivery, and performance of this Agreement and the Merger Agreement,
and each of the transactions contemplated hereby and thereby. No other corporate
action is necessary to authorize such execution, delivery and performance, and
upon such execution and delivery, each of this Agreement and the Merger
Agreement shall constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. The Board has
authorized the issuance and delivery of the Shares in accordance with this
Agreement.
(d) The Shares to be issued and sold by the Company pursuant to this
Agreement, when issued in accordance with the provisions hereof, will be validly
issued by the Company, fully paid and nonassessable shares of the Company, upon
delivery thereof, the Investors will acquire good title to the Shares, free and
clear of any lien or claim of any kind, other than as contemplated by this
Agreement and the Stockholders Agreement or any liens incurred by the Investors,
and no stockholder of the Company has any preemptive rights to subscribe for any
such Shares. The shares of Common Stock issuable upon conversion of the Shares
will be, when issued in accordance with the terms of the Amended and Restated
Certificate, validly issued by the Company, fully paid and nonassessable shares
of the Company, upon delivery thereof, the Investors will acquire good title to
the shares of Common Stock, free and clear of any lien or claim of any kind,
other than as contemplated by this Agreement and the Stockholders Agreement or
any liens incurred by the Investors, and no stockholder of the Company will have
any preemptive rights to subscribe for any such shares.
(e) Except for the filing of the Amended and Restated Certificate with the
Secretary of State of the State of Delaware and for filings by the Investors, if
any, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, the
creation, authorization, issuance, offer and sale of the Shares do not require
any consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of the Company or the
vote, consent or approval in any manner of the holders of any Security (as
hereinafter defined) of the Company as a condition to the execution and delivery
of this Agreement or the creation, authorization, issuance, offer and sale of
the Shares. The execution and delivery by the Company of this Agreement and the
Merger Agreement and the performance by the Company of its obligations hereunder
and thereunder will not violate (i) the terms and conditions of the Certificate
of Incorporation or the Bylaws of the Company, or any agreement or instrument to
which the Company is a party or by which it is bound or (ii) subject to the
accuracy of the Investors' representations and warranties contained in Section 5
hereof, any federal or state law.
(f) Immediately prior to the Closing, the outstanding capital stock of the
Company will consist of one share of Common Stock. Immediately after the
Closing, the outstanding capital
-4-
<PAGE>
stock of the Company will consist of one share of Common Stock and the Shares.
Except as set forth in this Section 4(f) or the Amended and Restated Certificate
and except for options to be made available to the management of the Company
there are, and immediately after the Closing there will be, no outstanding (i)
shares of capital stock or voting securities of the Company, (ii) securities of
the Company convertible into or exchangeable for shares of capital stock or
voting securities of the Company, (iii) options or other rights to acquire from
the Company, or other obligations of the Company to issue any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of the Company or (iv) obligations of the Company to
repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in clause (i),
(ii), or (iii).
(g) Other than this Agreement, the Merger Agreement, the Stockholders
Agreement and the Registration Rights Agreement, no agreement or other
arrangement regarding any class of capital stock of the Company exists between
the Company, or any of its affiliates and any Person. The Company is not a party
to, has not agreed to be a party to, and does not plan to become a party to any
agreement or arrangement with any affiliate, stockholder or other person or
entity who will become a stockholder of the Company in connection with the
transactions contemplated by the Merger Agreement and this Agreement, which has
not been disclosed to each Investor.
(h) There is no investment banker, broker or finder which has been retained
by, will be retained by or is authorized to act on behalf of the Company who
will be entitled to any fee or commission from the Target or the Company upon
consummation of the transactions contemplated by this Agreement.
(i) Neither Company, Merger Sub nor any executive officer or director of
Company or Merger Sub has acquired any shares of Target Common Stock (or any
security exchangeable for or convertible into such shares) since January 30,
1998 at a price in excess of the Per Share Amount (as defined in the Merger
Agreement.
5. INVESTOR REPRESENTATIONS
------------------------
Each Investor severally (and not jointly) represents and warrants that:
(a) Offering Exemption. The Investor understands that the Shares and the
shares of Common Stock issuable upon conversion of the Shares have not been
registered under the Securities Act, nor qualified under any state securities
laws, and that they are being offered and sold pursuant to an exemption from
such registration and qualification based in part upon such Investor's
representations contained herein.
-5-
<PAGE>
(b) Knowledge of Offer. The Investor is familiar with the business and
operations of the Company and has been given the opportunity to obtain from the
Company all information that such Investor has requested regarding its business
plans and prospects.
(c) Knowledge and Experience; Ability to Bear Economic Risks. The Investor
has such knowledge and experience in financial and business matters that the
Investor is capable of evaluating the merits and risks of the investment
contemplated by this Agreement; and the Investor is able to bear the economic
risk of this investment in the Company (including a complete loss of this
investment).
(d) Limitations on Disposition. The Investor recognizes that no public
market exists for the Shares, and none will exist in the future (other than as
set forth in the Registration Rights Agreement). The Investor understands that
the Investor must bear the economic risk of this investment indefinitely unless
the Shares are registered pursuant to the Securities Act or an exemption from
such registration is available, and unless the disposition of such Shares is
qualified under applicable state securities laws or an exemption from such
qualification is available, and that the Company has no obligation or present
intention of so registering the Shares (other than as set forth in the
Registration Rights Agreement). The Investor further understands that there is
no assurance that any exemption from the Securities Act will be available, or,
if available, that such exemption will allow the Investor to Transfer any or all
the Shares, in the amounts, or at the times the Investor might propose. The
Investor understands at the present time Rule 144 promulgated under the
Securities Act by the SEC ("Rule 144") is not applicable to sales of the Shares
because they are not registered under Section 12 of the Exchange Act (as herein
defined) and there is not publicly available the information concerning the
Company specified in Rule 144. The Investor further acknowledges that the
Company is not presently under any obligation to register under Section 12 of
the Exchange Act or to make publicly available the information specified in Rule
144 and that it may never be required to do so. The Investor further
acknowledges the restrictions on disposition and other terms set forth in the
Stockholders Agreement.
(e) Investment Purpose. The Investor is acquiring the Shares solely for its
own account for investment and not with a view toward the resale, Transfer, or
distribution thereof, nor with any present intention of distributing the Shares.
No other Person (as hereinafter defined) has any right with respect to or
interest in the Shares to be purchased by the Investor, nor has the Investor
agreed to give any Person any such interest or right in the future.
-6-
<PAGE>
(f) Capacity. The Investor has full power and legal right to execute and
deliver this Agreement and to perform its obligations hereunder.
(g) Previous Acquisitions of Target Shares. Neither Warburg nor any
Investor who is an executive officer of Target has acquired any shares of Target
Common Stock (or any security exchangeable for or convertible into such shares)
since January 30, 1998 at a price in excess of the Per Share Amount (as defined
in the Merger Agreement).
(h) Exchange Shares. Each Exchange Investor represents that it is the sole
beneficial owner of its Exchange Shares, free and clear of any pledge, lien,
security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind, other than restrictions imposed by the securities laws
or pursuant to this Agreement, the Voting Agreement (as defined in the Merger
Agreement) and the Merger Agreement.
The Investor understands and acknowledges that, following the effective
time of the merger contemplated by the Merger Agreement, the Target shall pay,
or, to the extent previously paid, reimburse the Company, Merger Sub or Warburg,
Pincus Equity Partners, L.P. ("Warburg"), as applicable, for, all fees, costs
and expenses incurred by the Company, Merger Sub and Warburg in connection with
the Merger Agreement and the transactions contemplated by the Merger Agreement.
6. COVENANTS
---------
(a) Financial and Business Information
From and after the date hereof, the Company shall deliver to each of the
Investors so long as such Investor owns beneficially (within the meaning of Rule
13d-3 under the Exchange Act) any shares of Common Stock:
(i) Monthly and Quarterly Statements -as soon as practicable, and in any
event within 30 days after the close of each month of each fiscal year
of the Company in the case of monthly statements and 45 days after the
close of each of the first three fiscal quarters of each fiscal year
of the Company in the case of quarterly statements, a consolidated
balance sheet, statement of income and statement of cash flows of the
Company and any subsidiaries as at the close of such month or quarter
and covering operations for such month or quarter, as the case may be,
and the portion of the Company's fiscal year ending on the last day
-7-
<PAGE>
of such month or quarter, all in reasonable detail and prepared in
accordance with GAAP, subject to audit and year-end adjustments,
setting forth in each case in comparative form the figures for the
comparable period of the previous fiscal year.
(ii) Annual Statements - as soon as practicable after the end of each
fiscal year of the Company, and in any event within 90 days
thereafter, duplicate copies of:
(a) consolidated and consolidating balance sheets of the Company
and any subsidiaries at the end of such year; and
(b) consolidated and consolidating statements of income,
stockholders' equity and cash flows of the Company and any
subsidiaries for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable
detail and accompanied by an opinion thereon of independent certified
public accountants of recognized national standing selected by the
Company, which opinion shall state that such financial statements
fairly present the financial position of the Company and any
subsidiaries on a consolidated basis and have been prepared in
accordance with GAAP (except for changes in application in which such
accountants concur) and that the examination of such accountants in
connection with such financial statements has been made in accordance
with generally accepted auditing standards, and accordingly included
such tests of the accounting records and such other auditing
procedures as were considered necessary in the circumstances.
(iii) Business Plan; Projections - no later than 30 days prior to the
commencement of each fiscal year of the Company, an annual business
plan of the Company and projections of operating results, prepared on
a monthly basis, and a three year business plan of the Company and
projections of operating results. Within 45 days of the close of each
semi-annual fiscal period of the Company, the Company shall provide
the Investors with an update of such monthly projections. Such
business plans, projections and updates shall contain such substance
and detail and shall be in such form as will be reasonably acceptable
to the Investors.
-8-
<PAGE>
(iv) Audit Reports - promptly upon receipt thereof, one copy of each other
financial report and internal control letter submitted to the Company
by independent accountants in connection with any annual, interim or
special audit made by them of the books of the Company.
(v) Other Reports - promptly upon their becoming available, one copy of
each financial statement, report, notice or proxy statement sent by
the Company to stockholders generally, of each financial statement,
report, notice or proxy statement sent by the Company or any of its
subsidiaries to the SEC, if applicable, of each regular or periodic
report and any registration statement, prospectus or written
communication (other than transmittal letters) in respect thereof
filed by the Company or any subsidiary with, or received by such
Person in connection therewith from, any domestic or foreign
securities exchange, the SEC or any foreign regulatory authority
performing functions similar to the SEC, of any press release issued
by the Company or any subsidiary, and of any material of any nature
whatsoever prepared by the SEC or any state blue sky or securities law
commission which relates to or affects in any way the Company or any
subsidiary.
(vi) Progress Report - promptly following each regularly scheduled meeting
of the Board, a narrative report shall be delivered to each of the
Investors describing the Company's activities since the date of the
last such report, including a description of business development,
operating results and marketing efforts.
(vii) Requested Information - with reasonable promptness, the Company shall
furnish each of the Investors with such other data and information as
from time to time may be reasonably requested.
(b) Inspection
-9-
<PAGE>
As long as an Investor owns beneficially (within the meaning of Rule 13d-3
under the Exchange Act) at least five percent (5%) of the outstanding Common
Stock, the Company shall permit such Investor, its nominee, assignee, and its
representative to visit and inspect any of the properties of the Company and its
subsidiaries, to examine all its and its subsidiaries books of account, records,
reports and other papers not contractually required of the Company to be
confidential or secret, to make copies and extracts therefrom, and to discuss
its and its subsidiaries affairs, finances and accounts with its and its
subsidiaries officers, directors, key employees and independent public
accountants or any of them (and by this provision the Company authorizes said
accountants to discuss with such Investor, its nominees, assignees and
representatives the finances and affairs of the Company and any subsidiaries),
all at such reasonable times and as often as may be reasonably requested.
(c) Confidentiality
As to so much of the information and other material furnished under or in
connection with this Agreement (whether furnished before, on or after the date
hereof, including without limitation information furnished pursuant to Sections
6(a) and 6 (b) hereof) as constitutes or contains confidential business,
financial or other information of the Company or any subsidiary, each of the
Investors covenants for itself and its directors, officers and partners that it
will use due care to prevent its officers, directors, partners, employees,
counsel, accountants and other representatives from disclosing such information
to Persons other than their respective authorized employees, counsel,
accountants, shareholders, partners, limited partners and other authorized
representatives; provided, however, that each Investor may disclose or deliver
any information or other material disclosed to or received by it should such
Investor be advised by its counsel that such disclosure or delivery is required
by law, regulation or judicial or administrative order. In the event of any
termination of this Agreement prior to the Closing Date, each Investor shall
return to the Company all confidential material previously furnished to such
Investor or its officers, directors, partners, employees, counsel, accountants
and other representatives in connection with this transaction. For purposes of
this Section 6(c), "due care" means at least the same level of care that such
Investor would use to protect the confidentiality of its own sensitive or
proprietary information, and this obligation shall survive termination of this
Agreement.
(d) Conduct of Business and Maintenance of Existence
-10-
<PAGE>
The Company will continue, and will cause Target to continue, to engage in
business of the same general type as now conducted by it, and preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business. The Company shall require all
of its and its subsidiaries' employees or consultants to enter into appropriate
confidentiality agreements to protect confidential information relating to the
Company and its business, including trade secrets.
(e) Compliance with Laws
The Company will comply, and will cause each of its subsidiaries to comply,
in all material respects with all applicable laws, rules, regulations and orders
except where the failure to comply would not have a material adverse effect on
the business, properties, operations, prospects or financial condition of the
Company and its subsidiaries.
(f) Insurance
The Company will maintain, and will cause each of its subsidiaries to
maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies of similar size and credit standing engaged in similar business and
owning similar properties, provided that such insurance is and remains available
to the Company and its subsidiaries, as the case may be, at commercially
reasonable rates.
(g) Keeping of Books
The Company will keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and its subsidiaries in accordance with GAAP.
(h) Lost, etc. Certificates Evidencing Shares (or Shares of Common Stock);
Exchange. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any certificate evidencing any
Shares or shares of Common Stock owned by any Investor, and (in the case of
loss, theft or destruction) of an unsecured indemnity satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of such certificate, if mutilated, the
Company will make and deliver in lieu of such certificate a new certificate of
like tenor and for the number of shares evidenced by such certificate which
remain outstanding. An Investor's agreement of indemnity shall constitute an
indemnity satisfactory to the
-11-
<PAGE>
Company for purposes of this Section 6. Upon surrender of any certificate
representing any Shares or shares of Common Stock for exchange at the office of
the Company, the Company at its expense will cause to be issued in exchange
therefor new certificates in such denomination or denominations as may be
requested for the same aggregate number of Shares or shares of Common Stock
represented by the certificate so surrendered and registered as such holder may
request. The Company will also pay the cost of all deliveries of certificates
for such shares to any Investor (including the cost of insurance against loss or
theft in an amount satisfactory to the holders) upon any exchange provided for
in this Section 6.
(i) Termination. The provisions of this Section 6 (other than Section 6(h),
which shall survive) shall remain in effect until the closing of a Qualified
Public Offering (as defined in the Amended and Restated Certificate).
7. SECURITIES ACT RESTRICTIONS. In addition to the legend required by
Section 1(a) of the Stockholders Agreement, the certificates evidencing the
Shares will bear the following legend reflecting the restrictions on the
transfer of such securities contained in this Agreement:
"The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be transferred
except pursuant to an effective registration under the Act or in a
transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Act and the rules and
regulations promulgated thereunder."
8. OTHER AGREEMENTS. On the Closing Date, the Company and each of the
Investors shall execute and mutually deliver a counterpart of the Stockholders
Agreement and the Registration Rights Agreement.
9. INTERPRETATION OF THIS AGREEMENT
(a) Terms Defined. As used in this Agreement, the following terms have the
respective meaning set forth below:
Exchange Act: the Securities Exchange Act of 1934, as amended.
GAAP: generally accepted accounting principles, consistently applied.
Person: an individual, partnership, joint-stock company, corporation,
limited liability company, trust or unincorporated organization, and a
government or agency or political subdivision thereof.
-12-
<PAGE>
Registration Rights Agreement: that certain registration rights agreement,
dated as of the Closing Date, by and among the Company and each of the
Investors, such agreement to be substantially in the form attached hereto as
Exhibit E.
SEC: the Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act.
Securities Act: the Securities Act of 1933, as amended.
Security, Securities: as defined in Section 2(1) of the Securities Act.
Shares: Shares of Preferred Stock issued pursuant to Section 2 hereunder.
Transfer: any sale, assignment, pledge, hypothecation, or other disposition
or encumbrance.
(b) Directly or Indirectly. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within such State.
(d) Section Headings. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
10. TERMINATION
-----------
(a) In the event (i) the Merger Agreement is terminated prior to the
Closing Date or (ii) the Merger Agreement is not executed and delivered by the
parties thereto within three business days of the date hereof, this Agreement
will be terminate automatically and shall have no further force or effect.
(b) Upon a termination of this Agreement pursuant to Section 10(a), the
Company shall promptly return any Exchange Instruments delivered to it pursuant
to Section 2(f) to the Exchange Investors.
11. MISCELLANEOUS
-------------
(a) Notices. All communications under this Agreement shall be in writing
and shall be delivered by hand or facsimile
-13-
<PAGE>
or mailed by overnight courier or by registered mail or certified mail, postage
prepaid:
(i) if to the Company, c/o Warburg, Pincus & Co., at 466 Lexington Avenue,
New York, New York 10017, Attention: Joel Ackerman (Fax No.: (212)
878-9351), or at such other address or facsimile number as Warburg may
have furnished the other parties hereto in writing;
(ii) if to any Investor, at the address or facsimile number set forth below
such Investor's name on Schedule I or Schedule II hereto, or at such
other address or facsimile number as the Investor may have furnished
the other parties hereto in writing.
(b) Any notice so addressed shall be deemed to be given: if delivered by
hand or facsimile, on the date of such delivery, if a business day, otherwise
the first business day thereafter; if mailed by courier, on the first business
day following the date of such mailing; and if mailed by registered or certified
mail, on the third business day after the date of such mailing.
(c) Reproduction of Documents. This Agreement and all documents relating
thereto, including, without limitation, (i) consents, waivers and modifications
relating hereto which may hereafter be executed, (ii) documents received by the
Investors on the Closing Date (except for certificates evidencing the Shares
themselves), and (iii) financial statements, certificates and other information
previously or hereafter furnished to the Investors, may be reproduced by the
Investors by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process and the Investors may destroy any original
document so reproduced. All parties hereto agree and stipulate that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Investor in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(d) Survival. All warranties, representations, and covenants made by the
Investors and the Company herein or in any certificate or other instrument
delivered by any Investor or the Company under this Agreement shall be
considered to have been relied upon by the Company or the Investors, as the case
may be, and shall survive all deliveries to the Investors of the Shares, or
payment to the Company for such Shares, regardless of any investigation made by
the Company or any of the Investors, as the case may be, or on the Company's or
the Investor's behalf. All statements in any such certificate or other
instrument shall
-14-
<PAGE>
constitute warranties and representations by the Company hereunder.
(e) Successors and Assigns; No Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties. Nothing in this Agreement shall confer upon any Person not
a party to this Agreement any rights or remedies of any nature or kind
whatsoever under or by reason of this Agreement.
(f) Entire Agreement; Amendment and Waiver. This Agreement, the
Registration Rights Agreement, the Stockholders Agreement and the Certificate of
Incorporation (including the Amended and Restated Certificate) constitute the
entire understandings of the parties hereto and supersede all prior agreements
or understandings with respect to the subject matter hereof among such parties.
This Agreement may be amended, and the observance of any term of this Agreement
may be waived, with (and only with) the written consent of the Company and each
of the Investors.
(g) Severability. In the event that any part or parts of this Agreement
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not affect the remaining
provisions of this Agreement which shall remain in full force and effect.
(h) Obligations Several. Notwithstanding anything to the contrary contained
in this Agreement, the representations and warranties, covenants and other
agreements under this Agreement shall be several, but not joint.
(i) Limitation on Enforcement of Remedies. The Company hereby agrees that
it will not assert against the partners of any of the Investors any claim it may
have under this Agreement by reason of any failure or alleged failure by any of
the Investors to meet its obligations hereunder.
(j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
-15-
<PAGE>
Please indicate your acceptance and approval of the foregoing in the space
provided below.
HILLTOPPER HOLDING CORP.
By: /s/ David Wenstrup
------------------------------
Name: David Wenstrup
Title: Vice President
ACCEPTED AND APPROVED
AS OF THE 24th DAY OF
FEBRUARY, 2000
WARBURG, PINCUS EQUITY PARTNERS, L.P.
By: Warburg, Pincus & Co.,
General Partner
By: /s/ Joel Ackerman
------------------------------
Name: Joel Ackerman
Title: Managing Director
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I, C.V.
By: Warburg, Pincus & Co.,
General Partner
By: /s/ Joel Ackerman
------------------------------
Name: Joel Ackerman
Title: Managing Director
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II, C.V.
By: Warburg, Pincus & Co.,
General Partner
By: /s/ Joel Ackerman
------------------------------
Name: Joel Ackerman
Title: Managing Director
-16-
<PAGE>
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III, C.V.
By: Warburg, Pincus & Co.,
General Partner
By: /s/ Joel Ackerman
------------------------------
Name: Joel Ackerman
Title: Managing Director
WELSH, CARSON, ANDERSON & STOWE VI, L.P.
By: /s/ Jonathan M. Rather
------------------------------
Name: Jonathan M. Rather
Title: Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: /s/ Jonathan M. Rather
------------------------------
Name: Jonathan M. Rather
Title: Attorney-in-Fact
SOUTH ATLANTIC VENTURE FUND II, LIMITED PARTNERSHIP
By: South Atlantic Venture Partners II,
Limited Partnership, General
Partner
By: /s/ Donald W. Burton
------------------------------
Name: Donald W. Burton
Title: Partner
SOUTH ATLANTIC VENTURE FUND III, LIMITED PARTNERSHIP
By: South Atlantic Venture Partners III,
Limited Partnership, General
Partner
By: /s/ Donald W. Burton
------------------------------
Name: Donald W. Burton
Title: Partner
-17-
<PAGE>
SOUTH ATLANTIC PRIVATE EQUITY FUND IV, LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners
IV, Limited Partnership, General
Partner
By: /s/ Donald W. Burton
------------------------------
Name: Donald W. Burton
Title: Partner
SOUTH ATLANTIC PRIVATE EQUITY FUND IV (QP), LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners
IV, Limited Partnership, General
Partner
By: /s/ Donald W. Burton
------------------------------
Name: Donald W. Burton
Title: Partner
THE BURTON PARTNERSHIP, LIMITED PARTNERSHIP
By: /s/ Donald W. Burton
------------------------------
Name: Donald W. Burton
Title: General Partner
/s/ J. Stephen Eaton
- ------------------------------
J. Stephen Eaton
/s/ Lawrence W. Lepley, Jr.
- ------------------------------
Lawrence W. Lepley, Jr.
/s/ Alan C. Dahl
- ------------------------------
Alan C. Dahl
/s/ Kent C. Fosha, Sr.
- ------------------------------
Kent C. Fosha, Sr.
-18-
<PAGE>
Patrick J. Welsh
Russell L. Carson
Bruce K. Anderson
Andrew M. Paul
Thomas E. McInerney
Robert A. Minicucci
Paul B. Queally
By: /s/ Jonathan M. Rather
------------------------------
Name: Jonathan M. Rather
Title: Attorney-in-Fact
-19-
<PAGE>
SCHEDULE I
CASH INVESTORS
Number of Number of
Shares of Shares of Price Per
Series A Series B Share of
Preferred Preferred Preferred
Name/Address/Fax No. of Subscriber Stock Stock Stock
- ---------------------------------- --------- --------- ---------
Warburg, Pincus Equity Partners, L.P. 8,534,813 $5.50
466 Lexington Avenue
New York, NY 10017
Fax: 212 878-9351
Attention: Joel Ackerman
Warburg, Pincus Netherlands 270,946 $5.50
Equity Partners I, C.V.
466 Lexington Avenue
New York, NY 10017
Fax: 212 878-9351
Attention: Joel Ackerman
Warburg, Pincus Netherlands 180,631 $5.50
Equity Partners II, C.V.
466 Lexington Avenue
New York, NY 10017
Fax: 212 878-9351
Attention: Joel Ackerman
Warburg, Pincus Netherlands 45,158 $5.50
Equity Partners III, C.V.
466 Lexington Avenue
New York, NY 10017
Fax: 212 878-9351
Attention: Joel Ackerman
South Atlantic Private Equity 381,818 $5.50
Fund, IV, L.P.
614 West Bay Street
Tampa, FL 33606-2704
Fax: (813) 253-2360
Attention: Donald W. Burton
-20-
<PAGE>
South Atlantic Private Equity 527,273 $5.50
Fund, IV (QP), L.P.
614 West Bay Street
Tampa, FL 33606-2704
Fax: (813) 253-2360
Attention: Donald W. Burton
-21-
<PAGE>
<TABLE>
SCHEDULE II
EXCHANGE INVESTORS
<CAPTION>
Number of Number of
Shares of Shares of Value per
Series A Series B Number of Share of
Preferred Preferred Exchange Exchange
Name/Address/Fax No. of Subscriber Stock Stock Shares Shares
- ---------------------------------- ----- ----- ------ ------
<S> <C> <C> <C> <C>
Welsh, Carson, Anderson & 2,520,193 2,520,193 $5.50
Stowe VI, L.P.
320 Park Avenue, Suite 2500
New York, NY 10022-6815
Fax: (212) 893-9562
Attention: Andrew M. Paul
WCAS Healthcare Partners, L.P. 81,384 81,384 $5.50
320 Park Avenue, Suite 2500
New York, NY 10022-6815
Fax: (212) 893-9562
Attention: Andrew M. Paul
South Atlantic Venture Fund II, 798,963 798,963 $5.50
Limited Partnership
614 West Bay Street
Tampa, FL 33606-2704
Fax: (813) 253-2360
Attention: Donald W. Burton
South Atlantic Venture Fund III, 206,214 206,214 $5.50
Limited Partnership
614 West Bay Street
Tampa, FL 33606-2704
Fax: (813) 253-2360
Attention: Donald W. Burton
</TABLE>
-22-
<PAGE>
<TABLE>
<CAPTION>
Number of Number of
Shares of Shares of Value per
Series A Series B Number of Share of
Preferred Preferred Exchange Exchange
Name/Address/Fax No. of Subscriber Stock Stock Shares Shares
- ---------------------------------- ----- ----- ------ ------
<S> <C> <C> <C> <C>
The Burton Partnership, 187,500 187,500 $5.50
Limited Partnership
P.O. Box 4643
Jackson, WY 83001,
with a copy to:
The Burton Partnership,
Limited Partnership
614 West Bay Street
Tampa, FL 33606-2704
Fax: (813) 253-2360
Attention: Donald W. Burton
Patrick J. Welsh 49,977 49,977 $5.50
c/o Welsh, Carson, Anderson
& Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Russell L. Carson 49,977 49,977 $5.50
c/o Welsh, Carson, Anderson
& Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Bruce K. Anderson 29,977 29,977 $5.50
c/o Welsh, Carson, Anderson
& Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
</TABLE>
-23-
<PAGE>
<TABLE>
<CAPTION>
Number of Number of
Shares of Shares of Value per
Series A Series B Number of Share of
Preferred Preferred Exchange Exchange
Name/Address/Fax No. of Subscriber Stock Stock Shares Shares
- ---------------------------------- ----- ----- ------ ------
<S> <C> <C> <C> <C>
Andrew M. Paul 9,686 9,686 $5.50
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Thomas E. McInerney 10,000 10,000 $5.50
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Robert A. Minicucci 10,772 10,772 $5.50
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Paul B. Queally 705 705 $5.50
c/o Welsh, Carson, Anderson
& Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
J. Stephen Eaton 569,917 569,917 $5.50
c/o Centennial HealthCare Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, GA 30346
Fax: (770) 730-1268
</TABLE>
-24-
<PAGE>
<TABLE>
<CAPTION>
Number of Number of
Shares of Shares of Value per
Series A Series B Number of Share of
Preferred Preferred Exchange Exchange
Name/Address/Fax No. of Subscriber Stock Stock Shares Shares
- ---------------------------------- ----- ----- ------ ------
<S> <C> <C> <C> <C>
Lawrence W. Lepley, Jr. 83,225 83,225 $5.50
c/o Centennial HealthCare
Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, GA 30346
Fax: (770) 730-1268
Alan C. Dahl 92,792 92,792 $5.50
c/o Centennial HealthCare Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, GA 30346
Fax: (770) 730-1268
Kent C. Fosha, Sr. 8,970 8,970 $5.50
c/o Centennial HealthCare Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, GA 30346
Fax: (770) 730-1268
</TABLE>
<PAGE>
EXHIBIT 2
EXECUTION COPY
================================================================================
CENTENNIAL HEALTHCARE CORPORATION,
HILLTOPPER HOLDING CORP.
and
HILLTOPPER ACQUISITION CORP.
===============================
AGREEMENT AND PLAN OF MERGER
===============================
===============================
Dated as of February 25, 2000
===============================
================================================================================
<PAGE>
TABLE OF CONTENTS
Page No.
--------
ARTICLE I. THE TENDER OFFER...................................................2
SECTION 1.1. The Offer...................................................2
SECTION 1.2. Company Action..............................................4
SECTION 1.3. Directors...................................................5
ARTICLE II. THE MERGER........................................................7
SECTION 2.1. The Merger..................................................7
SECTION 2.2. Effective Time..............................................7
SECTION 2.3. Effect of the Merger........................................7
SECTION 2.4. Subsequent Actions..........................................7
SECTION 2.5. Articles of Incorporation; By-Laws;
Directors and Officers....................................8
SECTION 2.6. Conversion of Securities....................................8
SECTION 2.7. Dissenting Shares...........................................9
SECTION 2.8. Surrender of Shares; Stock Transfer
Books....................................................10
SECTION 2.9. Stock Plans................................................11
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE PARENT
AND PURCHASER............................................................12
SECTION 3.1. Corporate Organization.....................................12
SECTION 3.2. Authority Relative to this Agreement.......................12
SECTION 3.3. No Conflict; Required Filings and
Consents.................................................12
SECTION 3.4. Financing Arrangements.....................................13
SECTION 3.5. No Prior Activities........................................13
SECTION 3.6. Brokers....................................................13
SECTION 3.7. Offer Documents; Proxy Statement...........................14
SECTION 3.8. Company Stock..............................................14
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................14
SECTION 4.1. Organization and Qualification;
Subsidiaries.............................................14
SECTION 4.2. Capitalization.............................................16
SECTION 4.3. Authority Relative to this Agreement.......................17
SECTION 4.4. No Conflict; Required Filings and
Consents.................................................18
SECTION 4.5. SEC Filings; Financial Statements..........................18
SECTION 4.6. Absence of Certain Changes or Events.......................20
SECTION 4.7. Litigation.................................................21
SECTION 4.8. Employee Benefit Plans.....................................21
SECTION 4.9. Properties.................................................24
SECTION 4.10. Intellectual Property.....................................25
SECTION 4.11. Insurance.................................................26
SECTION 4.12. Environmental.............................................26
SECTION 4.13. Governmental Authorizations and
Regulations.............................................28
SECTION 4.14. Condition of Facilities...................................30
SECTION 4.15. Material Contracts........................................31
SECTION 4.16. Conduct of Business.......................................33
SECTION 4.17. Fraud and Abuse...........................................33
(i)
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SECTION 4.18. Health Professional's Financial
Relationships; Disqualified
Individuals;............................................34
SECTION 4.19. Taxes.....................................................35
SECTION 4.20. Labor Relations...........................................37
SECTION 4.21. Transactions with Affiliates..............................37
SECTION 4.22. Offer Documents; Proxy Statement..........................38
SECTION 4.23. Brokers...................................................38
SECTION 4.24. Control Share Acquisition.................................39
SECTION 4.25. Y2K Compliance............................................39
SECTION 4.26. Disclosure................................................39
ARTICLE V. CONDUCT OF BUSINESS PENDING THE MERGER............................40
SECTION 5.1. Conduct of Business by the Company
Pending the Closing......................................40
SECTION 5.2. No Solicitation............................................42
ARTICLE VI. ADDITIONAL AGREEMENTS............................................45
SECTION 6.1. Proxy Statement............................................45
SECTION 6.2. Meeting of Shareholders of the
Company..................................................45
SECTION 6.3. Compliance with Law........................................46
SECTION 6.4. Notification of Certain Matters............................46
SECTION 6.5. Access to Information......................................46
SECTION 6.6. Public Announcements.......................................47
SECTION 6.7. Reasonable Best Efforts; Cooperation.......................47
SECTION 6.8. Agreement to Defend and Indemnify..........................47
SECTION 6.9. State Takeover Laws........................................49
ARTICLE VII. CONDITIONS OF MERGER............................................49
SECTION 7.1. Conditions for Each Party's
Obligations to Effect the Merger.........................49
SECTION 7.2. Conditions for Obligations of Parent
and Purchaser............................................50
ARTICLE VIII. TERMINATION, AMENDMENT AND WAIVER..............................51
SECTION 8.1. Termination................................................51
SECTION 8.2. Effect of Termination......................................53
ARTICLE IX. GENERAL PROVISIONS...............................................54
SECTION 9.1. Non-Survival of Representations,
Warranties and Agreements................................54
SECTION 9.2. Notices....................................................54
SECTION 9.3. Expenses...................................................55
SECTION 9.4. Certain Definitions........................................55
SECTION 9.5. Headings...................................................56
SECTION 9.6. Severability...............................................56
SECTION 9.7. Entire Agreement; No Third-Party
Beneficiaries............................................56
SECTION 9.8. Assignment.................................................56
SECTION 9.9. Governing Law..............................................56
SECTION 9.10. Amendment.................................................56
SECTION 9.11. Waiver....................................................56
SECTION 9.12. Counterparts..............................................57
(ii)
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of February 25, 2000 (the
"Agreement"), among Centennial HealthCare Corporation, a Georgia corporation
(the "Company"), Hilltopper Holding Corp., a Delaware corporation ("Parent"),
and Hilltopper Acquisition Corp., a Georgia corporation and an indirect wholly
owned subsidiary of Parent ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Boards of Directors of the Company and Purchaser have each
determined that it is in the best interests of their respective shareholders for
Purchaser to acquire the Company upon the terms and subject to the conditions
set forth herein; and
WHEREAS, in furtherance thereof, it is proposed that Purchaser will make a
cash tender offer (the "Offer") to acquire all shares (the "Shares") of the
issued and outstanding common stock, $.01 par value, of the Company (the
"Company Common Stock") for $5.50 per share of Company Common Stock or such
higher price as may be paid in the Offer (the "Per Share Amount"), net to the
seller in cash; and
WHEREAS, also in furtherance of such acquisition, the Boards of Directors
of the Company, Purchaser and Parent have each approved the merger of Purchaser
with and into the Company (the "Merger") following the Offer in accordance with
the Georgia Business Corporation Code (the "Georgia Code") and upon the terms
and subject to the conditions set forth herein; and
WHEREAS, on February 24, 2000, certain shareholders of the Company (the
"Contributing Shareholders") entered into a Subscription and Contribution
Agreement with Parent and certain affiliates of Parent (the "Subscription
Agreement"), pursuant to which each such Contributing Shareholder has, among
other things, agreed to contribute some or all of its Shares to Parent in
exchange for shares of stock of Parent upon the terms set forth in the
Subscription Agreement; and
WHEREAS, as an inducement and a condition to Parent's and Purchaser's
entering into this Agreement, contemporaneously with the execution and delivery
of this Agreement, the Contributing Shareholders have entered into a Voting
Agreement with Parent and Purchaser (the "Voting Agreement"), pursuant to which
each such Contributing Shareholder has, among other things,(x) agreed not to
tender its Shares in the Offer and (y) granted to Parent a proxy with respect to
the voting of such Shares, in each case upon the terms and subject to the
conditions set forth in the Voting Agreement; and
WHEREAS, the Board of Directors of the Company (the "Board of Directors"),
based on the recommendation of a special
<PAGE>
committee (the "Special Committee") of the Board of Directors comprised solely
of directors unaffiliated with the Contributing Shareholders, has approved this
Agreement, the Subscription Agreement and the Voting Agreement and has
determined that the consideration to be paid for each Share in the Offer and the
Merger is fair to the holders of such Shares and to recommend that the holders
of such Shares accept the Offer and approve this Agreement and the transactions
contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Company, Parent and Purchaser hereby agree as follows:
ARTICLE I.
THE TENDER OFFER
SECTION 1.1. The Offer.
(a) Provided that this Agreement shall not have been terminated in
accordance with Section 8.1 hereof and none of the events set forth in Annex I
hereto shall have occurred and be existing, Purchaser or a direct or indirect
subsidiary of Parent as designated by Parent shall commence (within the meaning
of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act") the
Offer as promptly as reasonably practicable following the execution of this
Agreement, but in any event within 15 business days following the date of this
Agreement. The obligation of Parent to accept for payment any Shares tendered
shall be subject to the satisfaction of those conditions set forth in Annex I.
Parent expressly reserves the right from time to time, subject to Sections
1.1(b) and 1.1(d) hereof, to waive any such condition, to increase the Per Share
Amount, or to make any other changes in the terms and conditions of the Offer.
The Per Share Amount shall be net to the seller in cash, subject to reduction
only for any applicable Federal back-up withholding or stock transfer taxes
payable by the seller. The Company agrees that no Shares held by the Company or
any of its Subsidiaries (as defined below) will be tendered pursuant to the
Offer.
(b) Without the prior written consent of the Company, Parent shall not (i)
decrease the Per Share Amount or change the form of consideration payable in the
Offer, (ii) decrease the number of Shares sought, (iii) amend or waive
satisfaction of the Minimum Condition (as defined in Annex I) or (iv) impose
additional conditions to the Offer or amend any other term of the Offer in any
manner adverse to the holders of Shares. Upon the terms and subject to the
conditions of the Offer, Purchaser will accept for payment and purchase, as soon
as permitted under the terms of the Offer, all Shares validly tendered and not
withdrawn prior to the expiration of the Offer.
-2-
<PAGE>
(c) The Offer shall be made by means of an offer to purchase (the "Offer to
Purchase") having only the conditions set forth in Annex I hereto. As soon as
practicable on the date the Offer is commenced, Parent and Purchaser shall file
with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement
on Schedule TO (together with all amendments and supplements thereto, the
"Schedule TO") and, if necessary, jointly file with Target a Transaction
Statement on Schedule 13E-3 (together with all amendments and supplements
thereto, the "Schedule 13E-3") with respect to the Offer that will comply in all
material respects with the provisions of all applicable Federal securities laws,
and will contain (including as an exhibit) or incorporate by reference the Offer
to Purchase and forms of the related letter of transmittal and summary
advertisement (which documents, together with any supplements or amendments
thereto, and any other SEC schedule or form which is filed in connection with
the Offer and related transactions, are referred to collectively herein as the
"Offer Documents"). Parent and Purchaser agree promptly to correct the Schedule
TO and the Offer Documents and to cooperate with Target to amend the Schedule
13E-3 if and to the extent that such documents shall have become false or
misleading in any material respect (and the Company, with respect to written
information supplied by it specifically for use in the Schedule TO, Schedule
13E-3 or the Offer Documents, shall promptly notify Parent of any required
corrections of such information and shall cooperate with Parent and Purchaser
with respect to correcting such information) and to supplement the information
provided by it specifically for use in the Schedule TO, Schedule 13E-3 or the
Offer Documents to include any information that shall become necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and Parent and Purchaser further agree to take all
steps necessary to cause the Schedule TO or Schedule 13E-3, as so corrected or
supplemented, to be filed with the SEC and the Offer Documents, as so corrected
or supplemented, to be disseminated to holders of Shares, in each case as and to
the extent required by applicable Federal securities laws. The Company and its
counsel shall be given a reasonable opportunity to review and comment on any
Offer Documents before they are filed with the SEC.
(d) The Offer to Purchase shall provide for an initial expiration date of
20 business days (as defined in Rule 14d-1 under the Exchange Act) from the date
of commencement. Purchaser agrees that it shall not terminate or withdraw the
Offer or extend the expiration date of the Offer unless at the expiration date
of the Offer the conditions to the Offer described in Annex I hereto shall not
have been satisfied or earlier waived. If at the expiration date of the Offer,
the conditions to the Offer described in Annex I hereto shall not have been
satisfied or earlier waived, Parent may, from time to time extend the expiration
date of the Offer until the date such conditions are satisfied or earlier waived
and Parent becomes obligated to accept for payment and pay for Shares tendered
pursuant to the
-3-
<PAGE>
Offer, but in no event shall such extensions extend beyond the Termination Date
(as defined below). Notwithstanding the foregoing, Purchaser may, without the
consent of the Company, (i) extend the expiration date of the Offer (as it may
be extended) for any period required by applicable rules and regulations of the
SEC in connection with an increase in the consideration to be paid pursuant to
the Offer and (ii) extend the expiration date of the Offer (as it may be
extended) for up to ten business days, if on such expiration date the conditions
for the Offer described on Annex I hereto shall have been satisfied or earlier
waived, but the number of Shares that have been validly tendered and not
withdrawn, when added to the Shares, if any, beneficially owned by Parent
represents less than 90 percent of the then issued and outstanding Shares on a
fully diluted basis.
SECTION 1.2. Company Action.
(a) The Company hereby approves of and consents to the Offer and represents
and warrants that the Board of Directors, at a meeting duly called and held on
February 25, 2000, at which all of the Directors were present, and acting on the
unanimous recommendation of the Special Committee, duly and unanimously: (i)
approved and adopted this Agreement, the Subscription Agreement and the Voting
Agreement and the transactions contemplated hereby and thereby, including the
Offer and the Merger; (ii) recommended that the shareholders of the Company
accept the Offer, tender their Shares pursuant to the Offer and approve this
Agreement and the transactions contemplated hereby, including the Merger; (iii)
determined that this Agreement and the transactions contemplated hereby,
including the Offer and the Merger, are fair to and in the best interests of the
shareholders of the Company; and (iv) took all action necessary to render the
limitations on business combinations contained in Part 2 of Article 11 of the
Georgia Code inapplicable to this Agreement, the Subscription Agreement and the
Voting Agreement and the transactions contemplated hereby and thereby. The
Company further represents and warrants that J.P. Morgan Securities Inc. ("J.P.
Morgan") as financial advisor to the Special Committee, delivered to the Special
Committee and the Board of Directors a written opinion, dated as of February 25,
2000, to the effect that the Per Share Amount to be received by the shareholders
(other than Parent, Purchaser and the Contributing Shareholders) of the Company
pursuant to the Offer and the Merger is fair to such shareholders from a
financial point of view.
(b) The Company hereby agrees to file with the SEC, as promptly as
practicable after the filing by Parent and Purchaser of the Schedule TO with
respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on
Schedule 14D-9 (together with any amendments or supplements thereto, the
"Schedule 14D-9") and the Schedule 13E-3 that (i) will comply in all material
respects with the provisions of all applicable Federal securities laws and (ii)
will include the opinion of J.P. Morgan referred to in Section 1.2(a) hereof.
The Schedule 14D-9 and the Offer
-4-
<PAGE>
Documents shall contain the recommendations of the Board of Directors described
in Section 1.2(a) hereof. The Company agrees promptly to correct the Schedule
14D-9 or the Schedule 13E-3 if and to the extent that it shall become false or
misleading in any material respect (and each of Parent and Purchaser, with
respect to written information supplied by it specifically for use in the
Schedule 14D-9 or the Schedule 13E-3, shall promptly notify the Company of any
required corrections of such information and cooperate with the Company with
respect to correcting such information) and to supplement the information
contained in the Schedule 14D-9 or the Schedule 13E-3 to include any information
that shall become necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and the Company
shall take all steps necessary to cause the Schedule 14D-9 or the Schedule 13E-3
as so corrected to be filed with the SEC and disseminated to the Company's
shareholders to the extent required by applicable Federal securities laws.
Parent and its counsel shall be given a reasonable opportunity to review and
comment on the Schedule 14D-9 before it is filed with the SEC.
(c) In connection with the Offer, the Company shall promptly upon execution
of this Agreement furnish Parent with mailing labels containing the names and
addresses of all record holders of Shares, non-objecting beneficial owners list
and security position listings of Shares held in stock depositories, each as of
a recent date, and shall promptly furnish Parent with such additional
information, including updated lists of shareholders, mailing labels and
security position listings, and such other information and assistance as Parent
or its agents may reasonably request for the purpose of communicating the Offer
to the record and beneficial holders of Shares.
SECTION 1.3. Directors. Promptly upon the purchase by Purchaser of any
Shares pursuant to the Offer, and from time to time thereafter as Shares are
acquired by Purchaser, Parent shall be entitled to designate such number of
directors, rounded up to the next whole number, on the Board of Directors as
will give Parent, subject to compliance with Section 14(f) of the Exchange Act,
representation on the Board of Directors equal to at least that number of
directors which equals the product of the total number of directors on the Board
of Directors (giving effect to the directors appointed or elected pursuant to
this sentence and including current directors serving as officers of the
Company) multiplied by the percentage that the aggregate number of Shares
beneficially owned by Parent or any affiliate of Parent (including for purposes
of this Section 1.3 such Shares as are accepted for payment pursuant to the
Offer, but excluding Shares held by the Company or any of its Subsidiaries)
bears to the number of Shares outstanding. At each such time, the Company will
also cause (i) each committee of the Board of Directors, (ii) if requested by
Parent, the board of directors of each of the Subsidiaries and (iii) if
requested by Parent, each committee of such board to include persons designated
by Parent
-5-
<PAGE>
constituting the same percentage of each such committee or board as Parent's
designees constitute on the Board of Directors. The Company shall, upon request
by Parent, promptly increase the size of the Board of Directors or exercise its
best efforts to secure the resignations of such number of directors as is
necessary to enable Parent's designees to be elected to the Board of Directors
in accordance with the terms of this Section 1.3 and shall cause Parent's
designees to be so elected; provided, however, that, in the event that Parent's
designees are appointed or elected to the Board of Directors, until the
Effective Time (as defined in Section 2.2 hereof) the Board of Directors shall
have at least two directors who are directors on the date hereof and who are
neither officers of the Company, Contributing Shareholders nor designees,
shareholders, affiliates or associates (within the meaning of the Federal
securities laws) of Parent or any Contributing Shareholder (such directors, the
"Independent Directors"); provided further, that if at any time or from time to
time there are fewer than two Independent Directors, the other directors shall
elect to the Board of Directors such number of persons who shall be neither
officers of the Company, Contributing Shareholders nor designees, shareholders,
affiliates or associates of Parent or any Contributing Shareholder so that the
total of such persons and remaining Independent Directors serving on the Board
of Directors is at least two. Any such person elected to the Board of Directors
pursuant to the second proviso of the preceding sentence shall be deemed to be
an Independent Director for purposes of this Agreement. Subject to applicable
law, the Company shall promptly take all action necessary pursuant to Section
14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to
fulfill its obligations under this Section 1.3 and shall include in the Schedule
14D-9 mailed to shareholders promptly after the commencement of the Offer (or an
amendment thereof or an information statement pursuant to Rule 14f-1 if Parent
has not theretofore designated directors) such information with respect to the
Company and its officers and directors as is required under Section 14(f) and
Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent
will supply the Company any information with respect to itself and its nominees,
officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
Notwithstanding anything in this Agreement to the contrary, following the time
directors designated by Parent constitute a majority of the Board of Directors
and prior to the Effective Time, the affirmative vote of a majority of the
Independent Directors shall be required to (i) amend or terminate this Agreement
on behalf of the Company, (ii) exercise or waive any of the Company's rights or
remedies hereunder, (iii) extend the time for performance of Parent's
obligations hereunder or (iv) take any other action by the Company in connection
with this Agreement required to be taken by the Board of Directors.
-6-
<PAGE>
ARTICLE II.
THE MERGER
SECTION 2.1. The Merger. At the Effective Time (as defined in Section 2.2)
and subject to and upon the terms and conditions of this Agreement and the
Georgia Code, Purchaser shall be merged with and into the Company, the separate
corporate existence of Purchaser shall cease, and the Company shall continue as
the surviving corporation. The Company as the surviving corporation after the
Merger hereinafter sometimes is referred to as the "Surviving Corporation."
SECTION 2.2. Effective Time. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in Article VII, the parties
hereto shall cause the Merger to be consummated by filing Articles of Merger, in
accordance with Section 14-2-1105 of the Georgia Code, with the Secretary of
State of the State of Georgia, in such form as required by, and executed in
accordance with the relevant provisions of, the Georgia Code (the time of such
filing being the "Effective Time").
SECTION 2.3. Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the Georgia Code.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time all the property, rights, privileges, powers and franchises of
the Company and Purchaser shall vest in the Surviving Corporation, and all
debts, liabilities and duties of the Company and Purchaser shall become the
debts, liabilities and duties of the Surviving Corporation.
SECTION 2.4. Subsequent Actions. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either of the Company or Purchaser acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with, the
Merger or otherwise to carry out this Agreement, the officers and directors of
the Surviving Corporation shall be authorized to execute and deliver, in the
name and on behalf of either the Company or Purchaser, all such deeds, bills of
sale, assignments and assurances and to take and do, in the name and on behalf
of each of such corporations or otherwise, all such other actions and things as
may be necessary or desirable to vest, perfect or confirm any and all right,
title and interest in, to and under such rights, properties or assets in the
Surviving Corporation or otherwise to carry out this Agreement.
-7-
<PAGE>
SECTION 2.5. Articles of Incorporation; By-Laws; Directors and Officers.
(a) Unless otherwise determined by Parent before the Effective Time, at the
Effective Time the Articles of Incorporation of Purchaser, as in effect
immediately before the Effective Time, shall be the Articles of Incorporation of
the Surviving Corporation until thereafter amended as provided by law and such
Articles of Incorporation.
(b) The By-Laws of Purchaser, as in effect immediately before the Effective
Time, shall be the By-Laws of the Surviving Corporation until thereafter amended
as provided by law, the Articles of Incorporation of the Surviving Corporation
and such By-Laws.
(c) The directors of Purchaser immediately before the Effective Time will
be the initial directors of the Surviving Corporation, and the officers of the
Company immediately before the Effective Time will be the initial officers of
the Surviving Corporation, in each case until their successors are elected or
appointed and qualified. If, at the Effective Time, a vacancy shall exist on the
Board of Directors or in any office of the Surviving Corporation, such vacancy
may thereafter be filled in the manner provided by law.
SECTION 2.6. Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of Purchaser, the Company or the
holder of any of the following securities:
(a) Each share of Company Common Stock issued and outstanding immediately
before the Effective Time (other than any Shares to be canceled pursuant to
Section 2.6(b) and any Dissenting Shares (as defined in Section 2.7(a)) shall be
canceled and extinguished and be converted into the right to receive the Per
Share Amount in cash payable to the holder thereof, without interest, upon
surrender of the certificate representing such Share. Each holder of a
certificate representing any such Shares shall cease to have any rights with
respect thereto, except the right to receive the Per Share Amount, without
interest, upon the surrender of such certificate in accordance with Section 2.8
hereof.
(b) Each share of Company Common Stock held in the treasury of the Company
and each Share owned by Parent or any direct or indirect wholly owned subsidiary
of Parent or of the Company immediately before the Effective Time shall be
canceled and extinguished and no payment or other consideration shall be made
with respect thereto.
(c) Each share of common stock, $.0l par value, of Purchaser issued and
outstanding immediately before the Effective Time shall thereafter represent one
validly issued, fully paid
-8-
<PAGE>
and nonassessable share of common stock, $.0l par value, of the Surviving
Corporation.
SECTION 2.7. Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to the contrary, Shares
that are outstanding immediately prior to the Effective Time and that are held
by any shareholder who has delivered to the Company, prior to the vote of
shareholders, if any, required by Section 6.2 hereof, a written notice in
accordance with Article 13 of the Georgia Code of such shareholder's intent to
demand payment for such shareholder's Shares if the Merger is effected and who
shall have not voted such Shares in favor of the approval and adoption of this
Agreement (collectively, the "Dissenting Shares") shall not be converted into
the right to receive cash pursuant to Section 2.6, but the holders of such
Dissenting Shares shall be entitled to payment of the fair value of such
dissenting shares in accordance with the provisions of Article 13 of the Georgia
Code; provided, however, that if such shareholder shall waive such shareholder's
right to demand and obtain payment under Article 13 of the Georgia Code or a
court of competent jurisdiction shall determine that such shareholder is not
entitled to the relief provided by said Article 13, then the right of such
holder of Dissenting Shares to be paid the fair value of such shareholders
Dissenting Shares shall cease and such Dissenting Shares shall thereupon be
deemed to have been converted into, as of the Effective Time, the right to
receive cash pursuant to Section 2.6(a) hereof, without any interest thereon,
upon surrender of the certificate or certificates representing such Shares.
(b) The Company shall give Parent (i) prompt notice of any notice or other
instruments received by the Company pursuant to Article 13 of the Georgia Code
and (ii) the opportunity to direct all negotiations and proceedings with respect
to demands for payment for Dissenting Shares. The Company shall not voluntarily
offer to make or make any payment with respect to any demands for payment for
Dissenting Shares and shall not, except with the prior written consent of
Parent, settle or offer to settle any such demands.
(c) Dissenting Shares, if any, shall be canceled after the payment of fair
value in respect thereto has been made to the holder of such shares pursuant to
the Georgia Code.
-9-
<PAGE>
SECTION 2.8. Surrender of Shares; Stock Transfer Books.
(a) Before the Effective Time, the Company shall designate a bank or trust
company to act as agent for the holders of Shares (the "Exchange Agent") to
receive the funds necessary to make the payments contemplated by Section 2.6.
Parent shall, from time to time, deposit, or cause to be deposited, in trust
with the Exchange Agent for the benefit of holders of Shares funds in amounts
and at times necessary for the payments under Section 2.8(b) to which such
holders shall be entitled at the Effective Time pursuant to Section 2.6. Such
funds shall be invested by the Exchange Agent as directed by Parent. Any net
profits resulting from, or interest or income produced by, such investments
shall be payable as directed by Parent.
(b) Each holder of a certificate or certificates representing any Shares
canceled upon the Merger pursuant to Section 2.6(a) may thereafter surrender
such certificate or certificates to the Exchange Agent, as agent for such
holder, to effect the surrender of such certificate or certificates on such
holder's behalf for a period ending six months after the Effective Time.
Purchaser agrees that promptly after the Effective Time it shall cause the
distribution to holders of record of Shares as of the Effective Time of
appropriate materials to facilitate such surrender. Upon the surrender of
certificates representing the Shares, Parent shall cause the Exchange Agent to
pay the holder of such certificates in exchange therefor cash in an amount equal
to the Per Share Amount multiplied by the number of Shares represented by such
certificate. Until so surrendered, each such certificate (other than
certificates representing Dissenting Shares and certificates representing Shares
held by Parent or in the treasury of the Company) shall represent solely the
right to receive the aggregate Per Share Amount relating thereto.
(c) If payment of cash in respect of canceled Shares is to be made to a
Person other than the Person in whose name a surrendered certificate or
instrument is registered, it shall be a condition to such payment that the
certificate or instrument so surrendered shall be properly endorsed or shall be
otherwise in proper form for transfer and that the Person requesting such
payment shall have paid any transfer and other taxes required by reason of such
payment in a name other than that of the registered holder of the certificate or
instrument surrendered or shall have established to the satisfaction of Parent
or the Exchange Agent that such tax either has been paid or is not payable.
(d) At the Effective Time, the stock transfer books of the Company shall be
closed and there shall not be any further registration of transfers of shares of
any shares of capital stock thereafter on the records of the Company. If, after
the Effective Time, certificates for Shares are presented to the
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Surviving Corporation, they shall be canceled and exchanged for cash as provided
in Section 2.6(a). No interest shall accrue or be paid on any cash payable upon
the surrender of a certificate or certificates which immediately before the
Effective Time represented outstanding Shares.
(e) Promptly following the date which is six months after the Effective
Time, the Exchange Agent shall deliver to Parent all cash, certificates and
other documents in its possession relating to the transactions contemplated
hereby, and the Exchange Agent's duties shall terminate. Thereafter, each holder
of a certificate representing Shares (other than certificates representing
Dissenting Shares and certificates representing Shares held by Parent or in the
treasury of the Company) may surrender such certificate to Parent and (subject
to applicable abandoned property, escheat and similar laws) receive in
consideration thereof the aggregate Per Share Amount relating thereto, without
any interest or dividends thereon.
(f) The Per Share Amount paid in the Merger shall be net to the holder of
Shares in cash, subject to reduction only for any applicable federal back-up
withholding or, as set forth in Section 2.8(c), stock transfer taxes payable by
such holder.
SECTION 2.9. Stock Plans.
(a) The Company shall take all actions necessary to provide that, prior to
or upon consummation of the Merger, each then outstanding option to purchase
shares of Company Common Stock (the "Options") granted under any of the
Company's stock option plans referred to in Section 4.2, each as amended
(collectively, the "Option Plans"), and any and all other outstanding options,
stock warrants and stock rights, whether or not granted pursuant to such stock
option plans, whether or not then exercisable or vested, shall be canceled and
shall be of no further force or effect; provided, however, that with respect to
any Options as to which the Per Share Amount exceeds the applicable per share
exercise price, Parent shall promptly following the Effective Time pay (or cause
to be paid) to the holders of such Options an amount in cash equal to, with
respect to each such Option, the product of (1) the amount by which (x) the Per
Share Amount exceeds (y) the applicable per share exercise price, and (2) the
number of shares subject to the Option at the time of such cancellation. Such
amount shall be subject to reduction by applicable tax withholding.
(b) Except as provided herein or as otherwise agreed to by the parties, the
Company shall cause the Option Plans to terminate as of the Effective Time and
the provisions in any other plan, program or arrangement, providing for the
issuance or grant by the Company or any of its subsidiaries of any interest in
respect of the capital stock of the Company or any of its Subsidiaries shall be
deleted as of the Effective Time.
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(c) The Company represents and warrants that all the Option Plans provide
that either (i) the Company can take the actions described in Section 2.9(a)
without obtaining the consent of any holders of Options or (ii) if such consent
is required, the Company will obtain such consents and provide evidence thereof
to Parent at least 10 days prior to the initial expiration of the Offer.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE
PARENT AND PURCHASER
Parent and Purchaser represent and warrant to the Company as follows:
SECTION 3.1. Corporate Organization. Each of Parent and Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has the requisite corporate power
and authority and any necessary governmental authority and approvals to own,
operate or lease the properties that it purports to own, operate or lease and to
carry on its business as it is now being conducted.
SECTION 3.2. Authority Relative to this Agreement. Parent and Purchaser
have the necessary corporate power and authority to enter into this Agreement
and to carry out their obligations hereunder. The execution and delivery of this
Agreement by Parent and Purchaser and the consummation by Parent and Purchaser
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent and Purchaser and no other
corporate proceeding is necessary for the execution and delivery of this
Agreement by Parent or Purchaser, the performance by Parent or Purchaser of
their respective obligations hereunder and the consummation by Parent or
Purchaser of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Parent and Purchaser and constitutes a legal, valid
and binding obligation of each such corporation, enforceable against each of
them in accordance with its terms.
SECTION 3.3. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Parent and Purchaser do
not, and the performance of this Agreement and the transactions contemplated
hereby by Parent and Purchaser will not, (i) conflict with or violate any law,
regulation, court order, judgment or decree applicable to Parent or Purchaser or
by which any of their property is bound or affected, (ii) violate or conflict
with either the Articles of Incorporation or By-Laws or other organizational
documents of either Parent or Purchaser, or (iii) result in any breach of or
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constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination or
cancellation of, or result in the creation of a lien or encumbrance on any of
the property or assets of Parent or Purchaser pursuant to, any contract,
instrument, permit, license or franchise to which Parent or Purchaser is a party
or by which Parent or Purchaser or any of its property is bound or affected,
except for, in the case of clause (i), conflicts, violations, breaches or
defaults which would not prevent or materially delay the consummation of any of
the transactions contemplated by this Agreement.
(b) Except for (i) applicable requirements, if any, of the Exchange Act,
(ii) the pre-merger notification requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), (iii) the filing and
recordation of appropriate merger documents as required by the Georgia Code, and
(iv) filings as may be required by any applicable "blue sky" laws and/or the
rules of the National Association of Securities Dealers, Inc., neither Parent
nor Purchaser is required to submit any notice, report or other filing with any
federal, state or local government or any court, administrative or regulatory
agency or commission or other governmental authority or agency, domestic or
foreign (a "Governmental Entity"), in connection with the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby. Except as set forth in Schedule 3.3, no waiver, consent,
approval or authorization of any Governmental Entity, is required to be obtained
or made by either Parent or Purchaser in connection with its execution, delivery
or performance of this Agreement.
SECTION 3.4. Financing Arrangements. Parent has or will have available to
it funds sufficient to purchase the Shares in accordance with the terms of this
Agreement, pay the amount to which holders of Shares become entitled upon
consummation of the Offer and the Merger and pay all of the fees and expenses it
will incur in connection therewith.
SECTION 3.5. No Prior Activities. Except for obligations or liabilities
incurred in connection with its incorporation or organization or the negotiation
and consummation of this Agreement and the transactions contemplated hereby
(including any financing), Purchaser has not incurred any obligations or
liabilities, and has not engaged in any business or activities of any type or
kind whatsoever or entered into any agreements or arrangements with any Person
or entity.
SECTION 3.6. Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by and
on behalf of Parent or Purchaser.
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SECTION 3.7. Offer Documents; Proxy Statement. None of the information
supplied by Parent, its officers, directors, representatives, agents or
employees (the "Parent Information"), for inclusion in the Proxy Statement (as
defined in Section 4.22), or in any amendments thereof or supplements thereto,
will, on the date the Proxy Statement is first mailed to shareholders, at the
time of the Company Shareholders' Meeting (as defined in Section 4.22) or at the
Effective Time, contain any statement which, at such time and in light of the
circumstances under which it will be made, will be false or misleading with
respect to any material fact, or will omit to state any material fact necessary
in order to make the statements therein not false or misleading or necessary to
correct any statement in any earlier communication with respect to the
solicitation of proxies for the Company Shareholders' Meeting which has become
false or misleading. Neither the Offer Documents nor any amendments thereof or
supplements thereto will, at any time the Offer Documents or any such amendments
or supplements are filed with the SEC or first published, sent or given to the
Company's shareholders, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, Parent and Purchaser do not make any
representation or warranty with respect to any information that has been
supplied by the Company or its accountants, counsel or other authorized
representatives for use in any of the foregoing documents. The Offer Documents
and any amendments or supplements thereto will comply as to form in all material
respects with the provisions of the Exchange Act and the rules and regulations
thereunder.
SECTION 3.8. Company Stock. Prior to the date hereof, neither Parent nor
Purchaser owns any shares of Company Common Stock.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Purchaser as
follows:
SECTION 4.1. Organization and Qualification; Subsidiaries. (a) Each of the
Company and its corporate Subsidiaries (as defined in Section 4.1(d)) (the
"Corporate Subsidiaries") is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and has
the requisite corporate power and authority and any necessary governmental
authority and approvals to own, operate or lease the properties that it purports
to own, operate or lease and to carry on its business as it is now being
conducted, and is duly qualified or licensed as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character of
its properties owned,
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operated or leased or the nature of its activities makes such qualification or
licensing necessary, except for such failure which, when taken together with all
other such failures, would not have a Material Adverse Effect. For purposes of
this Agreement, "Material Adverse Effect" means any change in or effect on the
business of the Company or any of the Subsidiaries that is or is reasonably
likely to be materially adverse to the business, operations, properties
(including intangible properties and leased, owned or managed properties),
condition (financial or otherwise), prospects, assets, liabilities or regulatory
status of the Company and the Subsidiaries, taken as a whole; provided that a
Material Adverse Effect shall not include any change or effect arising solely
from the public announcement of any matters disclosed in the Schedules hereto.
(b) Each of the Company's partnership Subsidiaries (the "Partnership
Subsidiaries") is a partnership or limited partnership duly organized and
validly existing under the laws of the state of its organization, and is duly
licensed or qualified and, to the extent applicable, in good standing, to do
business as a foreign partnership, and is authorized to do business, in each
other jurisdiction in which the character or location of the properties owned,
leased, managed or operated by such entity or the nature of the business
transacted by it makes such licensing or qualification necessary, except where
the failure to be so licensed or qualified, when taken together with all other
such failures, would not have a Material Adverse Effect.
(c) A true and complete list of all the Subsidiaries, together with the
jurisdiction of incorporation or organization of each Subsidiary, the
jurisdictions in which each Subsidiary is licensed or qualified to do business
and the percentage of each Subsidiary's outstanding capital stock or other
equity interests owned by the Company or another Subsidiary, is set forth in
Schedule 4.1 hereto.
(d) For purposes of this Agreement, (x) "Subsidiary" means any corporation
or other legal entity of which the Company (either alone or through or together
with any other Subsidiary) (i) owns, directly or indirectly, more than 50% of
the stock or other equity interests the holders of which are generally entitled
to vote for the election of the board of directors or other governing body of
such corporation or other legal entity, or (ii) in the case of partnerships,
serves as a general partner, or (iii) in the case of a limited liability
company, serves as managing member or owns a majority of the equity interests,
or (iv) otherwise has the ability to elect a majority of the directors, trustees
or managing members thereof, (y) "Provider" means any nursing home, hospital,
home health agency, rehabilitation therapy provider, subacute care facility or
unit, assisted living facility or unit, independent living facility or unit, or
other provider of medical services or products owned, leased or managed by the
Company or any Subsidiary, and (z) "Proprietary Provider" means each Provider
owned or leased (as
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tenant) by the Company or any Subsidiary, and "Managed Provider" means each
Provider managed by the Company or any Subsidiary. Except as expressly otherwise
provided herein, each reference in this Agreement to the Company or a Subsidiary
shall be deemed to include any Proprietary Provider that is owned or leased by
such entity, whether or not so expressed, including, by way of example and not
of limitation, references to contracts and commitments entered into, or
purported to be entered into, in the name of any such Proprietary Provider and
licenses or other property or assets held by, or purported to be held by, any
such Proprietary Provider.
SECTION 4.2. Capitalization. (a) The authorized capital stock of the
Company consists of: (i) 50,000,000 shares of Company Common Stock and (ii)
50,000,000 shares of preferred stock, $.01 par value per share, of the Company
(the "Company Preferred Stock"). As of the date hereof, (A) 11,923,618 shares of
Company Common Stock were issued and outstanding, all of which were duly
authorized, validly issued, fully paid and nonassessable and not subject to
preemptive rights, (B) no shares of Company Preferred Stock were outstanding,
(C) 155,948 shares of Company Common Stock were reserved for issuance upon the
exercise of outstanding Options under the Company's 1994 Employee Stock Option
Plan, (D) 383,162 shares of Company Common Stock were reserved for issuance upon
the exercise of outstanding Options under the Company's 1996 Executive Stock
Plan and (E) 64,341 shares of Company Common Stock were reserved for issuance
upon the exercise of outstanding Options under the Company's 1996 Employee Stock
Option Plan and (F) 1,390,000 shares of Company Common Stock were reserved for
issuance upon the exercise of outstanding Options under the Company's 1997 Stock
Plan. Except as set forth in Schedule 4.2(a) or in this Section 4.2(a): (x)
there are no other options, calls, warrants or rights, agreements, arrangements
or commitments of any character obligating the Company or any of its
Subsidiaries to issue, deliver or sell any shares of capital stock of or other
equity interests in the Company or any of the Subsidiaries; (y) there are no
bonds, debentures, notes or other indebtedness of the Company having the right
to vote (or convertible into, or exchangeable for, securities having the right
to vote) on any matters on which shareholders of the Company may vote; and (z)
there are no shareholders agreements, voting trusts or other agreements or
understandings to which the Company is a party or by which it is bound relating
to the voting, registration or disposition of any shares of the capital stock of
the Company (including any such agreements or understandings that may limit in
any way the solicitation of proxies by or on behalf of the Company from, or the
casting of votes by, the shareholders of the Company with respect to the Merger)
or granting to any person or group of persons the right to elect, or to
designate or nominate for election, a director to the Board of Directors. Except
as set forth in Schedule 4.2(a), there are no programs in place or outstanding
contractual obligations of the Company or any of the Subsidiaries (1) to
repurchase, redeem or otherwise acquire any
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shares of capital stock of the Company or (2) to vote or to dispose of any
shares of the capital stock of any of the Subsidiaries.
(b) All the outstanding capital stock of each of the Corporate Subsidiaries
and all the outstanding partnership (general or limited) units or other
interests of each of the Partnership Subsidiaries are duly authorized, validly
issued, fully paid and nonassessable and not subject to preemptive rights and,
except as set forth in Schedule 4.1, is owned by the Company or a Subsidiary
free and clear of any liens, security interests, pledges, agreements, claims,
charges or encumbrances of any nature whatsoever. There are no existing options,
calls, warrants or other rights, agreements arrangements or commitments of any
character relating to the issued or unissued capital stock or other equity
interests or securities of any Subsidiary. Except for the Subsidiaries and
except as set forth in Schedule 4.2(b), the Company does not directly or
indirectly own any equity or similar interest in, or any interest convertible
into or exchangeable or exercisable for, any equity or similar interest in any
other corporation, partnership, joint venture or other business association or
entity. Except as set forth in Schedule 4.2(b), neither the Company nor any
Subsidiary is under any current or prospective obligation to make a capital
contribution or investment in or loan to, or to assume any liability or
obligation of, any corporation, partnership, joint venture or business
association or entity.
SECTION 4.3. Authority Relative to this Agreement.
(a) The Company has the necessary corporate power and authority to enter
into this Agreement and, subject to obtaining any necessary shareholder approval
of the Merger, to carry out its obligations hereunder. The execution and
delivery of this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company (including without limitation the
unanimous approval of the Special Committee), subject to the approval of the
Merger by the Company's shareholders, if required, in accordance with the
Georgia Code. This Agreement has been duly executed and delivered by the Company
and constitutes a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms. The affirmative vote of the
holders of a majority of the shares of Company Common Stock entitled to vote
approving this Agreement, if required, is the only vote of the holders of any
class or series of the Company's capital stock necessary to approve this
Agreement, the Subscription Agreement and the Voting Agreement and the
transactions contemplated hereby.
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SECTION 4.4. No Conflict; Required Filings and Consents.
(a) Except as set forth in Schedule 4.4 hereto, the execution and delivery
of this Agreement by the Company does not, and the performance of such agreement
by the Company will not, (i) conflict with or violate any law, regulation, court
order, judgment or decree applicable to the Company or any of the Subsidiaries
or by which its or any of their property is bound or affected, (ii) violate or
conflict with the Articles of Incorporation or By-Laws or equivalent
organizational documents of the Company or any Subsidiary, or (iii) result in
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or result in any, or give rise to
any rights of termination, cancellation or acceleration of any obligations or
any loss of any material benefit under or, result in the creation of a lien or
encumbrance on any of the properties or assets (whether owned, leased or
managed) of the Company or any of the Subsidiaries pursuant to, any agreement,
contract, instrument, permit, license or franchise to which the Company or any
of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or its or any of their property (whether owned, leased or managed)
is bound or affected, except for, in the case of clause (i), conflicts,
violations, breaches or defaults which, individually or in the aggregate, would
not be reasonably likely to (x) have a Material Adverse Effect, (y) impair, in
any material respect, the ability of the Company to perform its obligations
under this Agreement or (z) prevent or materially delay the consummation of the
transactions contemplated by this Agreement, the Subscription Agreement or the
Voting Agreement.
(b) Except for (i) applicable requirements, if any, of the Exchange Act,
(ii) the pre-merger notification requirements of the HSR Act, (iii) the filing
and recordation of appropriate merger or other documents as required by the
Georgia Code, (iv) filings as may be required by any "blue sky" laws of various
states and/or the rules of the National Association of Securities Dealers, Inc.,
and (v) as set forth in Schedule 4.4 hereto, the Company and each of the
Subsidiaries are not required to submit any notice, report or other filing with
any Governmental Entity, in connection with the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby. Except as set forth in Schedule 4.4 hereto, no waiver,
consent, approval or authorization of any Governmental Entity, is required to be
obtained or made by the Company in connection with its execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby.
SECTION 4.5. SEC Filings; Financial Statements.
(a) The Company has filed all forms, reports and documents (including all
exhibits thereto) required to be filed with the SEC since July 2, 1997, and
(except for preliminary
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materials) has made available to Parent, in the form filed with the SEC, its (i)
Annual Reports on Form 10-K for the fiscal years ended December 31, 1998 and
December 31, 1997, respectively, (ii) Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1999, June 30, 1999 and September 30, 1999,
(iii) all proxy statements relating to the Company's meetings of shareholders
(whether annual or special) held since July 2, 1997 and (iv) all other reports
or registration statements filed by the Company with the SEC since July 2, 1997
(collectively, the "SEC Reports"). The SEC Reports (i) at the time filed
complied in all material respects with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), or the Exchange Act, as the case may
be, and (ii) did not at the time they were filed contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. None of the
Subsidiaries is required to file any statements or reports with the SEC pursuant
to Sections 13(a) or 15(d) of the Exchange Act.
(b) The consolidated financial statements contained in the SEC Reports were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as may be indicated
in the notes thereto) and fairly presented the consolidated financial position
of the Company and its Subsidiaries as at the respective dates thereof and the
consolidated results of operations and changes in financial position of the
Company and its Subsidiaries for the periods indicated, except that the
unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments (which in the aggregate are not material in
amount) and except as set forth in Schedule 4.5(b).
(c) Set forth in Schedule 4.5(c) is a true and correct copy of the
unaudited consolidated financial statements of the Company and its Subsidiaries
as at December 31, 1999 and for the year then ended (collectively, the "Interim
Financial Statements"). The interim balance sheet included in the Interim
Financial Statements (the "Interim Balance Sheet") was prepared in accordance
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved and fairly presented the consolidated financial
position of the Company and its Subsidiaries as at the respective dates thereof
and the consolidated results of operations and changes in financial position of
the Company and its Subsidiaries for the periods indicated.
(d) Except as (i) set forth in Schedule 4.5(d) or (ii) disclosed in any SEC
Report filed prior to the date of this Agreement, and except for liabilities and
obligations incurred in the ordinary course of business consistent with past
practice since the date of the most recent consolidated balance sheet
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included in the SEC Reports filed and publicly available prior to the date of
this Agreement, the Company and the Subsidiaries have no material liabilities of
any nature (whether accrued, absolute, contingent or otherwise).
SECTION 4.6. Absence of Certain Changes or Events. Except (i) as expressly
permitted or otherwise provided in this Agreement, (ii) as set forth in the SEC
Reports filed prior to the date of this Agreement, (iii) as set forth in the
Interim Financial Statements, or (iv) as set forth in Schedule 4.6 hereto, since
December 31, 1998, the business of the Company and the Subsidiaries has been
conducted in the ordinary course consistent with past practice and there has not
been:
(a) any Material Adverse Effect;
(b) any damage, destruction or loss (whether or not covered by insurance)
with respect to any of the assets of the Company, any of its Subsidiaries or any
Managed Provider having a Material Adverse Effect;
(c) any redemption or other acquisition of Company Common Stock by the
Company or any of the Subsidiaries or any declaration or payment of any dividend
or other distribution in cash, stock or property with respect to Company Common
Stock, except for purchases heretofore made pursuant to the terms of the
Company's employee benefit plans;
(d) any change by the Company in accounting methods, principles or
practices;
(e) any revaluation by the Company of any asset (including, without
limitation, any writing down of the value of inventory or writing off of notes
or accounts receivable), other than in the ordinary course of business
consistent with past practice;
(f) any entry by the Company, any Subsidiary or, to the knowledge of the
Company, any Managed Provider into any commitment or transaction material to the
Company and the Subsidiaries taken as a whole, other than commitments or
transactions entered into in the ordinary course of business consistent with
past practice;
(g) any increase in or establishment of any bonus, insurance, severance,
deferred compensation, pension, retirement, profit sharing, stock option
(including, without limitation, the granting of stock options, stock
appreciation rights, performance awards or restricted stock awards) stock
purchase or other employee benefit plan, or any other increase in the
compensation payable or to become payable to any directors, officers or key
employees of the Company or any Subsidiary, except in the ordinary course of
business consistent with past practice;
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(h) any entry by the Company or any Subsidiary into any employment,
consulting, severance, termination or indemnification agreement with any
director, officer or key employee of the Company or any Subsidiary or any entry
into any such agreement with any other person;
(i) (i) any settlement or compromise by the Company, any Subsidiary or, to
the knowledge of the Company, any Managed Provider of any claim, litigation or
other legal proceeding, other than in the ordinary course of business consistent
with past practice in an amount not involving more than $100,000 or (ii) any
payment, discharge or satisfaction by the Company or any Subsidiary of any other
claims, liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than (A) in the ordinary course of business and
consistent with past practice or (B) with respect to any other such claims,
liabilities or obligations reflected or reserved against in, or contemplated by,
the consolidated financial statements (or the notes thereto) of the Company; or
(j) any agreement, in writing or otherwise, by the Company or any
Subsidiary to take any of the actions described in this Section 4.6 or, to the
knowledge of the Company, by any Managed Provider to take any of the actions
described in Sections 4.6(b), (f) or (i), except as expressly contemplated by
this Agreement.
SECTION 4.7. Litigation. Except as disclosed in Schedule 4.7 hereto, there
are no claims, actions, suits, proceedings or investigations pending or, to the
knowledge of the Company, threatened against or involving the Company, any of
its Subsidiaries or any Provider, or any properties or rights of the Company or
any of its Subsidiaries, by or before any Governmental Entity or arbitrator
which (i) might result in the loss of any Authorization (as defined in Section
4.13(a)) necessary to continue the business of any Provider in substantially the
same manner as it has heretofore operated, (ii) might result in the imposition
upon the Company or any Subsidiary of fines, penalties, judgments or other costs
in excess of $100,000 (after giving effect to amounts covered by insurance), or
(iii) are reasonably likely to have a Material Adverse Effect. Except as set
forth in Schedule 4.7, as of the date hereof, neither the Company nor any of its
Subsidiaries or any Provider nor any of their property is subject to any
judgment in excess of $100,000, order, injunction or decree.
SECTION 4.8. Employee Benefit Plans.
(a) (i) Schedule 4.8(a) sets forth a list of all "employee benefit plans",
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and all other employee benefit or executive
compensation arrangements, perquisite programs or payroll practices, including,
without limitation, any such arrangements
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or payroll practices providing severance pay, sick leave, vacation pay, salary
continuation for disability, retirement benefits, deferred compensation, bonus
pay, incentive pay, stock options (including those held by Directors, employees,
and consultants), hospitalization insurance, medical insurance, life insurance,
scholarships or tuition reimbursements, that are maintained by the Company, any
Subsidiary or any entity within the same "controlled group" as the Company or
Subsidiary, within the meaning of Section 4001(a)(14) of ERISA (a "Company ERISA
Affiliate") or to which the Company, any Subsidiary or Company ERISA Affiliate
is obligated to contribute thereunder for current or former employees of the
Company, any Subsidiary or Company ERISA Affiliate (the "Company Employee
Benefit Plans").
(ii) Schedule 4.8(a)(ii) sets forth, with respect to each Option that
is outstanding under the Option Plans as of the date hereof, the name of
the holder of such Option, the number of shares of Company Common Stock
subject to such Option and the exercise price per share of such Option.
(b) Neither the Company, any Subsidiary nor any Company ERISA Affiliate has
an obligation to contribute to any "multiemployer plan", as defined in Section
4001(a)(3) of ERISA that is subject to Title IV of ERISA (a "Multiemployer
Plan"). Neither the Company, any Subsidiary nor any Company ERISA Affiliate has
withdrawn in a complete or partial withdrawal from any Multiemployer Plan, nor
has any of them incurred any liability due to the termination or reorganization
of any Multiemployer Plan.
(c) None of the Company Employee Benefit Plans is a "single employer plan",
as defined in Section 4001(a)(15) of ERISA, that is subject to Title IV of
ERISA. Neither the Company, any Subsidiary nor any Company ERISA Affiliate has
incurred any outstanding liability under Section 4062 of ERISA to the Pension
Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of
ERISA. Neither the Company, any Subsidiary nor any Company ERISA Affiliate has
engaged in any transaction described in Section 4069 of ERISA. Neither the
Company nor any Subsidiary maintains, or is required, either currently or in the
future, to provide medical benefits to employees, former employees or retirees
after their termination of employment, other than pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985.
(d) Except as set forth in Schedule 4.8(d), each Company Employee Benefit
Plan that is intended to qualify under Section 401 of Internal Revenue Code of
1986, as amended (the "Code"), and each trust maintained pursuant thereto, has
been determined to be exempt from federal income taxation under Section 501 of
the Code by the IRS, and, to the Company's knowledge, nothing has occurred with
respect to the operation of any such Company Employee Benefit Plan that would
cause the loss
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of such qualification or exemption or the imposition of any material liability,
penalty or tax under ERISA or the Code.
(e) All contributions (including all employer contributions and employee
salary reduction contributions) required to have been made under any of the
Company Employee Benefit Plans to any funds or trusts established thereunder or
in connection therewith have been made in all material respects by the due date
thereof.
(f) There has been no material violation of ERISA or the Code with respect
to the filing of applicable reports, documents and notices regarding the Company
Employee Benefit Plans with the Secretary of Labor or the Secretary of the
Treasury or the furnishing of required reports, documents or notices to the
participants or beneficiaries of the Company Employee Benefit Plans.
(g) None of the Company, the Subsidiaries, nor to the Company's knowledge,
the officers of the Company or any of the Subsidiaries or any trustee or
administrator of any Company Employee Benefit Plans, has engaged in a
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) or any other breach of fiduciary responsibility that could subject the
Company, any of the Subsidiaries or any officer of the Company or any of the
Subsidiaries to any material tax or penalty on prohibited transactions imposed
by such Section 4975 or to any material liability under Section 502(i) or (1) of
ERISA.
(h) The Company does not currently have in force any Company-owned life
insurance policies.
(i) Except as set forth in Schedule 4.8(i), neither the Company nor any of
the Subsidiaries is a party to any contract, agreement or other arrangement
which could result in the payment of amounts that could be nondeductible by
reason of Section 162(m) or Section 280G of the Code.
(j) True, correct and complete copies of the following documents, with
respect to each of the Company Benefit Plans, have been delivered or made
available to Parent by the Company: (i) all Company Employee Benefit Plans and
related trust documents, and amendments thereto; (ii) the most recent Forms 5500
and (iii) summary plan descriptions.
(k) There are no pending actions, claims or lawsuits which have been
asserted, instituted or, to the Company's knowledge, threatened, against the
Company Employee Benefit Plans, the assets of any of the trusts under such plans
or the plan sponsor or the plan administrator, or against any fiduciary of the
Company Employee Benefit Plans with respect to the operation of such plans
(other than routine benefit claims).
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(l) Except as set forth in Schedule 4.8(l), all Company Employee Benefit
Plans subject to ERISA or the Code have been maintained and administered, in all
material respects, in accordance with their terms and with all provisions of
ERISA and the Code, respectively, (including rules and regulations thereunder)
and other applicable federal and state laws and regulations and all employees
required to be included as participants by the terms of such plans have been
properly included.
Section 4.9. Properties
(a) Except as set forth in Schedule 4.9(a), the Company and each of the
Subsidiaries has good and marketable title to, or a valid leasehold interest in,
all its properties and assets, free and clear of all liens and other
encumbrances. All tangible personal property, fixtures and equipment which
comprise the assets of the Company and the Subsidiaries, or are otherwise used
in connection with its respective businesses, are in a good state of repair
sufficient for normal operation (ordinary wear and tear excepted) and operating
condition.
(b) Schedule 4.9(b) sets forth a true and complete list and description of
(i) all real property and interests in real property owned in fee by the Company
or any Subsidiary ("Owned Real Property") and (ii) each lease or sublease
relating to Leased Real Property (as defined below) that involves annual
expenditures by the Company or any Subsidiary of $100,000 or more (collectively,
the "Company Material Leases").
(c) Except as set forth in Schedule 4.9(c), there are no violations of any
law, ordinance or regulation (including, without limitation, any building,
planning or zoning law, ordinance or regulation) relating to any of the real
property or interests in real property leased by the Company or any Subsidiary,
as lessee or lessor (the "Leased Real Property"), or relating to any of the
Owned Real Property, or in any case to any buildings or other improvements
thereon (including, without limitation, plumbing, heating, ventilation, air
conditioning, electrical and lighting systems and equipment) which are
reasonably likely to materially and adversely affect the business of any
Proprietary Provider. Except as set forth in Schedule 4.9(c), neither the
Company nor any Subsidiary has assigned its interest under any Company Material
Lease, or subleased all or any part of the space demised thereby, to any third
party.
(d) The Company has, or has caused to be, made available to Parent true and
complete copies of the Company Material Leases and any and all ancillary
documents pertaining thereto (including, but not limited to, all amendments,
consents for alterations and documents recording variations and evidence of
commencement dates and expiration dates). With respect to each of the Company
Material Leases, (i) such lease or sublease is legal, valid, binding,
enforceable and in full force and
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effect, except to the extent that its enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent
transfer, moratorium or other laws relating to or affecting creditors' rights
generally and by general principles of equity, (ii) except as otherwise set
forth in Schedule 4.9(d), such lease or sublease will not cease to be legal,
valid, binding, enforceable and in full force and effect on terms identical to
those currently in effect as a result of the consummation of the transactions
contemplated by this Agreement, the Subscription Agreement or the Voting
Agreement, nor will the consummation of such transactions constitute a breach or
default under such lease or sublease or otherwise give the landlord a right to
terminate such lease or sublease and (iii) neither the Company nor any
Subsidiary knows of, or has given or received notice of, any violation or
default thereunder (nor, to the knowledge of the Company, does there exist any
condition which with the passage of time or the giving of notice or both would
result in such a violation or default thereunder).
(e) All improvements on real property constructed by or on behalf of the
Company or any Subsidiary, to the knowledge of the Company, were constructed in
compliance with applicable laws, ordinances and regulations (including, but not
limited to, any building or zoning laws, ordinances and regulations) affecting
such Owned Real Property or Leased Real Property.
SECTION 4.10. Intellectual Property.
(a) Except as set forth in Schedule 4.10, each of the Company and the
Subsidiaries owns, or is licensed or otherwise possesses rights to use all
patents, trademarks and service marks (registered or unregistered), trade names,
domain names, computer software and copyrights and applications and
registrations therefor (collectively, the "Intellectual Property Rights") that
are used in the business of the Company and the Subsidiaries as currently
conducted.
(b) Schedule 4.10 sets forth a list of all patents, patent applications,
trademark and service mark applications and registrations, registered copyrights
and material trade names and common law trademarks owned anywhere in the world
by the Company or any of the Subsidiaries.
(c) Schedule 4.10 sets forth a list of all material licensing agreements to
which the Company or any of its Subsidiaries is a party relating to the
ownership or use of the Intellectual Property Rights.
(d) Each of the Company and the Subsidiaries owns or has right to use the
Intellectual Property Rights sufficient to allow it to conduct, and continue to
conduct, its business as currently conducted in all material respects, and the
consummation of the transactions contemplated hereby will not alter or impair
such ability in any respect.
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(e) Except as set forth in Schedule 4.10, (i) to the knowledge of the
Company, there are no pending oppositions, cancellations, invalidity
proceedings, interferences or re-examination proceedings with respect to the
Intellectual Property Rights; (ii) neither the Company nor any of the
Subsidiaries has received notice from any other person or entity pertaining to
or challenging the right of the Company or any of its Subsidiaries to use or
register any of the Intellectual Property Rights; and (iii) to the knowledge of
the Company, neither the Company nor any of the Subsidiaries has any pending
claim, and no Person is violating or infringing the rights of the Company and
the Subsidiaries, in connection with the Intellectual Property Rights.
SECTION 4.11. Insurance. Schedule 4.11 sets forth a true and complete list
of all insurance policies carried by, or covering the Company and the
Subsidiaries with respect to their businesses, assets and properties, together
with, in respect of each such policy, the name of the insurer, the policy
number, the type of policy, the amount of coverage and the deductible. True and
complete copies of each such policy have previously been made available to
Parent. All such policies are in full force and effect, and no notice of
cancellation has been given with respect to any such policy. All premiums due on
such policies have been paid in a timely manner and the Company and the
Subsidiaries have complied in all material respects with the terms and
provisions of such policies. The insurance coverage provided by such policies is
customary for the industries in which the Company and the Subsidiaries operate.
SECTION 4.12. Environmental.
Except as set forth in Schedule 4.12:
(a) The Company and the Subsidiaries are and have been in compliance in all
material respects with all applicable Environmental Laws, have obtained all
Environmental Permits and are in compliance with their requirements, and have
resolved all past non-compliance of which the Company is aware with
Environmental Laws and Environmental Permits without any pending, on-going or
future obligation, cost or liability.
(b) Neither the Company nor any of the Subsidiaries has (i) placed, held,
located, released, transported or disposed of any Hazardous Substances on,
under, from or at any of the Company's or any of the Subsidiaries' properties
(whether owned, leased or managed) or any other properties, other than in a
manner that could not, in all such cases taken individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (ii) any
knowledge or reason to know of the presence or threat of release of any
Hazardous Substances on, under or at any of the Company's or any of the
Subsidiaries' properties or any other property but arising from the Company's or
any of the Subsidiaries' current or former properties or
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operations, other than in a manner that could not reasonably be expected to
result in a Material Adverse Effect, or (iii) received any written notice (A) of
any violation of or liability under any Environmental Laws, (B) of the
institution or pendency of any suit, action, claim, proceeding or investigation
by any Governmental Entity or any third party in connection with any such
violation or liability, (C) requiring the response to or remediation of
Hazardous Substances at or arising from any of the Company's or any of the
Subsidiaries' current or former properties or operations or any other
properties, (D) alleging noncompliance by the Company or any of the Subsidiaries
with the terms of any Environmental Permit in any manner reasonably likely to
require material expenditures or to result in material liability or (E)
demanding payment for response to or remediation of Hazardous Substances at or
arising from any of the Company's or any of the Subsidiaries' current or former
properties or operations or any other properties;
(c) No Environmental Law imposes any obligation upon the Company or the
Subsidiaries arising out of or as a condition to any transaction contemplated by
this Agreement, including any requirement to modify or to transfer any permit or
license, any requirement to file any notice or other submission with any
Governmental Entity, the placement of any notice, acknowledgment or covenant in
any land records, or the modification of or provision of notice under any
agreement, consent order or consent decree. No lien or other encumbrance has
been placed upon any of the Company's or the Subsidiaries' properties (whether
owned, leased or managed) under any Environmental Law;
(d) The Company and the Subsidiaries have made available to Parent copies
of any environmental assessment or audit report (including all records
maintained for required environmental compliance) or other similar studies or
analyses in the possession of the Company or the Subsidiaries relating to any
real property currently or formerly owned, leased, managed or occupied by the
Company or the Subsidiaries.
(e) As used in this Agreement, the following terms have the meanings set
forth below:
(i) "Environmental Law" means any law, now or hereafter in effect and
as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment,
relating to pollution or protection of the environment, health or safety or
natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Substances.
(ii) "Environmental Permit" means any permit, approval, identification
number, license or other
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authorization required under any applicable Environmental Law.
(iii) "Hazardous Substances" means (a) petroleum and petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials and polychlorinated biphenyls, and (b) any
other chemicals, materials or substances regulated as toxic or hazardous or
as a pollutant, contaminant or waste under any applicable Environmental
Law.
SECTION 4.13. Governmental Authorizations and Regulations.
(a) Except as set forth in Schedule 4.13, the Company and each Subsidiary
has complied and are currently in compliance with each law, ordinance or
governmental or regulatory rule or regulation, whether federal, state, local or
foreign to which such entity's business, operations, assets or properties is
subject ("Regulations"), except for items of non-compliance (i) which were
identified on a survey report with respect to such Provider, are being cured by
the applicable Provider pursuant to a plan of correction accepted by the
applicable governmental authority, and will not result in the loss or suspension
of, or other action affecting, any Authorization (as defined below) of the
applicable Provider, (ii) are not reasonably likely to materially and adversely
affect the business of any Provider, and (iii) which would not, individually or
in the aggregate, have a Material Adverse Effect. Except as set forth in
Schedule 4.13, each of the Company and the Subsidiaries (or, where required
under applicable law, to the knowledge of the Company, the Managed Providers)
owns, holds, possesses or lawfully uses in the operation of its business all
applicable Authorizations, other than Authorizations which (i) are not necessary
to continue the operation of the business of such Provider in substantially the
same manner as it currently operates and has operated heretofore, or (ii) if not
owned, held, possessed or lawfully used by the Company or such Subsidiary (or by
the applicable Managed Provider), would not, individually or in the aggregate,
have a Material Adverse Effect. As used herein, "Authorizations" means all
licenses, permits, certificates of need, qualifications, registrations,
certifications, provider agreements and other authorizations of any governmental
authority which are required under applicable Regulations for a Provider to
conduct its business and obtain payment for services and goods provided by it
under the Federal Medicare program, the state Medicaid program for each state in
which such Provider operates (the "Applicable Medicaid Programs"), and any other
governmental programs for payment of health care services or goods in which such
Provider purports to participate, other than any of the foregoing which are not
material to the business and operations of the relevant Provider, the Company or
any Subsidiary.
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Except as set forth in Schedule 4.13, all of the Authorizations owned,
held, possessed or lawfully used by the Company or its Subsidiaries (or, where
required under applicable law, to the knowledge of the Company, the Managed
Providers) are valid and in good standing, non-probationary, non-provisional and
in full force and effect. Except as set forth in Schedule 4.13, none of the
Providers is subject to any governmental restrictions on its operations (e.g.,
due to prior survey deficiencies) which adversely affects the conduct of its
business, other than restrictions which apply to all providers of the services
or goods furnished by such Provider in the relevant jurisdiction. Except as set
forth in Schedule 4.13, there are no actions or proceedings to revoke, withdraw,
terminate or suspend any Authorization, neither the Company nor any of its
Subsidiaries has received any notice or other communication threatening any of
the foregoing (other than notices and communications which have been withdrawn
or otherwise resolved), nor does the Company have any knowledge of any reason
why any Authorization is likely not to be renewed by the applicable governmental
authority in the ordinary course.
(b) Other than as set forth in Schedule 4.13, all claims for payment for
services rendered or products sold or supplied by the Company and its
Subsidiaries which have been made to any third-party payor (including, without
limitation, the Federal Medicare program, the Medicaid programs for the states
in which a Provider operates, and any applicable commercial insurance company,
health maintenance organization or preferred provider organization)
(collectively, "Payors"), have been prepared and filed in accordance with all
applicable Regulations and requirements of the Payor, and all such claims have
been prepared in an accurate and complete manner and timely submitted to the
appropriate Payor, except in each case for items of non-compliance (i) which are
not reasonably likely to result in the loss of any Authorization, (ii) are
reasonably likely not to materially and adversely affect the business of any
Provider, and (iii) which would not, individually or in the aggregate, have a
Material Adverse Effect. The Company and/or the Subsidiaries have paid or made
provision to pay through proper recordation any net liability for overpayments
received from any Payor and any similar obligations with respect to any Payor,
in compliance with all applicable Regulations and the requirements of the Payor,
except for items of non-compliance (i) which are not reasonably likely to result
in the loss of any Authorization, (ii) are reasonably likely not to materially
and adversely affect the business of any Provider, and (iii) which would not,
individually or in the aggregate, have a Material Adverse Effect. Without
limitation of the foregoing, except as set forth in Schedule 4.13 hereto neither
the Company nor any of its Subsidiaries has submitted any claim for payment to
any Payor in violation of any applicable Federal, state or local false claim or
fraud law or regulation, including without limitation the Federal False Claims
Act, 31 U.S.C. ss. 3729.
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The Company and its Subsidiaries have made available to Parent or its
counsel true and complete copies of all cost reports requested by same, together
with all relevant schedules, correspondence, notices of program reimbursement,
audit reports, settlement agreements and similar materials relating thereto. The
Company and its Subsidiaries have timely filed all required cost reports with
respect to the Medicare program and each state Medicaid program in which any of
the Providers participates. Schedule 4.13 sets forth for each Provider the years
for which cost reports remain to be settled, specifying the Payor at issue and
the status of the matter, including identification of any pending reimbursement
appeals.
(c) Schedule 4.13 sets forth a complete and accurate statement, for each
Facility (as defined below), of (i) the bed categories for (e.g., nursing beds,
skilled nursing beds, rehabilitation hospital beds) for which such Facility is
licensed or qualified to participate under the Medicare program and the
Applicable Medicaid Programs, (ii) the number of beds in each such category,
(iii) the number of beds in each such category that are available for use in
such Facility, and (iv) the number of patients as of February 9, 2000 admitted
in each Facility (A) who as of such date qualify for Medicare and whose stay at
the Facility is being paid for under Part A of the Medicare program, (B) who
qualify for the Applicable Medicaid Program and whose stay at the Facility is
being paid for by the Applicable Medicaid Program, (C) whose stay at the
Facility is being paid for by another governmental Payor (e.g., the Veteran's
Administration or CHAMPUS), and (D) whose stay at the Facility is being paid for
by the patient, the patient's relatives or another non-Payor private party. As
used herein "Facility" means each nursing facility, hospital, assisted living
facility, independent living facility or other inpatient Provider owned, leased
or managed by the Company or its Subsidiaries.
SECTION 4.14. Condition of Facilities. Except as set forth in Schedule
4.14, to the knowledge of the Company, each of the Facilities is in a good state
of repair and condition, there are no dangerous conditions or defects existing
upon or in any of the Facilities, and there are no structural defects in any
Facility that could adversely affect the operation of such Facility as conducted
presently and in the past.
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SECTION 4.15. Material Contracts.
(a) Except as set forth in the SEC Reports filed prior to the date of this
Agreement, in Schedule 4.15 or otherwise expressly provided in this Agreement,
neither the Company nor any of the Subsidiaries is a party to or bound by:
(i) any "material contract" (as defined in Item 601(b)(10) of
Regulation S-K of the SEC);
(ii) any contract or agreement for the purchase or lease (as lessee)
of materials or personal property from any supplier or for the furnishing
of services to the Company or any Subsidiary that involves or is likely to
involve future aggregate payments by the Company or any of the Subsidiaries
of more than (x) $300,000 or (y) $100,000 in any year;
(iii) any contract or agreement for the sale, license or lease (as
lessor) by the Company or any Subsidiary of services, materials, products,
supplies or other assets, owned or leased by the Company or the
Subsidiaries, that involves or is likely to involve future aggregate
payments to the Company or any of the Subsidiaries of more than (x)
$300,000 or (y) $100,000 in any year
(iv) any contract, agreement or instrument relating to or evidencing
indebtedness for borrowed money of the Company or any Subsidiary;
(v) any non-competition agreement or any other agreement or obligation
which purports to limit in any respect the manner in which, or the
localities in which, the business of the Company or the Subsidiaries may be
conducted;
(vi) any agreement with any present or former affiliates of the
Company;
(vii) any partnership, joint venture, strategic alliance or
cooperation agreement (or any agreement similar to any of the foregoing);
(viii) any voting or other agreement governing how any Shares shall be
voted;
(ix) any agreement with any shareholders of the Company;
(x) any agreement with any Managed Provider, including without
limitation any such management agreement, employee lease agreement, billing
services agreement, option agreement or evidence of indebtedness; or
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(xi) any contract or other agreement which would prohibit or
materially delay the consummation of the Merger or any of the transactions
contemplated by this Agreement.
The foregoing contracts and agreements to which the Company or any Subsidiary
are parties or are bound are collectively referred to herein as "Company
Material Contracts."
(b) Each Company Material Contract is valid and binding on the Company (or,
to the extent a Subsidiary is a party, such Subsidiary) and is in full force and
effect, and the Company and each Subsidiary have performed, in all material
respects, all obligations required to be performed by them to date under each
Company Material Contract, except where such noncompliance, individually or in
the aggregate, would not have a Material Adverse Effect. The Company has, or has
caused to be, made available to Parent or its counsel true and complete copies
of the Company Material Contracts requested by same and any and all ancillary
documents pertaining thereto (including, but not limited to, all amendments and
waivers). Except as otherwise set forth in Schedule 4.15(b), each Company
Material Contract will not cease to be legal, valid, binding, enforceable and in
full force and effect on terms identical to those currently in effect as a
result of the consummation of the transactions contemplated by this Agreement
(except to the extent that its enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, fraudulent transfer,
moratorium or other laws relating to or affecting creditors' rights generally
and by general principles of equity), nor will the consummation of such
transactions constitute a breach or default under such lease or sublease or
otherwise give the landlord a right to terminate such lease or sublease. Except
as set forth in Schedule 4.15(b), neither the Company nor any Subsidiary knows
of, or has given or received notice of, any violation or default under (nor, to
the knowledge of the Company, does there exist any condition which with the
passage of time or the giving of notice or both would result in such a violation
or default under) any Company Material Contract.
(c) Except as disclosed in the SEC Reports filed prior to the date of this
Agreement or in Schedule 4.15 or as expressly provided for in this Agreement,
neither the Company nor any of the Subsidiaries is a party to any oral or
written (i) employment or consulting agreement that cannot be terminated on
thirty days' or less notice, (ii) agreement with any officer or other key
employee of the Company or any of the Subsidiaries the benefits of which are
contingent or vest, or the terms of which are materially altered, upon the
occurrence of a transaction involving the Company or any the Subsidiaries of the
nature contemplated by this Agreement, the Subscription Agreement or the Voting
Agreement, (iii) agreement with respect to any officer or other key employee of
the Company or any of the Subsidiaries providing any term of employment or
compensation guarantee or (iv) stock or stock purchase plan (other than the
Option Plans),
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any of the benefits of which will be increased, or the vesting of the benefits
of which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement, the Subscription Agreement or the Voting
Agreement or the value of any of the benefits of which will be calculated on the
basis of any of such transactions.
SECTION 4.16. Conduct of Business.
Except as set forth in Schedule 4.16, the business and operations of the
Company and the Subsidiaries are not being conducted in default or violation of
any term, condition or provision of (i) their respective Articles of
Incorporation or By-Laws or similar organizational documents, or (ii) any note,
bond, mortgage, indenture, contract, agreement, lease or other instrument or
agreement of any kind to which the Company or any of the Subsidiaries is now a
party or by which the Company or any of the Subsidiaries or any of their
respective properties or assets may be bound, except, with respect to the
foregoing clause (ii), defaults or violations that would not, individually or in
the aggregate, have a Material Adverse Effect.
SECTION 4.17. Fraud and Abuse. Except as set forth in Schedule 4.17,
neither the Company nor any Subsidiary or affiliate thereof or any of their
respective partners, officers and directors, or, to the knowledge of the
Company, any person who provides professional services on behalf of or under
agreements with the Company, any Subsidiary or any affiliate has engaged in any
activities which are prohibited under the federal Medicare or federal or state
Medicaid statutes, including, without limitation, 42 U.S.C. Sections 1320a-7,
1320a-7a and 1320a-7b, the federal CHAMPUS statute, 10 U.S.C. Section 1071 et
seq., the Federal Civil False Claims Act, 31 U.S.C. Section 3729 et seq., or the
regulations promulgated pursuant to such statutes or which are prohibited by
rules of professional conduct, including but not limited to the following:
(a) knowingly and willfully making or causing to be made false statement or
representation of a material fact in any application for any benefit or payment;
(b) knowingly and willfully making or causing to be made any false
statement or representation of a material fact for use in determining rights to
any benefit or payment;
(c) presenting or causing to be presented a claim for services under
Medicare, any state Medicaid program, CHAMPUS or any other Federal health care
program (as used herein, such term shall have the meaning specified in 42
U.S.C.ss. 1320a-7b(f)) that is for an item or service that is known or could be
known to be (i) not provided as claimed, or (ii) false or fraudulent;
(d) failing to disclose knowledge by a claimant of the occurrence of any
event affecting the initial or continued right
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to any benefit or payment on its own behalf or on behalf of another, with intent
to fraudulently secure such benefit or payment;
(e) knowingly and willfully offering, paying, soliciting or receiving any
remuneration (including any kickback, bribe or rebate), directly or indirectly,
overtly or covertly, in cash or in kind (i) in return for referring an
individual to a person for the furnishing or arranging for the furnishing of any
item or service for which payment may be made in whole or in party by CHAMPUS,
Medicare, any state Medicaid program, or any other Federal health care program,
or (ii) in return for purchasing, leasing or ordering or arranging for or
recommending purchasing, leasing or ordering any good, Provider, service or item
for which payment may be made in whole or in part by CHAMPUS, Medicare, any
state Medicaid program or any other Federal health care program; or
(f) knowingly and willfully making or causing to be made or inducing or
seeking to induce the making of any false statement or representation (or
omitting to state a fact required to be stated therein or necessary to make the
statements contained therein not misleading) of a material fact with respect to
(i) the conditions or operations of a Provider in order that the Provider may
qualify for certification under CHAMPUS, Medicare, a state Medicaid program or
another Federal health care program, or (ii) information required to be provided
under Section 1124A of the Social Security Act (42 U.S.C. ss. 1320a-3).
SECTION 4.18. Health Professional's Financial Relationships; Disqualified
Individuals. (a) The operations of the Company and the Subsidiaries are and at
all times have been in compliance with all applicable Regulations regarding
health professional self-referrals, including without limitation 42 U.S.C. ss.
1395nn (commonly known as the "Stark Statute") and 42 U.S.C.ss. 1396b.
(b) Except as set forth in Schedule 4.18, none of the Company, any of its
Subsidiaries or, to the knowledge of the Company, any Managed Provider, nor
their respective officers, directors, trustees, partners, members, managers,
employees or contractors, has been charged with or convicted of any Medicare,
Medicaid or other Federal health care program-related offense, or has been
debarred, excluded or suspended from participation in Medicare, Medicaid or any
other Federal health care program, or is currently listed on the General
Services Administration list of parties excluded from Federal procurement
programs and non-procurement programs. Except as set forth in Schedule 4.18, to
the knowledge of the Company and its Subsidiaries, none of the Company, any of
its Subsidiaries or any Managed Provider, nor their respective officers,
directors, trustees, partners, members, managers, employees or contractors, has
been investigated for any Medicare, Medicaid or other Federal health care
program-related offense, or is currently under sanction,
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exclusion or investigation (civil or criminal) by any Federal or state
enforcement, regulatory, administrative or licensing authority.
SECTION 4.19. Taxes.
(a) Except as set forth in Schedule 4.19, all Tax Returns (as defined
below) by or on behalf of the Company or any Subsidiary or any affiliated,
combined or unitary group of which the Company or any Subsidiary is or was a
member have been duly and timely filed with the appropriate taxing authorities
and were, in all material respects, true, complete and correct.
(b) Except as set forth in Schedule 4.19, the Company and each Subsidiary
has paid to the appropriate taxing authority on its behalf, within the time and
in the manner prescribed by law, all material Taxes (as defined below) for which
it is liable.
(c) The Company and each Subsidiary has established on its books and
records adequate reserves for the payment of all Taxes for which it is liable
which are not yet due and payable, and with respect to any such Taxes which have
been proposed, assessed or asserted against them.
(d) The Company and each Subsidiary has complied in all respects with all
applicable laws, rules and regulations relating to the payment and withholding
of Taxes for which it is liable (including, without limitation, withholding of
such Taxes pursuant to sections 1441 and 1442 of the Code or similar provisions
under any state, local or foreign laws, and has, within the time and in the
manner prescribed by law, withheld and paid over to the appropriate taxing
authorities all amounts required to be so withheld and paid over under all
applicable domestic and foreign laws.
(e) Except as set forth in Schedule 4.19, neither the Company nor any
Subsidiary has requested any extension of time within which to file any Tax
Return in respect of any taxable year, which Tax Return has not since been
filed.
(f) Except as set forth in Schedule 4.19, there are no outstanding waivers
or comparable consents that have been given by the Company or any Subsidiary or
with respect to any Tax Return of the Company or any Subsidiary regarding the
application of any statute of limitations with respect to any Taxes or Tax
Returns of the Company or any such Subsidiary.
(g) Except as set forth in Schedule 4.19 (which shall set forth the nature
of the proceeding, the type of return, the deficiencies claimed, asserted,
proposed or assessed and the amount thereof, and the taxable year in question),
no United States federal, state, local or foreign audits, investigations, other
administrative proceedings or court proceedings are
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presently pending against the Company or any Subsidiary that could materially
affect the liability for Taxes of the Company or any Subsidiary or against the
Company or any Subsidiary with regard to any Taxes or Tax Returns of the Company
or any Subsidiary and no notification has been received by the Company or any
Subsidiary that such an audit, investigation or other proceeding is pending or
threatened.
(h) The Company and each Subsidiary (i)are members of an affiliated group
of corporations within the meaning of section 1504(a) of the Code; and such
affiliated group filed a consolidated return with respect to United States
federal income taxes and (ii) neither the Company nor any Subsidiary has
liability for the Taxes of any person (other than members of the affiliated
group described in clause (i) of this Section 4.19(h)) under Treasury
Regulations section 1.1502-6 (or a similar or corresponding provision of state,
local, or foreign law);
(i) Except as set forth in Schedule 4.19, there are no encumbrances for
Taxes upon the assets or properties of the Company or any Subsidiary except for
statutory encumbrances for Taxes not yet due.
(j) Neither the Company or any Subsidiary is a party to, is bound by or has
an obligation under any Tax sharing agreement, Tax indemnification agreement,
Tax allocation agreement or similar contract or arrangement (including any
agreement, contract or arrangement providing for the sharing or ceding of
credits or losses) or has a potential liability or obligation to any person as a
result of or pursuant to any such agreement, contract, arrangement or
commitment.
(k) Except as set forth in Schedule 4.19, neither the Company nor any
Subsidiary is a party to any agreement, plan, contract or arrangement that would
result, individually or in the aggregate, in the payment of any "excess
parachute payments" within the meaning of section 280G of the Code or similar
provision or other law.
(l) Except as set forth in Schedule 4.19, no jurisdiction where the Company
or any Subsidiary has not filed a Tax Return has made a claim that the Company
or such Subsidiary is required to file a Tax Return in such jurisdiction.
(m) The Company and each Subsidiary have previously delivered or made
available to Purchaser complete and accurate copies of each of (i) all audit
reports, letter rulings and technical advice memoranda relating to United States
federal, state, local or foreign Taxes due with respect to the income or
business of the Company or any Subsidiary, (ii) all income Tax Returns filed
with any taxing authority (or the relevant portions of any combined,
consolidated, or unitary Tax Return filed in any jurisdiction of which the
Company or any Subsidiary is a member, including, without limitation,
information relating to the
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computation of taxable income) filed by or on behalf of the Company or any
Subsidiary in the last six years, (iii) any closing agreement, settlement
agreement or similar agreement or arrangement entered into by or on behalf of
the Company or any Subsidiary with any taxing authority, and (iv) any Tax
sharing agreement, Tax indemnification agreement or similar contract or
arrangement entered into by or on behalf of the Company or any Subsidiary.
(n) For purposes of this Agreement, "Taxes" shall mean all taxes, charges,
fees, levies or other assessments, including, without limitation, all net
income, gross income, gross receipts, sales, use, ad valorem, goods and
services, capital, transfer, franchise, profits, license, withholding, payroll,
employment, employer health, excise, severance, stamp, occupation, real and
personal property, social security, estimated, recording, gift, value assessed,
windfall profits or other taxes, customs duties, fees, assessments or charges of
any kind whatsoever, whether computed on a separate, consolidated, unitary,
combined or other basis, together with any interest, fines, penalties, additions
to tax or other additional amounts imposed by any taxing authority (domestic or
foreign). For purposes of this Agreement, "Tax Return" shall mean any return,
declaration, report, estimate, information or other document (including any
documents, statements or schedules attached thereto) required to be filed with
any federal, state, local or foreign tax authority with respect to Taxes.
SECTION 4.20. Labor Relations. Except as set forth in the SEC Reports or
Schedule 4.20: (i) each of the Company and the Subsidiaries is, and has at all
times been, in material compliance with all applicable laws, rules, regulations
and orders respecting employment and employment practices, terms and conditions
of employment, wages, hours or work and occupational safety and health, and is
not engaged in any unfair labor practices as defined in the National Labor
Relations Act or other applicable law; (ii) there is no labor grievance,
arbitration, strike, slowdown, stoppage or lockout pending, or, to the knowledge
of the Company, threatened against or affecting the Company or any of the
Subsidiaries; (iii) neither the Company nor any of its Subsidiaries is a party
to or bound by any collective bargaining or similar agreement with any union or
other labor organization or is engaged in any labor negotiations with any labor
union; (iv) there are no proceedings pending between the Company and any of the
Subsidiaries or any of their respective employees before any federal or state
agency; and (v) to the knowledge of the Company, there are no activities or
proceedings of any labor union to organize any non-union employees of the
Company or any of the Subsidiaries.
SECTION 4.21. Transactions with Affiliates. Except as disclosed in Schedule
4.21 or the SEC reports filed prior to the date of this Agreement, no present or
former affiliate of the Company has, or since December 31, 1998 has had, (i) any
interest
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in any property (whether real, personal or mixed and whether tangible or
intangible) used in or pertaining to any of the businesses of the Company or any
of the Subsidiaries, (ii) has had business dealings or a material financial
interest in any transaction with the Company or any of the Subsidiaries (other
than compensation and benefits received in the ordinary course of business as an
employee or director of the Company or any of the Subsidiaries) or (iii) an
equity interest or any other financial or profit interest in any Person that has
had business dealings or a material financial interest in any transaction with
the Company or any of the Subsidiaries.
SECTION 4.22. Offer Documents; Proxy Statement. The Schedule 14D-9 and the
Schedule 13E-3 will comply in all material respects with the Exchange Act and
the rules and regulations thereunder. Neither the Schedule 14D-9, the Schedule
13E-3 nor any of the information relating to the Company or its affiliates
provided by or on behalf of the Company specifically for inclusion in the
Schedule TO, the Schedule 13E-3 or the Offer Documents will, at the respective
times the Schedule 14D-9, the Schedule TO and the Offer Documents or any
amendments or supplements thereto are filed with the SEC and are first
published, sent or given to shareholders of the Company, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading. No
representation is made by the Company with respect to written information
supplied by Parent or Purchaser specifically for inclusion in the Schedule 14D-9
or the Schedule 13E-3. The proxy statement to be sent to the shareholders of the
Company in connection with the meeting of the Company's shareholders to consider
the Merger (the "Company Shareholders' Meeting") or the information statement to
be sent to such shareholders, as appropriate (such proxy statement or
information statement, as amended or supplemented, is herein referred to as the
"Proxy Statement"), will comply in all material respects with the applicable
requirements of the Exchange Act and the rules and regulations thereunder,
except that no representation or warranty is being made by the Company with
respect to Parent Information. The Proxy Statement will not, at the time the
Proxy Statement (or any amendment or supplement thereto) is filed with the SEC
or first sent to shareholders, at the time of the Company Shareholders Meeting
or at the Effective Time, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
SECTION 4.23. Brokers. No broker, finder or investment banker (other than
SunTrust Equitable Securities and J.P. Morgan) is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by and on behalf of
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the Company. The Company has heretofore furnished to Parent true and complete
copies of all agreements and other arrangements between the Company and SunTrust
Equitable Securities and J.P. Morgan.
SECTION 4.24. Control Share Acquisition. Neither Parts 2 nor 3 of Article
11 of the Georgia Code nor any other "fair price", "moratorium", "control share
acquisition", "interested shareholder" or similar antitakeover statute or
regulation enacted under Georgia law applicable to the Company or any of its
Subsidiaries is applicable to the Offer, the Merger, this Agreement, the
Subscription Agreement or the Voting Agreement or any of the transactions
contemplated by this Agreement, the Subscription Agreement or the Voting
Agreement.
SECTION 4.25. Y2K Compliance. Except as set forth in the SEC Reports, all
items, products, software, components and systems used in and material to the
operation of the business of the Company and the Subsidiaries, which incorporate
the processing of dates or date-related data (including, but not limited to,
representing, calculating, comparing and sequencing), including, but not limited
to, computer systems, infrastructure items, software applications, hardware and
related equipment and utilities, developed, in whole or part, by the Company or
any of the Subsidiaries are currently Y2K-compliant. Except as set forth in
Schedule 4.22, the Company has obtained commitments that all vendors that are
material to the Company and the Subsidiaries are Y2K-compliant.
SECTION 4.26. Disclosure. No representation or warranty by the Company in
this Agreement and no statement contained in any document (including, without
limitation, the Schedules hereto), certificate, or other writing furnished or to
be furnished by the Company to Parent pursuant to the provisions hereof or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of material facts or omits or will omit to state any
material fact necessary, in light of the circumstances under which it was made,
in order to make the statements herein or therein not misleading.
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ARTICLE V.
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.1. Conduct of Business by the Company Pending the Closing. From
the date of this Agreement to the Effective Time, except as expressly
contemplated by this Agreement, the Company shall, and shall cause each of the
Subsidiaries to (i) carry on its respective businesses in the ordinary course,
(ii) use all reasonable best efforts to preserve intact its current business
organizations and keep available the services of its current officers and key
employees, (iii) use all reasonable best efforts to preserve its relationships
with customers, suppliers, third party payors and other Persons with which it
has business dealings, (iv) comply in all material respects with all laws and
regulations applicable to it or any of its properties, assets or business and
(v) maintain in full force and effect all Authorizations necessary for such
business. Without limiting the generality of the foregoing, except as (x)
expressly contemplated by this Agreement or (y) set forth in Schedule 5.1, the
Company shall not, and shall cause each of the Subsidiaries not to:
(a) amend its Articles of Incorporation or By-Laws or similar
organizational documents or change the number of directors constituting its
entire board of directors;
(b) (i)(A) declare, set aside or pay any dividend or other distribution
payable in cash, stock or property with respect to its capital stock or other
equity interests, except that a wholly owned Subsidiary may declare and pay a
dividend or make advances to its parent or the Company or (B) redeem, purchase
or otherwise acquire, directly or indirectly, any of its capital stock or other
securities; (ii) issue, sell, pledge, dispose of or encumber any (A) additional
shares of its capital stock or other equity interests, (B) securities
convertible into or exchangeable for, or options, warrants, calls, commitments
or rights of any kind to acquire, any shares of its capital stock or other
equity interests, or (C) of its other securities, other than Shares issued upon
the exercise of Options outstanding on the date hereof in accordance with the
Option Plans as in effect on the date hereof; or (iii) split, combine or
reclassify any of its outstanding capital stock or other equity interests;
(c) acquire or agree to acquire (A) by merging or consolidating with, or by
purchasing a substantial portion of the assets of, or by any other manner, any
business or any corporation, partnership, joint venture, association or other
business organization or division thereof (including entities which are
Subsidiaries) or (B) any assets, including real estate, in excess of $100,000,
except purchases in the ordinary course of business consistent with past
practice;
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(d) authorize or make any single capital expenditure in excess of $50,000
or capital expenditures in excess of $500,000 in the aggregate;
(e) except in the ordinary course of business, amend or terminate any
Company Material Contract, or waive, release or assign any material rights or
claims;
(f) transfer, lease, license, sell, mortgage, pledge, dispose of, or
encumber any property or assets other than in the ordinary course of business
and consistent with past practice;
(g) (i) enter into or amend any employment or severance agreement with or,
except in accordance with the existing policies of the Company, grant any
severance or termination pay to any officer, director or key employee of the
Company or any Subsidiary; or (ii) hire or agree to hire any new or additional
key employees or officers;
(h) except as required to comply with applicable law, (A) adopt, enter
into, terminate, amend or increase the amount or accelerate the payment or
vesting of any benefit or award or amount payable under any Company Employee
Benefit Plan or other arrangement for the current or future benefit or welfare
of any director, officer or current or former employee, (B) increase in any
manner the compensation or fringe benefits of, or pay any bonus to, any
director, officer or, other than in the ordinary course of business consistent
with past practice, employee, (C) pay any benefit not provided for under any
Benefit Plan, (D) grant any awards under any bonus, incentive, performance or
other compensation plan or arrangement or Company Employee Benefit Plan
(including the grant of stock options, stock appreciation rights, stock based or
stock related awards, performance units or restricted stock, or the removal of
existing restrictions in any Company Employee Benefit Plans or agreements or
awards made thereunder) or (E) take any action to fund or in any other way
secure the payment of compensation or benefits under any employee plan,
agreement, contract or arrangement or Company Employee Benefit Plan;
(i) (i) incur or assume any long-term debt, or except in the ordinary
course of business in amounts consistent with past practice, incur or assume any
short-term indebtedness; (ii) incur or modify any material indebtedness or other
liability; (iii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other Person, except in the ordinary course of business and consistent with
past practice; (iv) make any loans, advances or capital contributions to, or
investments in, any other Person (other than to wholly owned Subsidiaries or
customary loans or advances to employees in accordance with past practice); (v)
settle any claims other than in the ordinary course of business, in accordance
with past practice, and without
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admission of liability; or (vi) enter into any material commitment or
transaction;
(j) make, revoke or change the accounting methods, including accounting
methods with respect to Taxes, used by it unless required by generally accepted
accounting principles;
(k) make any Tax election or settle or compromise any Tax liability;
(l) (i) settle or compromise any claim, litigation or other legal
proceeding, other than in the ordinary course of business consistent with past
practice in an amount not involving more than $100,000 or (ii) pay, discharge or
satisfy any other claims, liabilities or obligations (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction of (A) any such other claims, liabilities or
obligations, in the ordinary course of business and consistent with past
practice, or (B) of any such other claims, liabilities or obligations reflected
or reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) of the Company;
(m) except in the ordinary course of business consistent with past
practice, waive the benefits of, or agree to modify in any manner, any
confidentiality, standstill or similar agreement to which the Company or any
Subsidiary is a party;
(n) permit any insurance policy naming the Company or any Subsidiary as a
beneficiary or a loss payable payee to be canceled or terminated without notice
to Parent, except in the ordinary course of business and consistent with past
practice;
(o) take or omit to take any action which would make any of the
representations or warranties of the Company contained in this Agreement untrue
and incorrect in any material respect as of the date when made if such action
had then been taken or omitted, or would result in any of the conditions set
forth in Annex I hereto or the conditions set forth in Article VII hereof not
being satisfied; or
(p) enter into an agreement, contract, commitment or arrangement to do any
of the foregoing, or to authorize, recommend, propose or announce an intention
to do any of the foregoing.
SECTION 5.2. No Solicitation. (a) The Company shall not, and it shall cause
the Subsidiaries and the officers, directors, employees, agents and
representatives of the Company or any of the Subsidiaries (collectively, the
"Company Representatives") not to, (i) solicit or initiate, or encourage,
directly or indirectly, any inquiries regarding or the submission of, any
Takeover Proposal (as defined below), (ii) participate in any discussions or
negotiations regarding, or furnish to any
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Person any information or data with respect to, or take any other action to
knowingly facilitate the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Takeover Proposal or (iii) enter into any
agreement with respect to any Takeover Proposal or approve or resolve to approve
any Takeover Proposal; provided, however, that nothing contained in this Section
5.2 or any other provision hereof shall prohibit the Company or the Board of
Directors from (A) taking and disclosing to the Company's shareholders a
position with respect to a tender or exchange offer by a third party pursuant to
Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (B) making such
disclosure to the Company's shareholders as, in the good faith judgment of the
Board of Directors, after receiving advice from outside counsel, is required
under applicable law, provided that the Company may not, except as permitted by
Section 5.2(b), withdraw or modify, or propose to withdraw or modify, its
approval or recommendation of this Agreement, the Subscription Agreement or the
Voting Agreement or the transactions contemplated hereby or thereby, including
the Offer or the Merger, or approve or recommend, or propose to approve or
recommend any Takeover Proposal, or enter into any agreement with respect to any
Takeover Proposal. Upon execution of this Agreement, the Company shall, and it
shall cause the Company Representatives to, immediately cease any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing, and it shall promptly request that each
Person who has heretofore executed a confidentiality agreement in connection
with such Person's consideration of a Takeover Proposal return all confidential
information heretofore furnished to such Person by or on behalf of the Company.
Notwithstanding the foregoing, prior to the time of acceptance of Shares for
payment pursuant to the Offer, the Company may furnish information concerning
its business, properties or assets to any Person or group pursuant to
confidentiality agreements with terms and conditions similar to the
Confidentiality Agreement, dated April 27, 1999 (the "Confidentiality
Agreement"), between the Company and E.M. Warburg, Pincus & Co., LLC ("Warburg")
(provided that such confidentiality agreements may not include any provision
granting any such Person or group an exclusive right to negotiate with the
Company), and may negotiate and participate in discussions and negotiations with
such Person or group concerning a Takeover Proposal if: (x) such Person or group
has submitted an unsolicited bona fide written proposal which is, or is
reasonably likely to result in, a Superior Proposal; and (y) the Board of
Directors determines in good faith, based upon advice of outside counsel, that
such action is required to discharge the Board's fiduciary duties to the
Company's shareholders under the Georgia Code. The Company shall not release any
third party from, or waive any provision of, any such confidentiality agreement
or any other confidentiality or standstill agreement to which the Company is a
party.
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The Company will promptly notify Parent of the existence of any proposal,
discussion, negotiation or inquiry received by the Company, and the Company will
immediately communicate to Parent the terms of any proposal, discussion,
negotiation or inquiry which it may receive (and will promptly provide to Parent
copies of any written materials received by the Company in connection with such
proposal, discussion, negotiation or inquiry) and the identity of the Person
making such proposal or inquiry or engaging in such discussion or negotiation.
The Company will promptly provide to Parent any non-public information
concerning the Company provided to any other Person which was not previously
provided to Parent. The Company will keep Parent fully informed of the status
and details (including amendments or proposed amendments) to any such Takeover
Proposal.
As used in this Agreement, the following terms have the meanings set forth
below:
"Superior Proposal" means an unsolicited bona fide written proposal by a
Third Party to acquire, directly or indirectly, for consideration consisting
solely of cash and/or marketable securities, all the Shares then outstanding or
all or substantially all of the assets of the Company, and (i) otherwise on
terms which the Board of Directors determines in good faith to be more favorable
to the Company's shareholders than the Offer and the Merger (based on a written
opinion of the Company's independent financial advisor that the value of the
consideration provided for in such proposal exceeds the value of the
consideration provided for in the Offer and the Merger), (ii) for which
financing, to the extent required, is then committed, (iii) which, in the good
faith reasonable judgment of the Board of Directors of the Company, is
reasonably likely to be consummated without undue delay and (iv) which is
subject to no more conditions than those set forth in Annex I hereto.
"Takeover Proposal" means any inquiry, proposal or offer, whether in
writing or otherwise, from a Third Party to acquire beneficial ownership (as
determined under Rule 13d-3 of the Exchange Act) of all or a material portion of
the assets of the Company or any of its Subsidiaries or 15% or more of any class
of equity securities of the Company or any of the Subsidiaries pursuant to a
merger, consolidation or other business combination, sale of shares of capital
stock, sale of assets, tender offer, exchange offer or similar transaction with
respect to either the Company or any of the Subsidiaries, including any single
or multi-step transaction or series of related transactions, which is structured
to permit such Third Party to acquire beneficial ownership of any material
portion of the assets of, or 15% or more of the equity interest in either the
Company or any of the Subsidiaries.
"Third Party" means any Person or group other than Parent, Purchaser or any
affiliate thereof.
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(b) Except as set forth in this Section 5.2(b), neither the Board of
Directors nor any committee thereof shall (i) withdraw or modify, or propose to
withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or
recommendation by the Board of Directors or any such committee of this
Agreement, the Subscription Agreement or the Voting Agreement or the
transactions contemplated hereby or thereby, including the Offer or the Merger,
(ii) approve or recommend, or propose to approve or recommend, any Takeover
Proposal or (iii) enter into any agreement with respect to any Takeover
Proposal. Notwithstanding the foregoing, prior to the time of acceptance for
payment of Shares pursuant to the Offer, the Board of Directors may withdraw or
modify its approval or recommendation of this Agreement or the Subscription
Agreement or the transactions contemplated hereby or thereby, including the
Offer or the Merger, approve or recommend a Superior Proposal, or enter into an
agreement with respect to a Superior Proposal, in each case if (A) the Company
shall have received a Superior Proposal which is pending at the time the Company
determines to take such action, (B) the Board of Directors shall have determined
in good faith, based upon advice of outside counsel, that such action is
required to discharge the Board of Director's fiduciary duties to the Company's
stockholders under the Georgia Code, (C) at least five business days shall have
passed following Parent's receipt of written notice from the Company advising
Parent that the Board of Directors has received a Superior Proposal which it
intends to accept, specifying the material terms and conditions of such Superior
Proposal, identifying the Person making such Superior Proposal, but only if the
Company shall have caused its financial and legal advisors to negotiate in good
faith with Parent to make such adjustments to the terms and conditions of this
Agreement as would enable the Company to proceed with the transactions
contemplated herein on such adjusted terms and (D) concurrently with taking such
action the Company shall have terminated this Agreement pursuant to and in
accordance with Section 8.1(c)(i) hereof.
ARTICLE VI.
ADDITIONAL AGREEMENTS
SECTION 6.1. Proxy Statement. As promptly as practicable after the
consummation of the Offer and if required by the Exchange Act, the Company shall
prepare and file with the SEC, and shall use all reasonable efforts to have
cleared by the SEC, and promptly thereafter shall mail to shareholders, the
Proxy Statement. The Proxy Statement shall contain the recommendation of the
Board of Directors that the Company's shareholders approve this Agreement and
the Merger. Parent will cooperate with the Company in preparing such Proxy
Statement.
SECTION 6.2. Meeting of Shareholders of the Company. Following the
consummation of the Offer, the Company shall promptly take all action necessary
in accordance with the Georgia
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Code and its Articles of Incorporation and By-Laws to convene the Company
Shareholders' Meeting, if such meeting is required. The shareholder vote
required for approval of the Merger will be no greater than that set forth in
the Georgia Code. The Company shall use its best efforts to solicit from
shareholders of the Company proxies in favor of the Merger and shall take all
other action necessary or, in the reasonable opinion of Parent, advisable to
secure any vote of shareholders required by the Georgia Code to effect the
Merger. Notwithstanding the foregoing, if Purchaser or any other subsidiary of
Parent shall acquire at least 90 percent of the outstanding Shares on a fully
diluted basis, and provided that the conditions set forth in Article VII shall
have been satisfied or waived, the Company shall, at the request of Parent, take
all necessary and appropriate action to cause the Merger to become effective as
soon as practicable after such acquisition, without the approval of the
shareholders of the Company, in accordance with Section 14-2-1104 of the Georgia
Code.
SECTION 6.3. Compliance with Law. Each of the Company, Parent and Purchaser
will comply in all material respects with all applicable laws and with all
applicable rules and regulations of any Governmental Entity in connection with
its execution, delivery and performance of this Agreement and the transactions
contemplated hereby.
SECTION 6.4. Notification of Certain Matters. The Company shall give prompt
notice to Parent of (i) the occurrence, or non-occurrence of any event whose
occurrence, or non-occurrence would be likely to cause either (A) any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any respect at any time from the date hereof to the Effective Time
or (B) any condition set forth in Annex I to be unsatisfied in any material
respect at any time from the date hereof to the date Parent purchases Shares
pursuant to the Offer and (ii) any failure of the Company, or any of its
officers, directors, employees or agents, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of any notice pursuant to this
Section 6.4 shall not limit or otherwise affect the remedies available hereunder
to Parent.
SECTION 6.5. Access to Information. From the date hereof to the Effective
Time, the Company shall, and shall cause its Subsidiaries, officers, directors,
employees, auditors and agents to, afford the officers, employees and agents of
Parent and Purchaser reasonable access at all reasonable times to its officers,
employees, agents, properties, offices and other facilities and to all books and
records, and shall promptly furnish Parent and Purchaser with (a) all financial,
operating and other data and information as Parent or Purchaser, through its
officers, employees or agents, may reasonably request and (b) a copy of each
report, schedule and other document filed or received by the Company or any of
the Subsidiaries during such
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period pursuant to the requirements of applicable securities laws.
SECTION 6.6. Public Announcements. So long as this Agreement is in effect,
Parent and the Company shall consult with each other before issuing any press
release or otherwise making any public statements with respect to the Offer or
the Merger and shall not issue, or permit their affiliates to issue, any such
press release or make any such public statement before such consultation, except
as may be required by law. Notwithstanding the foregoing, the Company may issue
a press release describing Section 5.2 of this Agreement in a form approved by
Parent prior to its issue.
SECTION 6.7. Reasonable Best Efforts; Cooperation. Upon the terms and
subject to the conditions hereof, each of the parties hereto shall use all
reasonable best efforts to obtain in a timely manner all necessary waivers,
consents and approvals and to effect all necessary registrations and filings,
and to use all reasonable best efforts to take, or cause to be taken, all other
actions and to do, or cause to be done, all other things necessary, proper or
advisable to cause all conditions to the Offer to be satisfied and to consummate
and make effective as promptly as practicable the transactions contemplated by
this Agreement, including, without limitation, (i) cooperating in responding to
inquiries from, and making presentations to, regulatory authorities and (ii)
defending against and responding to any action, suit, proceeding, or
investigation, whether judicial or administrative, challenging or relating to
this Agreement, the Subscription Agreement or the Voting Agreement or the
transactions contemplated hereby or thereby, including seeking to have any stay
or temporary restraining order entered by any court or other Governmental Entity
vacated or reversed. Notwithstanding anything herein to the contrary, in
connection with any filing or submission or other action required to be made or
taken by any party to effect the Merger and all other transactions contemplated
hereby, the Company shall not, without the prior written consent of Parent,
commit to any divestiture transaction, and Parent shall not be required to
divest or hold separate or otherwise take or commence to take any action that,
in the reasonable discretion of Parent, limits its freedom of action with
respect to, or its ability to retain, the Company or any of Parent's affiliates
or any material portion of the Company's assets or such affiliates' assets.
SECTION 6.8. Agreement to Defend and Indemnify.
(a) It is understood and agreed that, subject to the limitations on
indemnification contained in the Georgia Code, the Company shall, to the fullest
extent permitted under applicable law and regardless of whether the Merger
becomes effective, indemnify and hold harmless, and after the Effective Time,
the Surviving Corporation shall for a period of six years following the
Effective Time, to the fullest extent permitted under
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applicable law, indemnify and hold harmless, each director, officer, employee,
fiduciary and agent of the Company or any Subsidiary and their respective
subsidiaries and affiliates including, without limitation, officers and
directors serving as such on the date hereof (collectively, the "Indemnified
Parties") against any costs or expenses (including reasonable attorneys' fees),
judgments, fines, losses, claims, damages, liabilities and amounts paid in
settlement in connection with any claim, action, suit, proceeding or
investigation arising out of or pertaining to any of the transactions
contemplated hereby, including without limitation liabilities arising under the
Securities Act or the Exchange Act in connection with the Offer or the Merger,
and in the event of any such claim, action, suit, proceeding or investigation
(whether arising before or after the Effective Time), (i) the Company or the
Surviving Corporation shall pay the reasonable fees and expenses of counsel
selected by the Indemnified Parties, which counsel shall be reasonably
satisfactory to the Company or the Surviving Corporation, promptly as statements
therefor are received, and (ii) the Company and the Surviving Corporation will
cooperate in the defense of any such matter; provided, however, that neither the
Company nor the Surviving Corporation shall be liable for any settlement
effected without its prior written consent (which consent shall not be
unreasonably withheld); and provided further, that neither the Company nor the
Surviving Corporation shall be obliged pursuant to this Section 6.8 to pay the
fees and disbursements of more than one counsel for all Indemnified Parties in
any single action except to the extent that, in the opinion of counsel for the
Indemnified Parties, two or more of such Indemnified Parties have conflicting
interests in the outcome of such action. For two years after the Effective Time,
the Surviving Corporation shall be required to maintain or obtain officers' and
directors' liability insurance covering the Indemnified Parties who are
currently covered by the Company's officers and directors liability insurance
policy on terms not less favorable than those in effect on the date hereof in
terms of coverage and amounts; provided, however, that if the aggregate annual
premiums for such insurance at any time during such period exceed the per annum
rate of premium paid by the Company for such insurance as of the date of this
Agreement, then the Surviving Corporation shall provide the maximum coverage
that will then be available at an annual premium equal to 150% of such per annum
rate as of the date of this Agreement. The Surviving Corporation shall continue
in effect the indemnification provisions currently provided by the Third Amended
and Restated Articles of Incorporation and By-Laws of the Company for a period
of not less than six years following the Effective Time. This Section 6.8 shall
survive the consummation of the Merger. Notwithstanding anything in this Section
6.8 to the contrary, neither the Company nor the Surviving Corporation shall
have any obligation under this Section 6.8 to indemnify any Indemnified Party
against any cost, expense, judgment, fine, loss, claim, damage, liability or
settlement amount found to have resulted solely from such Indemnified Person's
own gross negligence or willful misconduct.
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This covenant shall survive any termination of this Agreement pursuant to
Section 8.1 hereof. Notwithstanding Section 9.7 hereof, this Section 6.8 is
intended to be for the benefit of and to grant third-party rights to Indemnified
Parties whether or not parties to this Agreement, and each of the Indemnified
Parties shall be entitled to enforce the covenants contained herein.
(b) If the Surviving Corporation or any of its successors or assigns (i)
consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers all or substantially all of its properties and assets to any
Person, then and in each such case, proper provision shall be made so that the
successors and assigns of the Surviving Corporation assume the obligations set
forth in this Section 6.8.
SECTION 6.9. State Takeover Laws. If any state takeover statute or other
similar statute or regulation becomes or is deemed to become applicable to the
Offer, the Merger, this Agreement, the Subscription Agreement or the Voting
Agreement or any of the transactions contemplated by this Agreement, the
Subscription Agreement or the Voting Agreement, the Company shall promptly take
all reasonable action necessary to render such statute or regulation
inapplicable to all of the foregoing.
ARTICLE VII.
CONDITIONS OF MERGER
SECTION 7.1. Conditions for Each Party's Obligations to Effect the Merger.
The respective obligations of each party to effect the Merger shall be subject
to the satisfaction on or prior to the Effective Time of the following
conditions:
(a) Purchaser shall have made, or caused to be made, the Offer and shall
have purchased, or caused to be purchased, the Shares pursuant to the Offer;
(b) The Merger and this Agreement shall have been approved and adopted by
the requisite vote of the shareholders of the Company, if required by the
Georgia Code or the Company's Third Amended and Restated Articles of
Incorporation;
(c) No statute, rule, regulation, judgment, writ, decree, order or
injunction shall have been promulgated, enacted, entered or enforced, and no
other action shall have been taken, by any Governmental Entity that in any of
the foregoing cases has the effect of making illegal or directly or indirectly
restraining, prohibiting or restricting the consummation of the Merger; and
(d) Any waiting period applicable to the Merger under the HSR Act shall
have expired or have been terminated.
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SECTION 7.2. Conditions for Obligations of Parent and Purchaser. The
obligations of Parent and Purchaser to effect the Merger shall be further
subject to the satisfaction on or prior to the Effective Time of the following
additional conditions:
(a) The representations and warranties of the Company set forth in this
Agreement that are qualified by reference to materiality or a Material Adverse
Effect shall be true and correct, and any such representations and warranties
that are not so qualified shall be true and correct in all material respects, in
each case as if such representations and warranties were made at the Effective
Time;
(b) The Company shall have performed in all material respects all
obligations and complied in all material respects with all agreements and
covenants of the Company to be performed or complied with by it under this
Agreement at or prior to the Effective Time; and
(c) All governmental consents, orders and approvals required for the
consummation of the Merger (including, without limitation, all such consents,
orders and approvals as are necessary to prevent any Authorization from being
revoked, suspended or otherwise adversely affected, and to prevent any penalty
from being imposed) shall have been obtained and shall be in effect.
SECTION 7.3. Conditions for Obligations of the Company. The obligations of
the Company to effect the Merger shall be further subject to the satisfaction on
or prior to the Effective Time of the following additional conditions:
(a) The representations and warranties of Parent and Purchaser set forth in
this Agreement that are qualified by reference to materiality or a Material
Adverse Effect shall be true and correct, and any such representations and
warranties that are not so qualified shall be true and correct in all material
respects, in each case as if such representations and warranties were made at
the Effective Time; and
(b) Parent and Purchaser shall have performed in all material respects all
obligations and complied in all material respects with all agreements and
covenants of each of Parent and Purchaser to be performed or complied with by it
under this Agreement at or prior to the Effective Time.
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ARTICLE VIII.
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1. Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time, whether before or
after approval of matters presented in connection with the Merger by the
shareholders of the Company:
(a) By the mutual written consent of Parent and the Company; or
(b) By either of Parent or the Company if any Governmental Entity shall
have issued an order, decree or ruling or taken any other action (which order,
decree or ruling or other action each party hereto shall use its reasonable best
efforts to have vacated or reversed), in each case permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have become final
and non-appealable.
(c) By the Company:
(i) if the Company has approved a Superior Proposal in accordance with
Section 5.2(b), provided the Company has complied with all provisions
thereof, including the notice provisions therein, and that it makes
simultaneous payment of the Expenses and the Termination Fee (as defined
below); or
(ii) if Parent or Purchaser shall have terminated the Offer or the
Offer expires without Parent or Purchaser, as the case may be, purchasing
any shares pursuant thereto; provided that the Company may not terminate
this Agreement pursuant to this Section 8.1(c)(ii) if the Company is in
material breach of this Agreement; or
(iii) if Parent, Purchaser or any of their affiliates shall have
failed to commence the Offer on or prior to 15 business days following the
date of the initial public announcement of the Offer; provided that the
Company may not terminate this Agreement pursuant to this Section
8.1(c)(iii) if the Company is in material breach of this Agreement; or
(iv) if Parent or Purchaser shall have breached in any material
respect any of its representations, warranties, covenants or other
agreements contained in this Agreement which breach or failure to perform
is incapable of being cured or has not been cured by the earlier of (x) ten
business days following written notice thereof to Parent from the Company
and (y) the scheduled expiration of the Offer; or
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(v) if the Offer shall not have expired or been terminated on or
before June 30, 2000; provided, however, that if on such date any
applicable waiting period under the HSR Act shall not have expired or been
terminated, or any of the conditions in clauses (f), (g) or (h) in Annex I
hereto exist such date shall be extended to July 30, 2000 (such date, as it
may be extended, the "Termination Date"); provided further that the Company
may not terminate this Agreement pursuant to this Section 8.1(c)(v) if the
Company is in material breach of this Agreement.
(d) By Parent or Purchaser:
(i) if prior to the purchase of the Shares pursuant to the Offer, the
Board of Directors shall have withdrawn, or modified or changed in a manner
adverse to Parent or Purchaser its approval or recommendation of the Offer,
this Agreement, the Merger, the Subscription Agreement or the Voting
Agreement or shall have approved a Takeover Proposal; or
(ii) if Parent or Purchaser shall have terminated the Offer without
Parent or Purchaser purchasing any Shares thereunder, provided that Parent
or Purchaser may not terminate this Agreement pursuant to this Section
8.1(d)(ii) if Parent or Purchaser is in material breach of this Agreement;
or
(iii) if, due to an occurrence that if occurring after the
commencement of the Offer would result in a failure to satisfy any of the
conditions set forth in Annex I hereto, Parent, Purchaser, or any of their
affiliates shall have failed to commence the Offer on or prior to 15
business days following the date of the initial public announcement of the
Offer; or
(iv) any Person or "group" (as defined in Section 13(d)(3) of the
Exchange Act), other than Parent, Purchaser or their affiliates or any
group of which any of them is a member shall have acquired beneficial
ownership (as determined pursuant to Rule 13d-3 promulgated under the
Exchange Act) of 15% or more of the Shares; or
(v) if the Company receives a Takeover Proposal from any Person (other
than Parent or Purchaser), and the Board of Directors takes a neutral
position or makes no recommendation with respect to such Takeover Proposal
after a reasonable amount of time (and in no event more than 30 days
following such receipt) has elapsed for the Board of Directors to review
and make a recommendation with respect to such Takeover Proposal; or
(vi) if the Company, or any of the Company Representatives, shall take
any of the actions described in
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clauses (i) or (ii) of Section 5.2(a) hereof, and such action is not
permitted by this Agreement; or
(vii) if the Company shall have breached in any material respect any
of its representations, warranties, covenants or other agreements contained
in this Agreement (other than the covenants and agreements in clauses (i)
and (ii) of Section 5.2(a)) which breach or failure to perform is incapable
of being cured or has not been cured by the earlier of (x) ten business
days following written notice thereof to the Company from Parent and (y)
the scheduled expiration of the Offer; or
(viii) if the Offer shall not have expired or been terminated on or
before the Termination Date; provided that Parent or Purchaser may not
terminate this Agreement pursuant to this Section 8.1(d)(viii) if the
Parent or Purchaser is in material breach of this Agreement.
SECTION 8.2. Effect of Termination. (a) In the event of termination of this
Agreement by either the Company or Parent or Purchaser as provided in Section
8.1, this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Parent, Purchaser or the Company, other
than the provisions of this Article VIII and as provided in Section 9.1 and
except that nothing herein shall relieve any party for breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
(b) If (x) Parent or Purchaser terminates this Agreement pursuant to
Section 8.1(d)(i), 8.1(v) or 8.1(d)(vi) or (y) the Company terminates this
Agreement pursuant to Section 8.1(c)(i), then in each case, the Company shall
pay, or cause to be paid to Parent, at the time of termination, an amount equal
to $2 million (the "Termination Fee") plus an amount equal to the actual and
reasonably documented out-of-pocket expenses of Parent, Purchaser or Warburg or
any affiliate of Warburg incurred by any such person in connection with the
Offer, the Merger, this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, the fees and expenses of any
such person's counsel and accountants as well as all fees and expenses payable
to all banks, investment banking firms, and other financial institutions and
Persons and their respective agents and counsel incurred in connection with
acting as any such person's financial advisor with respect to, or arranging or
committing to provide or providing any financing for, the transactions
contemplated hereby (the "Expenses"); provided that in no event shall the
Company be obligated to pay more than $1 million in Expenses. In addition, if
this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii) or Section
8.1(d)(viii) or by the Company pursuant to Section 8.1(c)(ii) or Section
8.1(c)(v) and at the time of such termination, Parent is not in material breach
of this Agreement and the Minimum Condition has not been satisfied, then the
Company shall pay to
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Parent, at the time of termination, the Expenses, and, if the Company shall
thereafter, within 12 months after such termination, enter into an agreement
with respect to a Takeover Proposal, then the Company shall pay the Termination
Fee concurrently with entering into any such agreement.
ARTICLE IX.
GENERAL PROVISIONS
SECTION 9.1. Non-Survival of Representations, Warranties and Agreements.
The representations, warranties and agreements in this Agreement shall terminate
at the Effective Time or the termination of this Agreement pursuant to Section
8.1, as the case may be, except as provided in Section 8.2 and except that the
agreements set forth in Article II and Sections 6.8 and 9.3 shall survive the
Effective Time indefinitely and those set forth in Article VIII and Section 9.3
shall survive termination indefinitely.
SECTION 9.2. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, and (ii) on the third business day after deposit in
the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
(a) if to Parent or Purchaser
Hilltopper Holding Corp.
Hilltopper Acquisition Corp.
c/o Warburg, Pincus & Co.
466 Lexington Avenue
New York, New York 10017
Attention: Joel Ackerman
Facsimile: (212) 878-9351
With a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
Attention: Steven J. Gartner, Esq.
Facsimile: (212) 728-8111
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(b) if to the Company:
Centennial HealthCare Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, Georgia 30346
Attention: Daryl Griswold, Esq.
Facsimile: (770) 730-1268
With copies to:
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Paul A. Quiros, Esq.
Facsimile: (404) 572-5100
Kilpatrick Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Attention: David A. Stockton, Esq.
Facsimile: (404) 815-6555
SECTION 9.3. Expenses. Except as set forth in Section 8.2(b) or the
following sentence, all fees, costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs and expenses. Promptly following the Effective
Time, the Company shall pay or, to the extent previously paid, reimburse Parent,
Purchaser or Warburg or any affiliate of Warburg, as applicable, for, all fees,
costs and expenses incurred by any such person in connection with the Merger
Agreement and the transactions contemplated by that Agreement.
SECTION 9.4. Certain Definitions. For purposes of this Agreement, the term:
(a) "affiliate" of a Person means a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first mentioned Person;
(b) "control" (including the terms "controlled by" and "under common
control with") means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of stock, as trustee or executor, by contract or credit
arrangement or otherwise; and
(c) "Person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization or other
entity.
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SECTION 9.5. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9.6. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the maximum extent possible.
SECTION 9.7. Entire Agreement; No Third-Party Beneficiaries. This Agreement
and the Confidentiality Agreement constitute the entire agreement and supersede
any and all other prior agreements and undertakings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof.
This Agreement is not intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder, except as otherwise provided herein and
except that Sections 8.2(b) and 9.3 are intended to be for the benefit of and to
grant third-party rights to Warburg, and Warburg shall be entitled to enforce
the covenants contained in such sections.
SECTION 9.8. Assignment. This Agreement shall not be assigned by operation
of law or otherwise, except that Parent and Purchaser may assign all or any of
their rights hereunder to any affiliate of Parent provided that no such
assignment shall relieve the assigning party of its obligations hereunder.
SECTION 9.9. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia applicable to
contracts executed in and to be performed entirely within that State.
SECTION 9.10. Amendment. This Agreement may be amended by the parties
hereto by action taken by Parent and Purchaser, and by action taken by the
Special Committee of the Board of Directors at any time before the Effective
Time; provided, however, that, after approval of the Merger by the shareholders
of the Company, no amendment may be made which would reduce the amount or change
the type of consideration into which each Share will be converted upon
consummation of the Merger. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
SECTION 9.11. Waiver. At any time before the Effective Time, any party
hereto may (a) extend the time for the
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performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 9.12. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
CENTENNIAL HEALTHCARE CORPORATION
By: /s/ J. Stephen Eaton
------------------------------
Name: J. Stephen Eaton
Title: President
HILLTOPPER HOLDING CORP.
By: /s/ David Wenstrup
------------------------------
Name: David Wenstrup
Title: Vice President
HILLTOPPER ACQUISITION CORP.
By: /s/ David Wenstrup
------------------------------
Name: David Wenstrup
Title: Vice President
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ANNEX I
Conditions to the Offer. Notwithstanding any other provision of the Offer,
Purchaser shall not be required to accept for payment or, subject to any
applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated
under the Exchange Act (relating to Parent's obligation to pay for or return
tendered Shares promptly after termination or withdrawal of the Offer), pay for,
and (subject to any such rules or regulations) may delay the acceptance for
payment of any tendered Shares and (except as provided in this Agreement) amend
or terminate the Offer as to any Shares not then paid for if (i) there shall not
have been validly tendered and not withdrawn prior to the expiration of the
Offer a number of shares of Company Common Stock which, when taken together with
the Shares, if any, beneficially owned by Parent, represents more than 68.5% of
the number of shares of Company Common Stock outstanding on a fully diluted
basis (the "Minimum Condition") or (ii) any applicable waiting period under the
HSR Act shall not have expired or been terminated prior to the expiration of the
Offer or (iii) at any time after the date of this Agreement and before the time
of payment for any such Shares (whether or not any Shares have theretofore been
accepted for payment or paid for pursuant to the Offer), any of the following
events shall occur and be continuing or conditions exists:
(a) there shall be an injunction or other order, decree, judgment or ruling
issued or threatened by a Governmental Entity of competent jurisdiction or a
statute, rule, regulation, executive order or other action shall have been
enacted, promulgated, taken or threatened by a Governmental Entity of competent
jurisdiction which in any such case (i) restrains or prohibits or seeks to
restrain or prohibit the making or consummation of the Offer or the consummation
of the Merger or the performance of the other transactions contemplated by this
Agreement, the Subscription Agreement or the Voting Agreement, (ii) prohibits or
restricts or seeks to prohibit or restrict the ownership or operation by Parent
(or any of its affiliates or subsidiaries) of any portion of its or the
Company's business or assets which is material to the business of all such
entities taken as a whole, or compels Parent (or any of its affiliates or
subsidiaries) to dispose of or hold separate any portion of its or the Company's
business or assets which is material to the business of all such entities taken
as a whole, (iii) imposes or seeks to impose material limitations on the ability
of Parent effectively to acquire or to hold or to exercise full rights of
ownership of the Shares, including, without limitation, the right to vote the
Shares purchased by Purchaser or acquired by Parent under the Subscription
Agreement on all matters properly presented to the shareholders of the Company,
(iv) imposes or seeks to impose any material limitations on the ability of
Parent or any of their respective affiliates or subsidiaries effectively to
control in any material respect the business and operations of
<PAGE>
the Company and any of the Subsidiaries, or (v) which otherwise is reasonably
likely to have a Material Adverse Effect; or
(b) this Agreement shall have been terminated by the Company or Parent in
accordance with its terms; or
(c) there shall have occurred or been discovered any event, change or
development that, individually or when considered together with any other
matter, has had or is reasonably likely to have a Material Adverse Effect; or
(d) any of the representations and warranties of the Company set forth in
this Agreement that are qualified by reference to materiality or Material
Adverse Effect shall not be true and correct, or any such representations and
warranties that are not so qualified shall not be true and correct in any
material respects, in each case as if such representations and warranties were
made at the time of such determination; or
(e) the Company shall have failed to perform in any material respect any
obligation or to comply in any material respect with any agreement or covenant
of the Company to be performed or complied with by it under this Agreement; or
(f) the Company shall have not obtained consents of third parties listed in
Schedule 4.4 to this Agreement (the terms of which consents shall be reasonably
satisfactory to Parent) and delivered evidence of such consents to Parent; or
(g) the Company's credit agreement shall have not been amended on terms
reasonably satisfactory to Parent; or
(h) all notices, applications, approvals, licenses, consents,
certifications and waivers ("Approvals") required to be furnished to or obtained
from any governmental or regulatory authority or accreditation or certification
agency, including any Approvals in respect of Authorizations, provider numbers,
and program participation rights possessed by the Company and the Subsidiaries,
necessary in order for the Company and the Subsidiaries to conduct their
business following the consummation of the transactions contemplated by this
Agreement in the manner as such business is now and has heretofore been
conducted shall not have been obtained or furnished and any applicable waiting
period or periods shall not have expired (or, if there be no time limit for
waiver or objection, a notice of no-objection or equivalent with respect thereto
shall not have been received by the Company); or
(i) any suit, action, claim, proceeding or investigation shall have been
commenced or be pending by or before any Governmental Entity or arbitrator, or
shall have been, to the Company's knowledge, threatened by any Governmental
Entity, or any qui tam action shall have been filed or, to the Company's
knowledge, threatened, relating to any billing or
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claims made or submitted by the Company or any Subsidiary of or to any
Governmental Entity (including any federal or state healthcare or health benefit
program) or any insurance carrier, health maintenance or other managed care
organization, independent physician association or any other third party payor
which, in the case of any of the foregoing taken separately or together, in the
reasonable judgment of Parent either (i) materially adversely affects the value
of the equity of the Company to Parent or (ii) presents a risk reasonably
unacceptable to Parent of subjecting the Company or any Subsidiary to a material
liability or a material amount of damages or, on a going-forward basis, imposing
material limitations on the business of the Company and the Subsidiaries and/or
methods of operation (including any limitations on the ability of the Company
and the Subsidiaries to be reimbursed by any Governmental Entity, including any
federal or state healthcare or health benefit program); or
(j) there shall have occurred (i) any general suspension of, or limitation
on prices for, trading in securities on any national securities exchange or the
over-the-counter market, (ii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States, (iii) any
limitation (whether or not mandatory) by an government or Governmental Entity,
on the extension of credit by banks or other lending institutions, (iv) a
commencement of a war or armed hostilities or other national calamity directly
involving the United States or (v) in the case of any of the foregoing existing
at the time of the execution of this Agreement, a material acceleration or
worsening thereof; or
(k) the Board of Directors (i) shall have withdrawn, or modified or changed
in a manner adverse to Parent or Purchaser (including by amendment of the
Schedule 14D-9) its approval or recommendation of this Agreement, the
Subscription Agreement or the Voting Agreement or the transactions contemplated
hereby or thereby, including the Offer or the Merger, (ii) recommended a
Takeover Proposal, (iii) shall have adopted any resolution to effect any of the
foregoing, or (iv) upon request of Purchaser, shall fail to reaffirm its
approval or recommendation of the Offer, this Agreement or the Merger; or
(l) any Person or "group" (as defined in Section 13(d)(3) of the Exchange
Act), other than Parent, Purchaser or their affiliates or any group of which any
of them is a member, shall have acquired beneficial ownership (as determined
pursuant to Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the
Shares; or
(m) any party to the Subscription Agreement or the Voting Agreement other
than the Purchaser, Parent or Warburg shall have breached or failed to perform
any of its agreements under such agreement or breached any of its
representations and warranties in such agreement or any such agreement shall not
be
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valid, binding and enforceable, except for such breaches or failures or failures
to be valid, binding and enforceable that would result in the Minimum Condition
not being satisfied;
which, in the judgment of Parent with respect to each and every matter referred
to above and regardless of the circumstances giving rise to any such condition,
makes it inadvisable to proceed with the Offer or with such acceptance for
payment of or payment for Shares or to proceed with the Merger.
The foregoing conditions are for the sole benefit of Parent and may be
asserted by Purchaser regardless of the circumstances (including any action or
inaction by Purchaser) giving rise to any such conditions and may be waived by
Purchaser in whole or in part at any time and from time to time, in each case,
in the exercise of the good faith judgment of Purchaser and subject to the terms
of this Agreement. The failure by Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right which may be asserted at any time and
from time to time.
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EXHIBIT 3
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 25, 2000 (the "Agreement"), among
Hilltopper Holding Corp., a Delaware corporation ("Parent"), Hilltopper
Acquisition Corp., a Georgia corporation and a wholly owned subsidiary of Parent
("Purchaser"), and the Stockholders of Centennial HealthCare Corporation, a
Georgia corporation (the "Company"), whose names appear on Schedule I hereto
(collectively, the "Stockholders").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, Purchaser and the Company are entering into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), which
provides for, upon the terms and subject to the conditions set forth therein,
(i) the commencement by Purchaser of a tender offer (the "Offer") for all of the
issued and outstanding shares of common stock, par value $.01 per share, of the
Company (the "Company Common Stock") and (ii) the subsequent merger of Purchaser
with and into the Company (the "Merger");
WHEREAS, as of the date hereof, each Stockholder owns beneficially the
number of shares of Company Common Stock set forth opposite such Stockholder's
name on Schedule I hereto (all such shares so owned and which may hereafter be
acquired by such Stockholder prior to the termination of this Agreement, whether
upon the exercise of options or by means of purchase, dividend, distribution or
otherwise, being referred to herein as such Stockholder's "Shares");
WHEREAS, on February 24, 2000, each Stockholder entered into a Subscription
and Contribution Agreement (the "Subscription Agreement") with Parent pursuant
to which, on the terms set forth therein, each Stockholder will contribute some
or all of such Stockholder's Shares to Parent in exchange for shares of Series A
Convertible Preferred Stock or Series B Convertible Preferred Stock of Parent;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that the Stockholders enter into
this Agreement; and
WHEREAS, in order to induce Parent and Purchaser to enter into the Merger
Agreement, the Stockholders are willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and
<PAGE>
intending to be legally bound hereby, Parent, Purchaser and the Stockholders
hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDERS
SECTION 1.1. Voting of Shares. From the date hereof until the termination
of this Agreement pursuant to Section 5.2 hereof (the "Term"), at any meeting of
the stockholders of the Company, however called, and in any action by consent of
the stockholders of the Company, each Stockholder shall vote its Shares (i) in
favor of the Merger and the Merger Agreement (as amended from time to time;
provided that no Stockholder shall be required to vote in favor of the Merger
Agreement or the Merger if the Merger Agreement has been amended in any manner
that is material and adverse to the Stockholder without such Stockholder's
written consent), (ii) against any Takeover Proposal and against any proposal
for action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which is reasonably likely to result in any of the
conditions of the Company's obligations under the Merger Agreement not being
fulfilled, any change in the directors of the Company, any change in the present
capitalization of the Company or any amendment to the Company's Third Amended
and Restated Articles of Incorporation or Amended and Restated By-Laws, any
other material change in the Company's corporate structure or business, or any
other action, which in the case of each of the matters referred to in this
clause (ii) could reasonably be expected to impede, interfere with, delay,
postpone or materially adversely affect the transactions contemplated by the
Merger Agreement or the likelihood of such transactions being consummated and
(iii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any
such meeting of stockholders or in such consent, and in connection therewith to
execute any documents which are necessary or appropriate in order to effectuate
the foregoing, including the ability for Purchaser or its nominees to vote such
Shares directly.
SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by this
Agreement and the Subscription Agreement, each Stockholder shall not during the
Term (i) transfer (which term shall include, without limitation, any sale,
assignment, gift, pledge, hypothecation or other disposition), or consent to any
transfer of, any or all of such Stockholder's Shares or any interest therein, or
create or, permit to exist any lien or other encumbrance on such Shares, (ii)
enter into any contract, option or other agreement or understanding with respect
to any transfer of any or all of such Shares or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization in or with
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<PAGE>
respect to such Shares, (iv) deposit such Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Shares, or (v) take
any other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated hereby
or by the Merger Agreement.
SECTION 1.3. Proxy. Each Stockholder hereby revokes any and all prior
proxies or powers of attorney in respect of any of such Stockholder's Shares and
constitutes and appoints Purchaser and Parent, or any nominee of Purchaser and
Parent, with full power of substitution and resubstitution, at any time during
the Term, as its true and lawful attorney and proxy (its "Proxy"), for and in
its name, place and stead, to demand that the Secretary of the Company call a
special meeting of the stockholders of the Company for the purpose of
considering any matter referred to in Section 1.1 and to vote each of such
Shares as its Proxy, at every annual, special, adjourned or postponed meeting of
the stockholders of the Company, including the right to sign its name (as
stockholder) to any consent, certificate or other document relating to the
Company that the Georgia Code may permit or require as provided in Section 1.1.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH
AN INTEREST THROUGHOUT THE TERM.
SECTION 1.4. Waiver of Appraisal Rights. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger.
SECTION 1.5. Stop Transfer. Each Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, unless
such transfer is made in compliance with this Agreement (including the
provisions of Article III hereof).
SECTION 1.6. No Solicitation. During the Term, each Stockholder shall not,
nor shall it permit or authorize any of its officers, directors, employees,
agents or representatives (collectively, the "Representatives") to, (i) solicit
or initiate, or encourage, directly or indirectly, any inquiries regarding or
the submission of, any Takeover Proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any information or data with
respect to, or take any other action to knowingly facilitate the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Takeover Proposal or (iii) enter into any agreement with respect to any Takeover
Proposal or approve or resolve to approve any Takeover Proposal. Upon execution
of this Agreement, each Stockholder shall, and it shall cause its
Representatives to, immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the
foregoing.
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<PAGE>
Each Stockholder will promptly notify Parent of the existence of any
proposal, discussion, negotiation or inquiry received by such Stockholder, and
each Stockholder will immediately communicate to Parent the terms of any
proposal, discussion, negotiation or inquiry which it may receive (and will
promptly provide to Parent copies of any written materials received by it in
connection with such proposal, discussion, negotiation or inquiry) and the
identity of the Person making such proposal or inquiry or engaging in such
discussion or negotiation. Notwithstanding any provision of this Section 1.6 to
the contrary, if any Stockholder or any of its Representatives is a member of
the Board of Directors, such member of the Board of Directors may take actions
in such capacity to the extent permitted by Section 5.2 of the Merger Agreement.
ARTICLE II.
NO TENDER OF SHARES
SECTION 2.1. No Tender. No Stockholder shall tender (or cause the record
owner of such shares to tender) such Stockholder's Shares pursuant to the Offer.
SECTION 2.2. Disclosure. Each Stockholder hereby authorizes Parent and
Purchaser to publish and disclose in the Offer Documents and, if approval of the
Company's stockholders is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC), its identity and
ownership of the Company Common Stock and the nature of its commitments,
arrangements and understandings under this Agreement (provided that each such
Stockholder and its counsel shall be afforded reasonable opportunity to review
and comment thereon with respect to such disclosure, and Parent and Purchaser
shall consult in good faith with such Stockholder with respect to such
comments).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Parent and Purchaser as
follows:
SECTION 3.1. Due Authorization, etc. Such Stockholder has all requisite
power and authority to execute, deliver and perform this Agreement, to appoint
Purchaser and Parent as its Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement,
the appointment of Purchaser and Parent as Stockholder's Proxy and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of Stockholder. This Agreement has been duly
executed and delivered by or on behalf of such Stockholder and constitutes a
legal,
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valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding for such remedy may
be brought. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which such Stockholder is trustee whose consent
is required for the execution and delivery of this Agreement or the consummation
by such Stockholder of the transactions contemplated hereby.
SECTION 3.2. No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such Stockholder does
not, and the performance of this Agreement by such Stockholder will not, (i)
conflict with or violate any trust agreement or other similar documents relating
to any trust of which such Stockholder is trustee, (ii) conflict with or violate
any law applicable to such Stockholder or by which such Stockholder or any of
such Stockholder's properties is bound or affected or (iii) result in any breach
of or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any assets of such Stockholder, including, without limitation,
such Stockholder's Shares, pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which such Stockholder is a party or by which such Stockholder or
any of such Stockholder's assets is bound or affected, except, in the case of
clauses (ii) and (iii), for any such breaches, defaults or other occurrences
that would not prevent or delay the performance by such Stockholder of such
Stockholder's obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Stockholder does
not, and the performance of this Agreement by such Stockholder will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority (other than any
necessary filing under the HSR Act or the Exchange Act), domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by such Stockholder of such Stockholder's obligations under this
Agreement.
SECTION 3.3. No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
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<PAGE>
Stockholder. Such Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby or by the Merger Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER
Parent and Purchaser hereby, jointly and severally, represent and warrant
to the Stockholders as follows:
SECTION 4.1. Due Organization, Authorization, etc. Purchaser and Parent are
duly organized, validly existing and in good standing under the laws of their
jurisdiction of incorporation. Purchaser and Parent have all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by each of
Purchaser and Parent have been duly authorized by all necessary corporate action
on the part of Purchaser and Parent, respectively. This Agreement has been duly
executed and delivered by each of Purchaser and Parent and constitutes a legal,
valid and binding obligation of each of Purchaser and Parent, enforceable
against Purchaser and Parent in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium or other similar laws and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding for such remedy may be brought.
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. Definitions. Terms used but not otherwise defined in this
Agreement have the meanings ascribed to such terms in the Merger Agreement.
SECTION 5.2. Termination. This Agreement shall terminate and be of no
further force and effect (i) by the written mutual consent of the parties
hereto, (ii) automatically and without any required action of the parties hereto
upon the Effective Time or (iii) upon termination of the Merger Agreement in
accordance with its terms. No such termination of this Agreement shall relieve
any party hereto from any liability for any breach of this Agreement prior to
termination.
SECTION 5.3. Further Assurance. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and
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<PAGE>
take all such further action as may be necessary or desirable to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
SECTION 5.4. Certain Events. Each Stockholder agrees that this Agreement
and such Stockholder's obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Stockholder's heirs, guardians,
administrators, or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all its obligations under
this Agreement.
SECTION 5.5. No Waiver. The failure of any party hereto to exercise any
right, power, or remedy provided under this agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 5.6. Specific Performance. Each Stockholder acknowledges that if
such Stockholder fails to perform any of its obligations under this Agreement
immediate and irreparable harm or injury would be caused to Parent and Purchaser
for which money damages would not be an adequate remedy. In such event, each
Stockholder agrees that each of Parent and Purchaser shall have the right, in
addition to any other rights it may have, to specific performance of this
Agreement. Accordingly, if Parent or Purchaser should institute an action or
proceeding seeking specific enforcement of the provisions hereof, each
Stockholder hereby waives the claim or defense that Parent or Purchaser, as the
case may be, has an adequate remedy at law and hereby agrees not to assert in
any such action or proceeding the claim or defense that such a remedy at law
exists. Each Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such equitable
relief.
SECTION 5.7. Notice. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, and (ii) on the third business day after deposit in
the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
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(a) If to Parent or Purchaser:
c/o Warburg, Pincus & Co.
466 Lexington Avenue
New York, NY 10017
Attention: Joel Ackerman
Facsimile: (212) 878-9351
With a copies to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
Attention: Steven J. Gartner, Esq.
Facsimile: (212) 728-8111; and
(b) If to a Stockholder, at the address set forth below such
Stockholder's name on Schedule I hereto.
SECTION 5.8. Expenses. Except as otherwise expressly set forth herein, all
fees, costs and expenses incurred in connection with this Agreement or the
Merger Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs and expenses.
SECTION 5.9. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 5.10. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the maximum extent
possible.
SECTION 5.11. Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement and supersedes any and all other
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof, and this Agreement is
not intended to confer upon any other person any rights or remedies hereunder.
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<PAGE>
SECTION 5.12. Assignment. This Agreement shall not be assigned by operation
of law or otherwise.
SECTION 5.13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia applicable to
contracts executed in and to be performed entirely within that State.
SECTION 5.14. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
SECTION 5.15. Waiver. Any party hereto may (a) extend the time
for the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties of the
other parties hereto contained herein or in any document delivered pursuant
hereto and (c) waive compliance by the other parties hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only as against such party
and only if set forth in an instrument in writing signed by such party. The
failure of any party hereto to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
SECTION 5.16. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Purchaser and the Stockholders have caused this
Agreement to be executed as of the date first written above.
HILLTOPPER HOLDING CORP.
By: /s/ David Wenstrup
------------------------------
Name: David Wenstrup
Title: Vice President
HILLTOPPER ACQUISITION CORP.
By: /s/ David Wenstrup
------------------------------
Name: David Wenstrup
Title: Vice President
STOCKHOLDERS:
WELSH, CARSON, ANDERSON & STOWE
VI, L.P.
By: /s/ Jonathan M. Rather
------------------------------
Name: Jonathan M. Rather
Title: Attorney-in-Fact
WCAS CAPITAL PARTNERS II, L.P.
By: /s/ Jonathan M. Rather
------------------------------
Name: Jonathan M. Rather
Title: Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: /s/ Jonathan M. Rather
------------------------------
Name: Jonathan M. Rather
Title: Attorney-in-Fact
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<PAGE>
SOUTH ATLANTIC VENTURE FUND II,
LIMITED PARTNERSHIP
By: South Atlantic Venture
Partners II, L.P., General
Partner
By: /s/ Donald W. Burton
------------------------------
Name: Donald W. Burton
Title: Partner
SOUTH ATLANTIC VENTURE FUND III,
LIMITED PARTNERSHIP
By: South Atlantic Venture
Partners III, L.P., General
Partner
By: /s/ Donald W. Burton
------------------------------
Name: Donald W. Burton
Title: Partner
THE BURTON PARTNERSHIP, LIMITED
PARTNERSHIP
By: /s/ Donald W. Burton
------------------------------
Name: Donald W. Burton
Title: General Partner
/s/ J. Stephen Eaton
------------------------------
J. Stephen Eaton
/s/ Lawrence W. Lepley, Jr.
------------------------------
Lawrence W. Lepley, Jr.
/s/ Alan C. Dahl
------------------------------
Alan C. Dahl
/s/ Kent C. Fosha, Sr.
------------------------------
Kent C. Fosha, Sr.
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<PAGE>
Patrick J. Welsh
Russell L. Carson
Bruce K. Anderson
Andrew M. Paul
Thomas E. McInerney
Robert A. Minicucci
Paul B. Queally
By: /s/ Jonathan M. Rather
------------------------------
Name: Jonathan M. Rather
Title: Attorney-in-Fact
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Schedule I
----------
Name and Address of Stockholder Number of Shares Owned
------------------------------- ----------------------
Welsh, Carson, Anderson & Stowe VI, L.P. 2,520,193
320 Park Avenue, Suite 2500
New York, NY 10022-6815
Fax: (212) 893-9562
Attention: Andrew M. Paul
WCAS Capital Partners II, L.P. 246,896
320 Park Avenue, Suite 2500
New York, NY 10022-6815
Fax: (212) 893-9562
Attention: Andrew M. Paul
WCAS Healthcare Partners, L.P. 81,384
320 Park Avenue, Suite 2500
New York, NY 10022-6815
Fax: (212) 893-9562
Attention: Andrew M. Paul
South Atlantic Venture Fund II, 798,963
Limited Partnership
614 West Bay Street
Tampa, FL 33606-2704
Fax: (813) 253-2360
Attention: Donald W. Burton
South Atlantic Venture Fund III, 206,214
Limited Partnership
614 West Bay Street
Tampa, FL 33606-2704
Fax: (813) 253-2360
Attention: Donald W. Burton
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The Burton Partnership, Limited 187,500
Partnership
P.O. Box 4643
Jackson, WY 83001
with a copy to:
The Burton Partnership, Limited
Partnership
614 West Bay Street
Tampa, FL 33606-2704
Fax: (813) 253-2360
Attention: Donald W. Burton
J. Stephen Eaton 1,115,371
c/o Centennial HealthCare Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, GA 30346
Fax: (770) 730-1268
Lawrence W. Lepley, Jr. 83,225
c/o Centennial HealthCare Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, GA 30346
Fax: (770) 730-1268
Alan C. Dahl 92,792
c/o Centennial HealthCare Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, GA 30346
Fax: (770) 730-1268
Kent C. Fosha, Sr. 8,970
c/o Centennial HealthCare Corporation
400 Perimeter Center Terrace
Suite 650
Atlanta, GA 30346
Fax: (770) 730-1268
Patrick J. Welsh 49,977
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
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Russell L. Carson 49,977
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Bruce K. Anderson 29,977
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Andrew M. Paul 12,707
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Thomas E. McInerney 10,000
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Robert A. Minicucci 10,772
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
Paul B. Queally 705
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, NY 10022
Fax: (212) 893-9562
Attention: Andrew M. Paul
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EXHIBIT 4
Joint Filing Agreement
The undersigned hereby agree that the statement on Schedule 13D with
respect to the shares of Common Stock of Centennial HealthCare Corporation is,
and any amendment thereto signed by each of the undersigned shall be, filed on
behalf of each undersigned pursuant to and in accordance with the provisions of
13d-1(k) under the Securities Exchange Act of 1934, as amended.
Dated: March 6, 2000 WARBURG, PINCUS EQUITY
PARTNERS, L.P.
By: Warburg, Pincus & Co.,
General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
WARBURG, PINCUS & CO.
By: /s/ Joel Ackerman
------------------------------
Managing Director
E.M. WARBURG, PINCUS & CO., LLC
By: Warburg, Pincus &
Co., General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
WARBURG, PINCUS
NETHERLANDS EQUITY
PARTNERS I, C.V.
By: Warburg, Pincus &
Co., General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
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WARBURG, PINCUS
NETHERLANDS EQUITY
PARTNERS II, C.V.
By: Warburg, Pincus &
Co., General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
WARBURG, PINCUS
NETHERLANDS EQUITY
PARTNERS III, C.V.
By: Warburg, Pincus &
Co., General Partner
By: /s/ Joel Ackerman
------------------------------
Managing Director
HILLTOPPER HOLDING CORP.
By: /s/ David Wenstrup
------------------------------
Vice President
HILLTOPPER ACQUISITION CORP.
By: /s/ David Wenstrup
------------------------------
Vice President
WELSH, CARSON, ANDERSON &
STOWE VI, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
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WCAS CAPITAL PARTNERS II, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
WCAS VI PARTNERS, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
WCAS CP II PARTNERS
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
WCAS HP PARTNERS, L.P.
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
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SOUTH ATLANTIC VENTURE FUND II,
LIMITED PARTNERSHIP
By: South Atlantic Venture
Partners II,
Limited Partnership,
General Partner
By: /s/ Donald W. Burton
------------------------------
Partner
SOUTH ATLANTIC VENTURE FUND III,
LIMITED PARTNERSHIP
By: South Atlantic Venture
Partners III,
Limited Partnership,
General Partner
By: /s/ Donald W. Burton
------------------------------
Partner
THE BURTON PARTNERSHIP,
LIMITED PARTNERSHIP
By: /s/ Donald W. Burton
------------------------------
Partner
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<PAGE>
/s/ J. Stephen Eaton
------------------------------
J. Stephen Eaton
/s/ Lawrence W. Lepley, Jr.
------------------------------
Lawrence W. Lepley, Jr.
/s/ Alan C. Dahl
------------------------------
Alan C. Dahl
/s/ Kent C. Fosha, Sr.
------------------------------
Kent C. Fosha, Sr.
Patrick J. Welsh
Russell L. Carson
Bruce K. Anderson
Andrew M. Paul
Thomas E. McInerney
Robert A. Minicucci
Paul B. Queally
By: /s/ William J. Hewitt
------------------------------
Name: William J. Hewitt
Title: Attorney-in-Fact
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<PAGE>
EXHIBIT 5
POWER OF ATTORNEY
THE UNDERSIGNED hereby makes, constitutes and appoints J. Stephen Eaton and
Daryl Griswold (the "Attorney"), and each of them, with full power of
substitution, the true and lawful attorney in fact for the undersigned, in the
undersigned's name, place and stead and on the undersigned's behalf, to
complete, execute and file with the United States Securities and Exchange
Commission (the "Commission"), a statement on Schedule 13D and any and all
amendments thereto pursuant to Section 13(d) of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder, and any other forms,
certificates, documents or instruments that the Attorney deems necessary or
appropriate in order to enable the undersigned to comply with the requirements
of said Section 13(d) and said rules and regulations.
This Power of Attorney shall remain in effect for a period of two years
from the date hereof or until such earlier date as a written revocation thereof
is filed with the Commission.
Dated: March 6, 2000
/s/ Kent C. Fosha, Sr.
------------------------------
Kent C. Fosha, Sr.
/s/ Alan C. Dahl
------------------------------
Alan C. Dahl
/s/ Lawrence W. Lepley
------------------------------
Lawrence W. Lepley
