<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Act of 1934
Date of Report (Date of earliest event reported) July 22, 1999
-------------------------------
Hudson Respiratory Care Inc.
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(Exact name of registrant as specified in its charter)
California 333-56097 95-1867330
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(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
27711 Diaz Road, P.O. Box 9020, Temecula, CA 92589
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (909) 676-5611
----------------------------
Not applicable
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
(a) On July 22, 1999, the Registrant, through its indirect, wholly-
owned subsidiary Steamer Holding AB, a company organized under the laws of
Sweden ("Steamer"), acquired a majority of the outstanding capital stock of
Louis Gibeck AB, a company organized under the laws of Sweden ("LGAB").
Pursuant to a series of private purchases and a tender offer consummated
pursuant to Swedish law, Steamer acquired 604,000 shares of Class A stock and
2,452,838 shares of Class B stock representing approximately 82.1% of the
capital and 62.9% of the voting power of LGAB at a price of 115 Swedish krona
(approximately $13.60 at the July 22 exchange rate) per share of Class A stock
and Class B stock for an aggregate cash purchase price of approximately $44.0
million. In addition, on August 5, 1999, Steamer acquired an additional 483,750
shares of Class A stock of LGAB from River Holding Corp., a Delaware corporation
and the parent of Steamer and the Registrant ("River"), which shares River
acquired in a private transaction in exchange for 525,042 shares of common stock
of River ("River Common Stock"). The exchange ratio for the Class A stock was
the same as the effective price per share of the shares acquired in the tender
offer. After giving effect to this exchange and the conversion of the Series A
stock acquired by Steamer in the tender offer into Series B stock, Steamer holds
approximately 95.1% of the capital and 97.7% of the voting power of LGAB. The
Registrant intends that Steamer, through continuing purchases and a statutory
freezeout and appraisal procedure under Swedish law, will acquire the remaining
outstanding shares of LGAB as soon as practicable.
The cash for the purchase price and certain related transaction costs
was funded with (i) $22.0 million in gross proceeds from the sale of River
Common Stock to the majority stockholder of River, (ii) a $22.0 million loan
from the majority stockholder of River to Steamer's parent, HRC Holding Inc., a
Delaware corporation and a wholly-owned subsidiary of the Registrant ("HRCH"),
and (iii) funding of 50 million Swedish krona (approximately $5.9 million)
pursuant to the terms of a Loan Facility Agreement between Steamer and Svenska
Handelsbanken AB.
The LGAB purchase price was arrived at by means of arm's length
bargaining among the parties to the acquisition. In September 1998, the
Registrant acquired certain assets of Gibeck, Inc., a subsidiary of LGAB, for
approximately $3.35 million. In conjunction with that transaction, the
Registrant became the exclusive North American distributor of LGAB's "Heat
Moisture Exchange" ("HME") product line. Prior to the acquisition, there was no
other material relationship between LGAB and the Registrant, River, HRCH,
Steamer or any of their affiliates, or any director, officer or shareholder of
the foregoing.
(b) Founded in 1954, LGAB develops, manufactures and markets medical
device products which humidify, heat and filter a patient's breathing gases
during anesthesia and intensive care. LGAB is a market leader in the area HME
products, with an approximately 25% share of the world market. Following the
acquisition, the Registrant intends to continue LGAB's operations in
substantially the same manner as conducted prior to the acquisition.
1
<PAGE>
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
The financial statements of LGAB required to be filed as part of this
Report will be provided by amendment within 60 days from the date of this
Report.
(b) Pro forma financial information.
The pro forma financial statements required to be filed as part of
this Report will be provided by amendment within 60 days from the date of this
Report.
(c) Exhibits.
2.1 Agreement dated May 7, 1999 between Sten Gibeck, the Registrant
and River.
2.2 Agreement dated May 7, 1999 between Euroventures Nordica I B.V.,
the Registrant and River.
2.3 Agreement dated May 7, 1999 between Forsakrings AB Skandia and
Livforsakrings AB Skandia, the Registrant and River.
2.4 Agreement dated May 7, 1999 between Maud Gibeck, the Registrant
and River.
2.5 Stock Subscription Agreement dated August 4, 1999 between Sten
Gibeck, River, FS Equity Partners III, L.P., FS Equity Partners
International, L.P. and FS Equity Partners IV, L.P.
2
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: August 6, 1999
HUDSON RESPIRATORY CARE INC.
By: /s/ Jay R. Ogram
-------------------------------
Jay R. Ogram
Chief Financial Officer
3
<PAGE>
EXHIBIT 2.1
Agreement No. 1
entered into this day of 7 May 1999 between:
Hudson RCI "Hudson", its parent River Holding Corp, "River" and/or its
affiliates, (collectively the "Purchaser", as the context may require); and
Sten Gibeck, (the "Seller")
jointly hereinafter referred to as the Parties;
WHEREAS: the Purchaser intends to initiate a public cash offer in
accordance with the NBK Take-over-Recommendation (the "Offer", and "to Offer",
as the context may require) to acquire all outstanding shares in Louis Gibeck AB
(the "Company") at an offer price of SEK 115 per share for the B-shares and the
A-shares in the Company (the "Offer Price"); such intention to Offer to be
publicly announced soonest hereafter and no later than on May 17, 1999 before
the Stockholm Stock Exchange open.
WHEREAS: the Seller is the owner of 483.750 A-shares and 45.390 B-shares
in the Company (the "A-shares", and the "B-shares", respectively);
WHEREAS: the Seller wishes to participate as shareholder in the combined
group of Hudson and the Company, to the effect that the Purchaser is willing to
offer the Seller newly issued shares in River as consideration for all the
Seller's A-shares in a transaction parallel to, conditional upon and to be
settled immediately prior to completion of the Offer.
Now therefore the Parties have agreed as follows.
1. The Seller hereby irrevocably undertakes to exchange or under the
circumstances referred to in 1(ii) sell his A-shares subject to and in
accordance with the below terms and conditions:
(i) The Seller's undertaking to so exchange or sell A-shares shall
be subject to the intention to Offer being publicly announced, no later than on
May 17, 1999.
(ii) The Seller shall receive such number of common shares in River,
as will equal a value at the time of exchange of all the Seller's A-shares and
valued at SEK 115 per share. The market value per common share in River (the
"Market Value") will be determined by independent valuers, being Ernst & Young
or such other leading accounting firm as the Parties will mutually agree. The
relevant foreign exchange rate as officially quoted by Svenska Handelsbanken,
shall be determined on the business day before such share exchange. Should the
Market Value show a value of less than US$ 9, then the Seller shall have the
option
<PAGE>
to exchange on the basis of a share value of US$ 9 irrespectively of the
Market Value or to elect to receive SEK 115 per share for all of his A-shares.
The Seller's obligation to complete any exchange hereunder shall
be subject to the Offer being declared unconditional.
(iiI) The Parties recognise that the Purchaser's intention to announce
and initiate the Offer is subject to undertakings to tender being obtained prior
to such contemplated announcement from Euroventures Nordica I B.V., Forsakrings
AB Skandia, Livforsakrings AB Skandia and Maud Gibeck (the "Other Main
Sellers").
(iv) The intention to Offer shall be publicly announced by way of a
press release to be prepared by the Purchaser in consultation with the Seller.
Accordingly, the Seller recognises that the Purchaser's obligation to make the
Offer shall be subject to the following conditions, namely:
(a) that the Offer will be accepted by shareholders -- including
the Seller and the Other Main Sellers -- to an extent whereby the Purchaser will
obtain shares representing more than 90% of the votes and 90% of the capital in
the Company; such condition however being waivable by the Purchaser (the
"Minimum Condition");
(b) that the obligation to Offer is subject to the Purchaser
arranging satisfactory financing for the aggregate amount of cash pursuant to
the Offer, such Offer condition to be waivable by the Purchaser (the "Financing
Condition"); such Financing Condition, however, vis-a-vis the Seller must be
satisfied on or before 21 June 1999, to the effect that the Seller shall no
longer be obliged to exchange or sell his A-shares hereunder, should such
Financing Condition not have been waived prior to such date;
(c) that antitrust and other regulatory consents (if any) be
obtained (the "Regulatory Condition");
(d) that the acquisition, prior to the public announcement that
the Offer is being completed, is not rendered partly or wholly impossible or
significantly impeded as a result of legislation, a court ruling, any decision
of a public authority or by comparable circumstances in Europe, the US or
Malaysia, as is reasonably likely at the time of such determination to become
effective, or by any other circumstance beyond the Purchaser's control (the
"Material Adverse Change Condition");
(e) that the Purchaser will be allowed to conduct confirmatory
due diligence in respect of the Company and its business and will be satisfied
that the result of such due diligence shall be consistent in all material
respects, in relation to the Company taken as a whole, with information related
to the Company previously provided to the Purchaser as to the condition,
financial and otherwise, of the Company's business, operating results, assets,
2
<PAGE>
liabilities and prospects (The "Due Diligence Condition"). The Due Diligence
Condition must be exercised reasonably and disregard any impact resulting
primarily from the Offer itself.
2. The Purchaser, subject to the conditions referred to under 1(iv)(a)-
(e) above, undertakes to prepare, register and make publicly available an Offer
Document Prospectus (the "Prospectus") -- thereby implementing the Offer and
opening up its acceptance period in accordance with relevant Swedish regulation
- -- no later than on 21 June 1999. The Purchaser agrees that the Offer so made
by virtue of the Prospectus will not remain subject to the Financing Condition
or the Due Diligence Condition.
3. The Parties appreciate that FS Equity Partners IV, L.P., a shareholder
of River, is prepared to issue a put-option for a period 90 days from the Offer,
or such longer time as may be agreed, in the Seller's favour in respect of a
certain portion (not exceeding 60%) of the common shares of River to be received
hereunder at a price per share equal to the price per River share used in the
exchange in 1(ii) above, in order to provide the Seller with an orderly
secondary market for the otherwise unlisted stock of River. Such put-option is
separate from the Offer and this Agreement and shall not be construed as any
part of or condition for the sale and purchase transaction hereunder.
4. The Parties agree to cooperate in good faith and agree to make any
required filing and any public announcements concerning this Agreement and the
transactions referred to herein. The Seller specifically agrees that his
undertaking hereunder to exchange his A-Shares may be made public in the press
release and the Prospectus to be issued by the Purchaser.
5. The Seller will not encourage any third party to proceed with any
public offer for shares in the Company or with a private purchase of any shares
of the Company (except the Sellers' B-shares), to the effect inter alia that the
Seller will not assist in the provision of any non-public information related to
the Company to any such third party (save as required by law). Should the
Seller be approached by a third party for such purpose, the Seller will promptly
inform the Purchaser with respect to the nature of such approach and the
identity of such third party.
6. The Purchaser agrees not to dispose of its shares in the Company,
without the Seller's consent, for a period of 12 months from completion of the
Offer unless the Purchaser has become the owner of more than 90% of the capital
of the Company.
7. The Parties agree to cooperate in order to improve the structure
(however not the price) of the Offer prior to announcement.
3
<PAGE>
8. This Agreement is governed by Swedish law and any disputes shall be
settled by arbitration in Stockholm in accordance with the Swedish Arbitration
Act.
____________________
Dated this 7 day May 1999
/s/ /s/
- --------------------------------- --------------------------------------------
Sten Gibeck Hudson RCI
/s/
--------------------------------------------
River Holding, Inc.
4
<PAGE>
EXHIBIT 2.2
Agreement No. 2
entered into this day of 7 May 1999 between:
Hudson RCI "Hudson", its parent River Holding Corp. "River" and/or its
affiliates, (collectively the "Purchaser", as the context may require); and
Euroventures Nordica I B.V., (the "Seller")
jointly hereinafter referred to as the Parties;
WHEREAS: the Purchaser intends to initiate a public cash offer in
accordance with the NBK Take-over-Recommendation (the "Offer", and "to Offer",
as the context may require) to acquire all outstanding shares in Louis Gibeck AB
(the "Company") at an offer price of SEK 115 per share for the B-shares and the
A-shares in the Company (the "Offer Price"); such intention to Offer to be
publicly announced soonest hereafter and no later than on May 17, 1999 before
Stockholm Stock Exchange open.
WHEREAS: the Seller is the owner of 441.500 A-shares and 278.900 B-shares
in the Company (the "A-shares", and the "B-shares", respectively, and jointly
the "Shares");
WHEREAS: the Seller is positive to the contemplated Offer and is willing
to commit to tender its shares in the Offer if and when made in accordance with
the Parties' understanding herein.
Now therefore the Parties have agreed as follows.
1. The Seller hereby irrevocably undertakes to tender and sell its A-
shares and B-shares in the Offer, subject to and in accordance with the below
terms and conditions:
(i) The Seller's undertaking to so tender its A-shares and B-shares
shall be subject to the intention to Offer being publicly announced, no later
than on May 17, 1999.
(ii) The Parties recognise that the Purchaser's intention to announce
and make the Offer is subject to an undertaking to tender being obtained prior
to such contemplated announcement from Maud Gibeck, Forsakrings AB Skandia and
Livforsakrings AB Skandia, as well as an undertaking from Sten Gibeck to
exchange his A-shares into shares in River or under certain circumstances sell
(Sten Gibeck, Maud Gibeck, Livforsakrings AB Skandia and Forsakrings AB Skandia
jointly referred to as the "Other Main Sellers").
<PAGE>
(iii) The intention to Offer shall be publicly announced by way of a
press release. Accordingly, the Seller recognises that the Purchaser's
obligation to make the Offer shall be subject to the following conditions,
namely:
(a) that the Offer will be accepted by shareholders -- including
the Seller and the Other Main Sellers -- to an extent whereby the Purchaser will
obtain shares representing more than 90% of the votes and 90% of the capital in
the Company; such condition however being waivable by the Purchaser (the
"Minimum Condition");
(b) that the obligation the Offer is subject to the Purchaser
arranging satisfactory financing for the aggregate amount of cash pursuant to
the Offer, such Offer condition to be waivable by the Purchaser (the "Financing
Condition"); such Financing Condition, however, vis-a-vis the Seller must be
satisfied on or before 21 June 1999, to the effect that the Seller shall no
longer be obliged to sell his A-shares and his B-shares hereunder, should such
Financing Condition not have been waived prior to such date;
(c) that antitrust and other regulatory consents (if any) be
obtained (the "Regulatory Condition");
(d) that the acquisition, prior to the public announcement that
the Offer is being completed, is not rendered partly or wholly impossible or
significantly impeded as a result of legislation, a court ruling, any decision
of a public authority or by comparable circumstances in Europe, the US or
Malaysia, as is reasonably likely at the time of such determination to become
effective, or by any other circumstance beyond the Purchaser's control (the
"Material Adverse Change Condition");
(e) that the Purchaser will be allowed to conduct confirmatory
due diligence in respect of the Company and its business and will be satisfied
that the result of such due diligence shall be consistent in all material
respects, in relation to the Company taken as a whole, with information related
to the Company previously provided to the Purchaser as to the condition,
financial and otherwise, of the Company's business, operating results, assets,
liabilities and prospects (The "Due Diligence Condition"). The Due Diligence
Condition must be exercised reasonably and disregard any impact resulting
primarily from the Offer itself.
2. The Purchaser, subject to the conditions referred to under 1(iv)(a)-
(e) above, undertakes to prepare, register and make publicly available an Offer
Document Prospectus (the "Prospectus") -- thereby implementing the Offer and
opening up its acceptance period in accordance with relevant Swedish regulation
- -- no later than on 21 June 1999. The Purchaser agrees that the Offer so made
by virtue of the Prospectus will not remain subject to the Financing Condition
or the Due Diligence Condition.
2
<PAGE>
3. The Seller is aware of the Agreement between the Purchaser and Sten
Gibeck for the exchange of his shares of the Company into shares in River, and
has no objection as to the different consideration offered to him.
4. The Parties agree to cooperate in good faith and agree to make any
required filing and any public announcements concerning this Agreement and the
transactions referred to herein. The Seller specifically agrees that his
undertaking to accept the Offer in respect of its Shares may be made public in
the press release to be issued by the Purchaser.
5. The Seller will not encourage any third party to proceed with any
public offer for shares in the Company or with a private purchase of any such
shares, to the effect inter alia that the Seller will not assist in the
provision of any non-public information related to the Company to any such third
party. Should the Seller be approached by a third party for such purpose, the
Seller will promptly inform the Purchaser.
6. This Agreement is governed by Swedish law and any disputes shall be
settled by arbitration in Stockholm in accordance with the Swedish Arbitration
Act.
____________________
Dated this 7 day May 1999
/s/ /s/
- --------------------------- ------------------------------------
Euroventures Nordica I B.V. Hudson RCI
/s/
------------------------------------
River Holdings, Inc.
3
<PAGE>
EXHIBIT 2.3
Agreement No. 3
entered into this day of 7 May 1999 between:
Hudson RCI "Hudson", its parent River Holding Corp. "River" and/or its
affiliates, (collectively the "Purchaser", as the context may require); and
Forsakrings AB Skandia and Livforsakrings AB Skandia, (the "Seller")
jointly hereinafter referred to as the Parties;
WHEREAS: the Purchaser intends to initiate a public cash offer in
accordance with the NBK Take-over-Recommendation (the "Offer", and "to Offer",
as the context may require) to acquire all outstanding shares in Louis Gibeck AB
(the "Company") at an offer price of SEK 115 per share for the B-shares and the
A-shares in the Company (the "Offer Price"); such intention to Offer to be
publicly announced soonest hereafter and no later than on May 17, 1999 before
Stockholm Stock Exchange open.
WHEREAS: the Seller is the owner of 15.000 A-shares and 507.300 B-shares
in the Company (the "A-shares", and the "B-shares", respectively, and jointly
the "Shares");
WHEREAS: the Seller is positive to the contemplated Offer and is willing
to commit to tender its shares in the Offer if and when made in accordance with
the Parties' understanding herein.
Now therefore the Parties have agreed as follows.
1. The Seller hereby irrevocably undertakes to tender and sell its A-
shares and B-shares in the Offer, subject to and in accordance with the below
terms and conditions:
(i) The Seller's undertaking to so tender its A-shares and B-shares
shall be subject to the intention to Offer being publicly announced, no later
than on May 17, 1999.
(ii) The Parties recognise that the Purchaser's intention to announce
and make the Offer is subject to an undertaking to tender being obtained prior
to such contemplated announcement from Maud Gibeck and Euroventures Nordica I
B.V., as well as an undertaking from Sten Gibeck to exchange his A-shares into
shares in Riven or under certain circumstances sell (Sten Gibeck, Maud Gibeck
and Euroventures Nordica I B.V. jointly referred to as the "Other Main
Sellers").
<PAGE>
(iii) The intention to Offer shall be publicly announced by way of a
press release. Accordingly, the Seller recognises that the Purchaser's
obligation to make the Offer shall be subject to the following conditions,
namely:
(a) that the Offer will be accepted by shareholders -- including
the Seller and the Other Main Sellers -- to an extent whereby the Purchaser will
obtain shares representing more than 90% of the votes and 90% of the capital in
the Company; such condition however being waivable by the Purchaser (the
"Minimum Condition");
(b) that the obligation the Offer is subject to the Purchaser
arranging satisfactory financing for the aggregate amount of cash pursuant to
the Offer, such Offer condition to be waivable by the Purchaser (the "Financing
Condition"); such Financing Condition, however, vis-a-vis the Seller must be
satisfied on or before 21 June 1999, to the effect that the Seller shall no
longer be obliged to sell his A-shares and his B-shares hereunder, should such
Financing Condition not have been waived prior to such date;
(c) that antitrust and other regulatory consents (if any) be
obtained (the "Regulatory Condition");
(d) that the acquisition, prior to the public announcement that
the Offer is being completed, is not rendered partly or wholly impossible or
significantly impeded as a result of legislation, a court ruling, any decision
of a public authority or by comparable circumstances in Europe, the US or
Malaysia, as is reasonably likely at the time of such determination to become
effective, or by any other circumstance beyond the Purchaser's control (the
"Material Adverse Change Condition");
(e) that the Purchaser will be allowed to conduct confirmatory
due diligence in respect of the Company and its business and will be satisfied
that the result of such due diligence shall be consistent in all material
respects, in relation to the Company taken as a whole, with information related
to the Company previously provided to the Purchaser as to the condition,
financial and otherwise, of the Company's business, operating results, assets,
liabilities and prospects (The "Due Diligence Condition"). The Due Diligence
Condition must be exercised reasonably and disregard any impact resulting
primarily from the Offer itself.
2. The Purchaser, subject to the conditions referred to under 1(iv)(a)-
(e) above, undertakes to prepare, register and make publicly available an Offer
Document Prospectus (the "Prospectus") -- thereby implementing the Offer and
opening up its acceptance period in accordance with relevant Swedish regulation
- -- no later than on 21 June 1999. The Purchaser agrees that the Offer so made
by virtue of the Prospectus will not remain subject to the Financing Condition
or the Due Diligence Condition.
2
<PAGE>
3. The Seller is aware of the Agreement between the Purchaser and Sten
Gibeck for the exchange of his shares of the Company into shares in River, and
has no objection as to the different consideration offered to him.
4. The Parties agree to cooperate in good faith and agree to make any
required filing and any public announcements concerning this Agreement and the
transactions referred to herein. The Seller specifically agrees that his
undertaking to accept the Offer in respect of its Shares may be made public in
the press release to be issued by the Purchaser.
5. The Seller will not encourage any third party to proceed with any
public offer for shares in the Company or with a private purchase of any such
shares, to the effect inter alia that the Seller will not assist in the
provision of any non-public information related to the Company to any such third
party. Should the Seller be approached by a third party for such purpose, the
Seller will promptly inform the Purchaser.
6. This Agreement is governed by Swedish law and any disputes shall be
settled by arbitration in Stockholm in accordance with the Swedish Arbitration
Act.
---------------
Dated this 7 day May 1999
/s/ /s/
- ------------------------- -----------------------
Forsakrings AB Skandia Hudson RCI
/s/ /s/
- ------------------------- -----------------------
Livforsakrings AB Skandia River Holding, Inc.
3
<PAGE>
EXHIBIT 2.4
Agreement No. 4
entered into this day of 7 May 1999 between:
Hudson RCI "Hudson", its parent River Holding Corp. "River" and/or its
affiliates, (collectively the "Purchaser", as the context may require); and
Maud Gibeck, (the "Seller")
jointly hereinafter referred to as the Parties;
WHEREAS: the Purchaser intends to initiate a public cash offer in
accordance with the NBK Take-over-Recommendation (the "Offer", and "to Offer",
as the context may require) to acquire all outstanding shares in Louis Gibeck AB
(the "Company") at an offer price of SEK 115 per share for the B-shares and the
A-shares in the Company (the "Offer Price"); such intention to Offer to be
publicly announced soonest hereafter and no later than on May 17, 1999 before
Stockholm Stock Exchange open.
WHEREAS: the Seller is the owner of 87.500 A-shares and 7.900 B-shares in
the Company (the "A-shares", and the "B-shares", respectively, and jointly the
"Shares");
WHEREAS: the Seller is positive to the contemplated Offer and is willing
to commit to tender its shares in the Offer if and when made in accordance with
the Parties' understanding herein.
Now therefore the Parties have agreed as follows.
1. The Seller hereby irrevocably undertakes to tender and sell its A-
shares and B-shares in the Offer, subject to and in accordance with the below
terms and conditions:
(i) The Seller's undertaking to so tender its A-shares and B-shares
shall be subject to the intention to Offer being publicly announced, no later
than on May 17, 1999.
(ii) The Parties recognise that the Purchaser's intention to announce
and make the Offer is subject to an undertaking to tender being obtained prior
to such contemplated announcement from Euroventures Nordica I B.V., Forsakrings
AB Skandia and Livforsakrings AB Skandia, as well as an undertaking from Sten
Gibeck to exchange his A-shares into shares in Riven or under certain
circumstances sell (Sten Gibeck, Euroventures Nordica I B.V., Livforsakrings AB
Skandia and Forsakrings AB Skandia jointly referred to as the "Other Main
Sellers").
<PAGE>
(iii) The intention to Offer shall be publicly announced by way of a
press release. Accordingly, the Seller recognises that the Purchaser's
obligation to make the Offer shall be subject to the following conditions,
namely:
(a) that the Offer will be accepted by shareholders -- including
the Seller and the Other Main Sellers -- to an extent whereby the Purchaser will
obtain shares representing more than 90% of the votes and 90% of the capital in
the Company; such condition however being waivable by the Purchaser (the
"Minimum Condition");
(b) that the obligation the Offer is subject to the Purchaser
arranging satisfactory financing for the aggregate amount of cash pursuant to
the Offer, such Offer condition to be waivable by the Purchaser (the "Financing
Condition"); such Financing Condition, however, vis-a-vis the Seller must be
satisfied on or before 21 June 1999, to the effect that the Seller shall no
longer be obliged to sell his A-shares and his B-shares hereunder, should such
Financing Condition not have been waived prior to such date;
(c) that antitrust and other regulatory consents (if any) be
obtained (the "Regulatory Condition");
(d) that the acquisition, prior to the public announcement that
the Offer is being completed, is not rendered partly or wholly impossible or
significantly impeded as a result of legislation, a court ruling, any decision
of a public authority or by comparable circumstances in Europe, the US or
Malaysia, as is reasonably likely at the time of such determination to become
effective, or by any other circumstance beyond the Purchaser's control (the
"Material Adverse Change Condition");
(e) that the Purchaser will be allowed to conduct confirmatory
due diligence in respect of the Company and its business and will be satisfied
that the result of such due diligence shall be consistent in all material
respects, in relation to the Company taken as a whole, with information related
to the Company previously provided to the Purchaser as to the condition,
financial and otherwise, of the Company's business, operating results, assets,
liabilities and prospects (The "Due Diligence Condition"). The Due Diligence
Condition must be exercised reasonably and disregard any impact resulting
primarily from the Offer itself.
2. The Purchaser, subject to the conditions referred to under 1(iv)(a)-
(e) above, undertakes to prepare, register and make publicly available an Offer
Document Prospectus (the "Prospectus") -- thereby implementing the Offer and
opening up its acceptance period in accordance with relevant Swedish regulation
- -- no later than on 21 June 1999. The Purchaser agrees that the Offer so made
by virtue of the Prospectus will not remain subject to the Financing Condition
or the Due Diligence Condition.
2
<PAGE>
3. The Seller is aware of the Agreement between the Purchaser and Sten
Gibeck for the exchange of his shares of the Company into shares in River, and
has no objection as to the different consideration offered to him.
4. The Parties agree to cooperate in good faith and agree to make any
required filing and any public announcements concerning this Agreement and the
transactions referred to herein. The Seller specifically agrees that his
undertaking to accept the Offer in respect of its Shares may be made public in
the press release to be issued by the Purchaser.
5. The Seller will not encourage any third party to proceed with any
public offer for shares in the Company or with a private purchase of any such
shares, to the effect inter alia that the Seller will not assist in the
provision of any non-public information related to the Company to any such third
party. Should the Seller be approached by a third party for such purpose, the
Seller will promptly inform the Purchaser.
6. This Agreement is governed by Swedish law and any disputes shall be
settled by arbitration in Stockholm in accordance with the Swedish Arbitration
Act.
____________________
Dated this 7 day May 1999
/s/ /s/
- ----------------------------------- -----------------------------------
Maud Gibeck Hudson RCI
/s/
-----------------------------------
River Holding, Inc.
3
<PAGE>
EXHIBIT 2.5
RIVER HOLDING CORP.
STOCK SUBSCRIPTION AGREEMENT
THIS STOCK SUBSCRIPTION AGREEMENT (this "Agreement") is made and
entered into as of August 4, 1999 by and among River Holding Corp. ("Holding"),
Mr. Sten Gibeck ("Investor") and, for purposes of Sections 6 and 9 hereof only,
FS Equity Partners III, L.P., FS Equity Partners International, L.P. and FS
Equity Partners IV, L.P. (collectively, the "FS Entities").
R E C I T A L S:
- - - - - - - -
A. Holding desires to issue to Investor, and Investor desires to
acquire from Holding, a number of shares of Common Stock, $0.01 par value per
share, of Holding determined as set forth herein ("Common Stock"), in exchange
for 483,750 shares of the Class A Stock of Louis Gibeck AB ("LGAB") owned by
Investor.
B. In connection with the foregoing transaction, and in
consideration thereof, Holding, Investor and the FS Entities desire to enter
into this Agreement to set forth certain restrictions and agreements pertaining
to the Shares and other matters as set forth herein.
A G R E E M E N T:
- - - - - -- - - -
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and conditions contained herein, the parties agree as follows:
1. Sale and Purchase of Stock. Subject to the conditions and
--------------------------
restrictions contained in this Agreement, Holding hereby agrees to issue to
Investor, and Investor hereby agrees to acquire from Holding, in exchange for
the transfer to Holding by Investor of 483,750 shares of the Class A Stock of
LGAB owned by Investor (the "LGAB Shares") shares of Common Stock, calculated
using the following formula: 483,750 multiplied by ((a) 115 Swedish krona,
divided by (b) the currency exchange rate of Swedish krona to U.S. dollars as
officially quoted by Svenska Handelsbanken AB on August 3, 1999); such resulting
number to be divided by $12.89 (based on a valuation by Deloitte & Touche) and
the result shall equal the number of shares of Common Stock (individually, a
"Share," and collectively, the "Shares") to be issued to Investor in exchange
for the LGAB Shares.
<PAGE>
2. Restriction on Transfer of the Shares.
-------------------------------------
(a) Restriction. Except as otherwise provided in Section 4,
-----------
Investor may not sell, transfer, assign, pledge, hypothecate or otherwise
dispose of (collectively, "Transfer") any of the Shares, or any right, title or
interest therein, except in compliance with Sections 3 and 5 hereof. In
connection with any public offering (by Holding or any subsidiary) Investor
agrees to execute a reasonable lock up agreement (for up to 180 days) covering
the Shares. Any purported Transfer or Transfers (including involuntary Transfers
initiated by operation of legal process) of any of the Shares or any right,
title or interest therein, except in strict compliance with the terms and
conditions of this Agreement, shall be null and void.
(b) Certain Definitions. For purposes of this Agreement (1)
-------------------
the term "Initial Public Offering" means an underwritten public offering which
results in gross proceeds to Hudson Respiratory Care Inc. in excess of $25
million from the sale of common stock and (2) the term "Company" means Hudson
Respiratory Care Inc.
3. Right of First Refusal.
----------------------
(a) Sales; Notice. Investor may Transfer for cash (and only
-------------
for such form of consideration) any or all of the Shares to any third party
subject to the provisions of this Section 3, and Sections 6(c) and 8(a) hereof.
Prior to any such intended Transfer, Investor shall first give at least 15 days
prior written notice (the "Notice") to Holding specifying (i) Investor's bona
fide intention to sell such Shares; (ii) the name(s) and address(es) of the
proposed transferee(s); (iii) the number of Shares Investor proposes to Transfer
(individually, an "Offered Share," and collectively, the "Offered Shares"); (iv)
the price for which Investor proposes to Transfer each Offered Share (the
"Proposed Purchase Price"); and (v) all other material terms and conditions of
the proposed Transfer.
(b) Election by Holding. Within 15 days after receipt of the
-------------------
Notice, Holding (or its nominee(s) or assignee(s)) may elect to purchase all but
not less than all of the Offered Shares at the price and on the terms and
conditions set forth in the Notice by delivery of written notice (the "Election
Notice") of such election to Investor, specifying a day, which shall not be more
than 30 days after the Election Notice is delivered, on or before which Investor
shall surrender (if Investor has not already done so) the certificate or
certificates representing the Offered Shares (with a stock assignment or stock
assignments duly endorsed in blank for Transfer) at the principal office of
Holding. Within 30 days after delivery of the Election Notice to Investor,
Holding (or its nominee(s) or assignee(s)) shall deliver to Investor a check,
payable to Investor in the amount equal to the product of the Proposed Purchase
Price multiplied by the number of Offered Shares (the "First Refusal Price") in
exchange for the Offered Shares. If Investor fails to so surrender such
certificate or certificates on or before such date, from and after such date the
Offered Shares shall be deemed to be no longer outstanding, and Investor shall
cease to be a stockholder with respect to such Shares and shall have no rights
with respect thereto except only the right to receive payment of the First
Refusal Price, without interest, upon surrender of the certificate or
certificates therefor (duly endorsed in blank for Transfer). If Holding (or its
nominee(s) or assignee(s)) does not elect to
2
<PAGE>
purchase all of the Offered Shares, Investor shall be entitled to Transfer the
Offered Shares to the transferee(s) named in the Notice at the Proposed Purchase
Price or at a higher price and on the terms and conditions set forth in the
Notice; provided, however, that such Transfer must be consummated within 90 days
after the date of the Notice and any proposed Transfer after such 90-day period
may be made only by again complying with the procedures set forth in this
Section 4.
(c) Termination of Right of First Refusal. All rights provided
-------------------------------------
to Holding under this Section 3 shall terminate upon the consummation of an
Initial Public Offering. Upon a Transfer of the Shares pursuant to Section 3(b),
the rights provided Holding under this Section 3 shall terminate with respect to
the Shares (and only those Shares) so Transferred.
4. Permitted Transfers. Investor may, at any time, Transfer any or
-------------------
all of the Shares (a) intervivos to Investor's spouse or issue, a trust for
their benefit or pursuant to any will or testamentary trust, (b) intervivos to a
corporation or other business enterprise, all of the equity interests in which
are owned by Investor and/or parties who would be Permitted Transferee if they
acquired Shares directly, or (c) upon Investor's death, to any person in
accordance with the laws of descent and/or testamentary distribution (such
persons or entities are collectively referred to herein as "Permitted
Transferees"). As a condition to any Transfer pursuant to this Section 4, the
Permitted Transferee must execute a valid undertaking, in form and substance
reasonably satisfactory to Holding and the FS Entities, to the effect that the
Permitted Transferee and the Shares so Transferred shall thereafter remain
subject to all of the provisions of this Agreement as though the Permitted
Transferee were a party to this Agreement, bound in every respect in the same
way as Investor. Transfers made in accordance with this Section 4 shall not be
subject to the provisions of Section 3 of this Agreement.
5. Other Agreements.
----------------
(a) If the FS Entities find a third-party buyer for all of the
shares of Common Stock (or Company Common Stock, if the FS Entities hold Company
Common Stock) held by them (whether such sale is by way of purchase, exchange,
merger or other form of transaction), or if Holding finds a third-party buyer
for all of the shares of Company Common Stock held by it (whether such sale is
by way of purchase, exchange, merger or other form of transaction), then at the
request of the FS Entities or Holding, Investor shall sell all of his or her
shares of Common Stock on the same terms and conditions as apply to the sale by
Holding of its shares of Company Common Stock or the FS Entities of the Common
Stock (or Company Common Stock, if the FS Entities hold Company Common Stock);
provided however, that if such buyer is a party other than a corporation whose
common stock is publicly-traded, Investor shall not be required to accept
consideration other than cash.
(b) If the FS Entities find a third-party buyer (other than a
permitted transferee of Holding or the FS Entities (as defined in the
Shareholders Agreement)), for all or part of the shares of Common Stock (or
Company Common Stock, if the FS Entities hold Company Common Stock) held by the
FS Entities (whether such sale is by way of purchase, exchange, merger
3
<PAGE>
or other form of transaction), the Investor shall have the right to sell, on the
terms set forth in a written notice (the "Offering Notice") delivered by the FS
Entities to the Investor describing the terms of the proposed sale (including
the minimum sale price for the shares of Common Stock ) (or Company Common
Stock, if the FS Entities hold Company Common Stock) that the FS Entities plan
to sell, that amount of his Shares which constitute the same percentage of his
Shares as the percentage of Common Stock (or Company Common Stock, if the FS
Entities hold Company Common Stock) sold by the FS Entities, in the aggregate.
Each such right shall be exercisable by delivering written notice to the FS
Entities within 15 days after receipt of the Offering Notice. Failure to
exercise such right within such 15-day period shall be regarded as a waiver of
such rights. The obligations of the FS Entities under this Section 5(b) shall
terminate upon an Initial Public Offering. The transactions contemplated by
Section 7.4 of the Shareholders Agreement shall not give rise to any rights of
Investor under this Section 5(b).
(c) In addition to the obligations of the Investor to sell the
Shares pursuant to Section 5(a) above, the Investor hereby agrees to exchange or
otherwise transfer his or her Shares, in the same manner as the FS Entities
exchange or otherwise transfer its shares of Common Stock in connection with the
transactions contemplated by Section 7.4 of the Shareholders Agreement. Investor
hereby consents to any sale, transfer, reorganization, exchange, merger,
combination, liquidation, dissolution or other form of transaction described in
this Section 5 or as contemplated by Section 7.4 of the Shareholders Agreement
and agrees to execute such agreements, powers of attorney, voting proxies or
other documents and instruments as may be necessary or desirable to consummate
such sale, transfer, reorganization, exchange, merger, combination or other form
of transaction. Investor further agrees to timely take such other actions as
Holding or the FS Entities or the Company may reasonably request in connection
with the approval of the consummation of such sale, transfer, reorganization,
exchange, merger, combination or other form of transaction, including voting as
a stockholder to approve any such sale, transfer, reorganization, exchange,
merger, combination or other form of transaction and waiving any appraisal
rights that Investor may have in connection therewith. The Company shall succeed
to all of Holding's rights under this Agreement and the rights of the FS
Entities under this Agreement shall remain in full force and effect upon
consummation of the transactions contemplated by Section 7.4 of the Shareholders
Agreement, and Investor shall execute an amendment to this Agreement in form and
substance satisfactory to the Company acknowledging the Company's and the FS
Entities' rights hereunder. As provided in Section 8(h), this Agreement shall
apply to all securities received by Investor in exchange for his or her Shares
upon consummation of the transactions contemplated by Section 7.4 of the
Shareholders Agreement.
(d) The obligations of Investor pursuant to Section 5(a) shall be
binding on any transferee of any of the Shares (except a transferee of Shares in
a Public Market Sale (as defined below)) and any transfer of any of the Shares
shall be void unless a written commitment to be bound by such provisions from
such transferee is delivered to Holding and the FS Entities and the Company
prior to any transfer. The obligations of Investor pursuant to Section 6(a)
shall apply to any securities received in substitution or exchange for the
Shares. A "Public Market Sale" shall mean any sale of shares of Common Stock
into the public market after an Initial Public Offering, which is
4
<PAGE>
made pursuant to Rule 144 promulgated under the Act or pursuant to a
registration statement filed with and declared effective by the Securities and
Exchange Commission and shall not include a negotiated private sale transaction
or other disposition of shares of Common Stock.
6. Investment Representations. Investor represents and warrants to
--------------------------
Holding as follows:
(a) Investor's Own Account. Investor is acquiring the Shares for
----------------------
Investor's own account and not with a view to or for sale in connection with any
distribution of the Shares.
(b) Access to Information. Investor (i) is familiar with the
---------------------
business of Holding and its Subsidiaries; (ii) has had an opportunity to discuss
with representatives of Holding and its Subsidiaries the condition of and
prospects for the continued operation and financing of Holding and its
Subsidiaries and such other matters as Investor has deemed appropriate in
considering whether to invest in the Shares; and (iii) has been provided access
to all available information about Holding and its Subsidiaries requested by
Investor.
(c) Shares Not Registered. Investor understands that the Shares
---------------------
have not been registered under the Act or registered or qualified under the
securities laws of any state and that Investor may not Transfer the Shares
unless they are subsequently registered under the Act and registered or
qualified under applicable state securities laws, or unless an exemption is
available which permits Transfers without such registration and qualification.
7. Partial Termination. This Agreement shall terminate with respect
-------------------
to those Shares which are acquired by Holding or a third party pursuant to
Section 3 hereof, upon such acquisition; provided, however, that with respect to
those Shares that are acquired by a third party, the obligations of Section 5 of
this Agreement shall survive such termination.
8. Representations and Covenants.
-----------------------------
(a) Representations. Investor represents to Holding (i) that he
---------------
is the record and beneficial owner of the LGAB Shares being transferred to
Holding hereby, free and clear of any lien, encumbrance, charge, option or other
claim of any party whatsoever; (ii) that the transfer of the LGAB Shares to
Holding by Investor will not violate any agreement, contract or other obligation
by which Investor is bound or any law, statute, rule or regulation to which the
LGAB Shares or Investor is subject; (iii) that the transfer of the LGAB Shares
to Holding will not require any consent, approval, permit, filing, or
authorization from any third party, governmental authority or stock exchange on
the part of Investor; and (iv) that upon completion of the transfer, Holding
will acquire good and marketable title to the LGAB Shares, free of any lien,
encumbrance, charge, option or other claim of any other party whatsoever.
(b) Transfer. Investor covenants and agrees to take all actions,
--------
and to execute and deliver, all instruments that may be necessary or desirable
to cause full title to the LGAB
5
<PAGE>
Shares to be transferred to Holding as contemplated hereby, subject to the terms
and conditions hereof. Investor further agrees to take any further action, and
execute any instrument, that Holding may reasonably request to further perfect
Holding's title or ownership of the LGAB Shares.
9. Representation on the Board of Directors.
----------------------------------------
(a) The Board. Subject to the terms and conditions of this
---------
Section 9, (i) at each annual or special meeting of shareholders of Holding or
in any written consent executed in lieu of a shareholder meeting, at or pursuant
to which persons are being elected to fill positions on the Board of Directors
of Holding, the FS Entities agree to exercise, or cause to be exercised, voting
rights with respect to the shares of Holding then held of record or beneficially
owned by them in such a manner that Investor shall be elected to the Board of
Directors of Holding, and (ii) at each annual or special meeting of shareholders
of the Company or in any written consent executed in lieu of a shareholder
meeting, at or pursuant to which persons are being elected to fill positions on
the Board of Directors of the Company, Holding agrees to exercise, or cause to
be exercised, voting rights with respect to the shares of the Company then held
of record or beneficially owned by Holding in such a manner that Investor shall
be elected to the Board of Directors of the Company. If necessary, the Boards of
Holding and the Company shall elect such additional independent members, if any,
as may be required under applicable law or stock exchange requirements or by the
National Association of Securities Dealers or underwriters in connection with
the Initial Public Offering, and Holding and Investor shall each take all
actions necessary in connection therewith.
(b) Termination and Assignment. Investor's rights contained in
--------------------------
this Section 9 shall terminate upon the sale by Investor or its Permitted
Transferees of more than 60% of the Shares to transferees (other than Permitted
Transferees) and shall not be assignable other than to Permitted Transferees,
and shall likewise terminate on the death of Investor.
10. Miscellaneous.
-------------
(a) Legends on Certificates. Any and all certificates now or
-----------------------
hereafter issued evidencing shares of Common Stock shall have endorsed upon
them a legend substantially as follows:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS UPON TRANSFER AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT
IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THAT CERTAIN STOCK
SUBSCRIPTION AGREEMENT DATED AS OF AUGUST 4, 1999 BY AND BETWEEN
RIVER HOLDING CORP. AND THE ORIGINAL INVESTOR HEREOF, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE
6
<PAGE>
PRINCIPAL EXECUTIVE OFFICES OF RIVER HOLDING CORP."
Such certificates shall also bear such legends and shall be subject to such
restrictions on transfer as may be necessary to comply with all applicable
federal and state securities laws and regulations.
(b) Further Assurances. Each party hereto agrees to perform any
------------------
further acts and execute and deliver any documents which may be reasonably
necessary to carry out the intent of this Agreement.
(c) Notices. Except as otherwise provided herein, all notices,
-------
requests, demands and other communications under this Agreement shall be in
writing, and if given by telegram, telecopy or telex, shall be deemed to have
been validly served, given or delivered when sent, if given by personal
delivery, shall be deemed to have been validly served, given or delivered upon
actual delivery and, if mailed, shall be deemed to have been validly served,
given or delivered three business days after deposit in the United States mails,
as registered or certified mail, with proper postage prepaid and addressed to
the party or parties to be notified, at the following addresses (or such other
address(es) a party may designate for itself by like notice):
If to Holding:
River Holding Corp.
c/o Freeman Spogli & Co. Incorporated
11100 Santa Monica Boulevard, Suite 1900
Los Angeles, CA 90025
Fax: (310) 444-1870
If to the FS Entities:
Freeman Spogli & Co. Incorporated
11100 Santa Monica Boulevard, Suite 1900
Los Angeles, CA 90025
Fax: (310) 444-1870
If to Investor:
Mr. Sten Gibeck
Soderforsgrand 15
195 55 Upplands Vasby
Sweden
Fax: 011 46 8 594 10258
7
<PAGE>
(d) Amendments. This Agreement may be amended only by a written
----------
agreement executed by all of the parties hereto.
(e) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware.
(f) Disputes. In the event of any dispute among the parties
--------
arising out of this Agreement, the prevailing party shall be entitled to recover
from the nonprevailing party the reasonable expenses of the prevailing party
including, without limitation, reasonable attorneys' fees and expenses.
(g) Entire Agreement. This Agreement and the instruments and
----------------
agreements referenced herein constitute the entire agreement and understanding
among the parties pertaining to the subject matter hereof and supersede any and
all prior agreements, whether written or oral, relating hereto.
(h) Recapitalizations or Exchanges Affecting Holding's Capital
----------------------------------------------------------
Stock. The provisions of this Agreement shall apply to any and all shares of
- -----
capital stock or other securities of Holding or any successor or assign of
Holding which may be issued in respect of, in exchange for or in substitution
of, the Shares by reason of any stock dividend, stock split, reverse split,
recapitalization, reclassification, combination, merger, consolidation or
otherwise, including as contemplated by Section 7.4 of the Shareholders
Agreement, and such shares or other securities shall be encompassed within the
term "Shares" for purposes of this Agreement.
(i) Successors and Assigns. Holding may assign with absolute
----------------------
discretion any or all of its rights and/or obligations and/or delegate any of
its duties under this Agreement to any of its affiliates, successors and/or
assigns and this Agreement shall inure to the benefit of, and be binding upon,
such respective affiliates, successors and/or assigns of Holding in the same
manner and to the same extent as if such affiliates, successors and/or assigns
were original parties hereto. Without limiting the foregoing, Holding may assign
the Repurchase Option and/or the right of first refusal provided for in Sections
3 and 4 of this Agreement, respectively, to any nominee, affiliate, successor
and/or assign. The FS Entities may assign its rights under Section 6 to any of
its permitted transferees (as defined in the Shareholders Agreement) or to an
investor of shares of Common Stock then owned by the FS Entities. Investor may
not assign any or all of its rights and/or obligations and/or delegate any or
all of its duties under this Agreement without the prior written consent of
Holding and the FS Entities.
(j) Headings. Introductory headings at the beginning of each
--------
section and subsection of this Agreement are solely for the convenience of the
parties and shall not be deemed to be a limitation upon or description of the
contents of any such section and subsection of this Agreement.
8
<PAGE>
(k) Counterparts. This Agreement may be executed in two
------------
counterparts, each of which shall be deemed an original and both of which, when
taken together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
HOLDING:
RIVER HOLDING CORP.
By:/s/ Richard W. Johansen
--------------------------------------------
Name: Richard W. Johansen
Title: President and Chief Executive Officer
INVESTOR:
/s/ Sten Gibeck
-----------------------------------------------
Sten Gibeck
(Signatures continued on the following page)
9
<PAGE>
FS ENTITIES:
(For purposes of Sections 6 and 9 only)
FS EQUITY PARTNERS IV, L.P.
By: FS Capital Partners LLC
Its: General Partner
By: /s/ Charles P. Rullman
---------------------------------
Charles P. Rullman
FS EQUITY PARTNERS III, L.P.
By: FS Capital Partners, L.P.
Its: General Partner
By: FS Holdings, Inc.
Its: General Partner
By: /s/ Charles P. Rullman
----------------------------
Charles P. Rullman
FS EQUITY PARTNERS INTERNATIONAL, L.P.
By: FS & Co. International, L.P.
Its: General Partner
By: FS International Holdings Ltd.
Its: General Partner
By: /s/ Charles P. Rullman
--------------------------------
Charles P. Rullman
10
