<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ________)*
Sunrise Assisted Living, Inc.
- -------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- -------------------------------------------------------------------------------
(Title of Class of Securities)
86768K 10 6
---------------------------------------
(CUSIP Number)
Thomas E. Siegler
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
(212) 892-3000
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
June 5, 1996
-------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement /X/. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 114 Pages
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 2 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprout Growth II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
667,161
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
WITH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 667,161
WITH
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
667,161
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.9% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
Page 2 of 114 Pages
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 3 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
733,333
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING
WITH 9 SOLE DISPOSITIVE POWER
PERSON 733,333
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
733,333
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
Page 3 of 114 Pages
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 4 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson, Lufkin & Jenrette Securities Corporation
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 PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
12,697
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
12,697
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,697
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO, BD
Page 4 of 114 Pages
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 5 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson, Lufkin & Jenrette, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
CO, HC
Page 5 of 114 Pages
<PAGE> 6
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 6 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Equitable Companies Incorporated
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
CO, HC
Page 6 of 114 Pages
<PAGE> 7
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 7 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
OO, HC
Page 7 of 114 Pages
<PAGE> 8
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 8 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
OO, HC
Page 8 of 114 Pages
<PAGE> 9
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 9 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
Page 9 of 114 Pages
<PAGE> 10
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 10 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
Page 10 of 114 Pages
<PAGE> 11
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 11 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Uni Europe Assurance Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
Page 11 of 114 Pages
<PAGE> 12
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 12 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alpha Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
Page 12 of 114 Pages
<PAGE> 13
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 13 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alpha Assurances I.A.R.D. Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
Page 13 of 114 Pages
<PAGE> 14
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 14 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
Page 14 of 114 Pages
<PAGE> 15
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 15 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
Page 15 of 114 Pages
<PAGE> 16
SCHEDULE 13D
CUSIP NO. 86768K 10 6 PAGE 16 OF 114 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henry de Clermont-Tonnerre, AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
746,030
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 746,030
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
746,030
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
Page 16 of 114 Pages
<PAGE> 17
ITEM 1. SECURITY AND ISSUER
This Statement relates to the common stock, $0.01 par value per share (the
"Shares"), of Sunrise Assisted Living, Inc., a Delaware corporation (the
"Company"). The Company's principal executive offices are located at 9401 Lee
Highway, Suite 300, Fairfax, Virginia 22031.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is being filed jointly on behalf of the following persons
(collectively, the "Reporting Persons"): (1) Sprout Growth II, L.P, a Delaware
limited partnership ("Growth II"), (2) DLJ Capital Corporation, a Delaware
corporation ("DLJCC"), (3) Donaldson, Lufkin & Jenrette Securities Corporation,
a Delaware corporation ("DLJSC"), (4) Donaldson, Lufkin & Jenrette, Inc., a
Delaware corporation ("DLJ"), (5) The Equitable Companies Incorporated, a
Delaware corporation ("Equitable"), (6) AXA, a societe anonyme organized under
the laws of France, (7) Finaxa, a societe anonyme organized under the laws of
France, (8) AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company
organized under the laws of France, (9) AXA Assurances Vie Mutuelle, a mutual
insurance company organized under the laws of France, (10) Uni Europe Assurance
Mutuelle, a mutual insurance company organized under the laws of France, (11)
Alpha Assurances Vie Mutuelle, a mutual insurance company organized under the
laws of France, (12) Alpha Assurances I.A.R.D. Mutuelle, a mutual insurance
company organized under the laws of France, and (13) Claude Bebear, Patrice
Garnier and Henri de Clermont-Tonnerre, trustees (the "AXA Voting Trustees") of
a voting trust (the "AXA Voting Trust") established pursuant to a Voting Trust
Agreement by and among AXA and the AXA Voting Trustees dated as of May 12,
1992.
Growth II is a Delaware limited partnership formed to invest in securities
for long-term appreciation. DLJCC is the managing general partner of Growth II
and makes all of the investment and voting decisions on the part of Growth II.
DLJCC is a Delaware corporation formed to make investments in industrial and
other companies to participate in the management of venture capital pools.
DLJCC is a wholly owned subsidiary of DLJ.
DLJSC is a Delaware corporation and a registered broker/dealer. DLJSC is a
wholly owned subsidiary of DLJ.
DLJ is a publicly-held Delaware corporation. DLJ directly owns all of the
capital stock of DLJCC and DLJSC. DLJ, acting on its own behalf or through its
subsidiaries, is a registered broker/dealer and registered investment adviser
engaged in investment banking, institutional trading and research, investment
management and financial and correspondent brokerage services. Equitable
directly owns 44.1% of DLJ, and The Equitable Life Assurance Society of the
United States, a New York stock life insurance company wholly owned by
Equitable, indirectly owns 36.1% of DLJ.
Equitable is a Delaware corporation and is a holding company. As of April
30, 1996 approximately 60.7% of the outstanding common stock as well as certain
convertible preferred stock of Equitable was beneficially owned by AXA. For
insurance regulatory purposes, to insure that certain indirect minority
shareholders of AXA will not be able to exercise control over Equitable and
certain of its insurance subsidiaries, the voting shares of Equitable capital
stock beneficially owned by AXA and its subsidiaries have been deposited into
the AXA Voting Trust. For additional information regarding the AXA Voting
Trust, reference is made to the Schedule 13D filed by AXA with respect to
Equitable.
AXA is a societe anonyme organized under the laws of France and a holding
company for an international group of insurance and related financial services
companies.
Finaxa is a societe anonyme organized under the laws of France and is a
holding company. As of May 9, 1996, Finaxa owned 29.9% of the issued shares
(representing approximately 39.6% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle, Uni
Europe Assuance Mutuelle, Alpha Assurances Vie Mutuelle, and Alpha Assurances
I.A.R.D. Mutuelle (collectively, the "Mutuelles AXA") is a mutual insurance
company organized under the laws of France. The Mutuelles AXA are owned by
approximately 1.5 million policy holders. As of May 9, 1996, the Mutuelles
AXA, as a group, control, directly and indirectly through intermediate holding
companies, approximately 40.1% of the issued shares (representing approximately
46.2% of the voting power) of AXA. AXA is indirectly controlled by the
Mutuelle AXA, acting as a group.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnere, the AXA
Voting Trustees, exercise all voting rights with respect to the shares of
Equitable capital stock beneficially owned by AXA and its subsidiaries that
have been deposited
Page 17 of 114 Pages
<PAGE> 18
in the AXA Voting Trust. The business address, citizenship and present and
principal occupation of each of the AXA Voting Trustees are set forth on
Schedule E attached hereto.
The address of the principal business and principal office of each of Growth
II, DLJCC, DLJSC and DLJ is 277 Park Avenue, New York, New York 10172. The
address of the principal business and principal office of Equitable is 787
Seventh Avenue, New York, New York 10019.
The address of the principal business and principal office of each of AXA,
Finaxa and the AXA Voting Trustees is 23, avenue Matignon, 75008 Paris, France;
of each of AXA Assurances I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is
21/25, rue de Chateaudun, 75009 Paris, France; of each of Alpha Assurances
I.A.R.D. Mutuelle and Alpha Assurances Vie Mutuelle is Tour Franklin, 100/101
Terrasse Boildieu, Cedex 11, 92042 Paris La Defense, France; and of Uni Europe
Assurance Mutuelle is 24, rue Druout, 75009 Paris, France.
The name, business address, citizenship, present and principal occupation or
employment and the name and business address of any corporation or organization
in which each such employment is conducted, of each executive officer or
member, as applicable, of the Board of Directors or the Conseil
d'Administration (French analogue of a Board of Directors) of DLJCC, DLJSC,
DLJ, Equitable, AXA, Finaxa and the Mutuelles AXA are set forth on Schedules A
through K, respectively, attached hereto.
During the past five (5) years, neither any of the Reporting Persons nor, to
the best knowledge of any of the Reporting Persons, any of the other persons
listed on Schedule A through K attached hereto, has been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to United States federal or state
securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The aggregate amount of funds used by each of Growth II and DLJCC to
purchase the Shares was $6,004,449 and $595,548, respectively. The funds used
by Growth II and DLJCC to purchase the Shares came from their general
investment capital. The funds used by DLJSC to purchase the Shares came from
its working capital. Since May 31, 1996, DJLSC has been a market-marker and in
the ordinary course of market-making activities has acquired and disposed of
Shares. No funds of any of DLJ, Equitable, AXA, Finaxa, AXA Assurances
I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle, Uni Europe Assurance Mutuelle,
Alpha Assurances vie Mutuelle, Alpha Assurances I.A.R.D. Mutuelle, Claude
Bebear, Patrice Garnier and Henri de Clermont-Tonnerre were used to purchase
Shares.
ITEM 4. PURPOSE OF TRANSACTION
The Reporting Persons acquired the Shares for investment purposes (except in
connection with DJLSC's ordinary course market-making activities, which are
expected to continue) and not for the purpose of acquiring control of the
Company. Except as disclosed in Item 6 of this statement, none of the
Reporting Persons has any current plans or proposals which relate to or would
result in any of the events described in Items (a) through (j) of Item 4 of
Schedule 13D. In addition, except as qualified by Item 6, depending on market
and other considerations, the Reporting Persons may acquire additional Shares
or other securities of the Company if such Shares or securities become
available at prices that are attractive to the Reporting Persons. On the other
hand, depending on market and other considerations, the Reporting Persons may
dispose of all or a portion of the Shares or other securities they now own or
may hereinafter acquire.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Growth II may be deemed to be the beneficial owner of the 667,161 Shares
(the "Growth Shares") directly owned by it, or approximately 4.9% of the Shares
outstanding. Growth has the sole power to vote and the sole power to dispose
of the Growth Securities directly owned by it.
DLJCC may be deemed to be the beneficial owner 66,172 Shares directly owned
by it, or 0.5% of the Shares outstanding. DLJCC, as the managing general
partner of Growth II, also may be deemed, for the purposes of Rule 13d-3 under
the Act, to beneficially own indirectly the Growth II Shares, for a total of
733,333 Shares (collectively, the "DLJCC
Page 18 of 114 Pages
<PAGE> 19
Shares"), or approximately 5.4% of the Shares outstanding. DLJCC has the sole
power to vote and the sole power to dispose of the Shares directly owned by it.
DLJSC may be deemed to be the beneficial owner of the 12,697 Shares directly
owned by it (the "DLJSC Shares"), or approximately 0.1% of the Shares
outstanding as of the close of business on June 12, 1996. DLJSC has the sole
power to vote and the sole power to dispose of the DLJSC Shares directly owned
by it.
As the sole stockholder of DLJCC, and DLJSC, DLJ may be deemed, for the
purposes of Rule 13d-3 under the Act, to beneficially own indirectly the DLJCC
Shares and the DLJSC Shares. Because of Equitable's ownership of DLJ,
Equitable may be deemed, for the purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the DLJCC Shares and the DLJSC Shares that may be
deemed to be beneficially owned indirectly by DLJ.
The Reporting Persons, in the aggregate, may be deemed to beneficially own
746,030 Shares or approximately 5.5% of the Shares outstanding. The percentage
of Shares outstanding reported as beneficially owned be each person herein on
the date hereof is based upon 13,516,419 Shares outstanding as stated by the
Company in its Prospectus dated May 30, 1996.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The Company and DLJSC are parties to an Underwriting Agreement (the
"Underwriting Agreement"), dated May 30, 1996, among the Company, certain
selling stockholders of the Company named therein (the "Selling Stockholders")
and DLJSC, Alex. Brown & Sons Incorporated and NatWest Securities Limited, as
representatives of the several Underwriters named therein (the "Underwriters"),
relating to an initial public offering of Shares by the Company. Pursuant to
the Underwriting Agreement, DLJSC and the other Underwriters severally agreed
to purchase an aggregate of 5,700,000 Shares from the Company and were granted
an option to purchase an additional 855,000 Shares from the Selling
Stockholders. Such initial public offering (including the exercise by the
Underwriters of such option) was consummated on June 5, 1996.
In connection with the above-mentioned initial public offering by the
Company, each of Growth II and DLJCC entered into a lock-up agreement
(collectively, the "Lock-Up Agreements"), dated May 3, 1996, pursuant to which
each of Growth II and DLJCC has agreed, subject to certain exceptions, not to
sell or otherwise dispose of any of the Growth Shares or the DJLCC Shares for a
period of 180 days from May 30, 1996 without the prior written consent of the
representatives of the Underwriters other than DLJSC.
In addition, the Company and each of Growth II and DLJCC are parties to a
Registration Agreement (the "Registration Agreement"), dated January 4, 1995,
by and among the Company, the Investors named therein (including, without
limitation, each of Growth II and DLJCC) (collectively, the "Investors") and
Paul J. and Teresa M. Klaassen (collectively, the "Founders"). Pursuant to the
terms of the Registration Agreement, the Founders, as holders of 5,164,475
Shares (the "Founders' Shares"), and each of the Investors, as the holders of
an aggregate of 2,444,444 Shares issued upon conversion of the Company's Series
A Convertible Preferred Stock (the "Investors' Shares"), are entitled to
certain rights with respect to the registration of such shares (the
"Registrable Securities") under the Securities Act of 1933, as amended (the
"Securities Act").
Demand Registration. Pursuant to the terms of the Registration Agreement,
holders of Registrable Securities may request that the Company offer some or
all of such Registrable Securities to the public pursuant to an effective
registration statement under the Securities Act. Registration on Form S-1
may be demanded by either of the Founders or by the holders of not less than
a majority of the Investors' Shares. Registration on Form S-2 or Form S-3
may be demanded by either 25% of the holders of Investors' Shares or by
holders of 25% of the then outstanding Founders' Shares, provided that the
aggregate offering value of the Registrable Securities requested to be
included in such registration must be reasonably expected to equal at least
$1 million. The holders have the right to require the Company to file a
registration statement on Form S-1 two times and on Form S-2 or Form S-3 an
unlimited number of times.
Incidental (i.e., "Piggyback") Registration. In addition, the
Registration Agreement provides that if the Company at any time proposes to
register any of its securities under the Securities Act, on a form other
than Form S-4 or S-8, the holders of Registrable Securities are entitled to
have their shares included in such registration statement on a pro rata
basis, subject to certain other terms and conditions.
Page 19 of 114 Pages
<PAGE> 20
Except as stated in this Item 6, none of the Reporting Persons has any
contracts, arrangements, understandings or relationships (legal or otherwise)
with any other person with respect to the Shares, including, without
limitation, any agreements concerning (i) transfer or voting of any Shares,
(ii) finder's fees, (iii) joint ventures, (iv) loan or option arrangements, (v)
puts or calls, (vi) guarantees of profits, (vii) division of profits or losses
or (viii) the giving or withholding of proxies.
The foregoing response to this Item 6 is qualified in its entirety by
reference to the Underwriting Agreement, the Lock-Up Agreements and the
Registration Agreement, the full texts of which are filed as Exhibits 2 through
5 hereto and incorporated herein by this reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
1 Agreement among the Reporting Persons to file a joint statement on
Schedule 13D.
2. Underwriting Agreement, dated May 30, 1996, among the Company, the
Selling Stockholders and the Underwriters, relating to the Company's
initial public offering of Shares.
3. Lock-Up Agreement, dated May 3, 1996, between the Company and Growth
II.
4. Lock-Up Agreement, dated May 3, 1996, between the Company and DLJCC.
5. Registration Agreement, dated January 4, 1995, among the Company, the
Investors and the Founders.
Page 20 of 114 Pages
<PAGE> 21
SIGNATURE
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the information set forth in this statement is true, complete and
correct.
Dated: June 6, 1996
Sprout Growth II, L.P.
by: DLJ Capital Corporation
its: Managing General Partner
/s/ Thomas E. Siegler
-------------------------------------
Thomas E. Siegler
Secretary and Treasurer
Page 21 of 114 Pages
<PAGE> 22
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the information set forth in this statement is true, complete and
correct.
Dated: June 6, 1996
DLJ Capital Corporation
/s/ Thomas E. Siegler
-----------------------------------------
Thomas E. Siegler
Secretary and Treasurer
Page 22 of 114 Pages
<PAGE> 23
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the information set forth in this statement is true, complete and
correct.
Dated: June 6, 1996
Donaldson, Lufkin & Jenrette Securities
Corporation
/s/ Thomas E. Siegler
--------------------------------------------
Thomas E. Siegler
Senior Vice President
Pages 23 of 114 Pages
<PAGE> 24
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the information set forth in this statement is true, complete and
correct.
Dated: June 6, 1996
Donaldson, Lufkin & Jenrette, Inc.
/s/ Thomas E. Siegler
--------------------------------------------
Thomas E. Siegler
Senior Vice President
Page 24 of 114 Pages
<PAGE> 25
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the information set forth in this statement is true, complete and
correct.
Dated: June 6, 1996
The Equitable Companies Incorporated
/s/ Joanne T. Marren
---------------------------------------------
Joanne T. Marren
Senior Vice President and Deputy General
Counsel
Page 25 of 114 Pages
<PAGE> 26
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the information set forth in this statement is true, complete and
correct.
Dated: June 6, 1996
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
Uni Europe Assurance Mutuelle
Alpha Assurances I.A.R.D. Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri Clermont-Tonnerre, as AXA Voting
Trustee
/s/ Joanne T. Marren
--------------------------------------------
Joanne T. Marren
Attorney-in-fact
Page 26 of 114 Pages
<PAGE> 27
Schedule A
Executive Officers and Directors
of
DLJ Capital Corporation
The names of the Directors and the names and titles of the Executive
Officers of DLJ Capital Corporation ("DLJCC") and their business addresses and
principal occupations are set forth below. Each Director's or Executive
Officer's business address is that of DLJCC at 277 Park Avenue, New York, New
York 10172. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to DLJCC and each individual is a United States
citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C>
* Richard E. Kroon President and Chief
Executive Officer
* Anthony F. Daddino Vice President; Executive
Vice President and Chief
Financial Officer,
Donaldson, Lufkin &
Jenrette, Inc.
* Thomas E. Siegler Secretary and Treasurer;
Senior Vice President and
Secretary, Donaldson, Lufkin
& Jenrette, Inc.
- ---------------------------
* Director
</TABLE>
Page 27 of 114 Pages
<PAGE> 28
Schedule B
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette Securities Corporation
The names of the Directors and the names and titles of the Executive
Officers of Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC") and
their business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of DLJSC at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
DLJSC and each individual is a United States citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- ----------------------------
<S> <C>
*John S. Chalsty Chairman and Chief Executive
Officer; Chairman and Chief
Executive Officer,
Donaldson, Lufkin &
Jenrette, Inc.
*Joe L. Roby President and Chief
Operating Officer; President
and Chief Operating Officer,
Donaldson, Lufkin &
Jenrette, Inc.
*Carl B. Menges Vice Chairman of the Board;
Vice Chairman of the Board,
Donaldson, Lufkin &
Jenrette, Inc.
*Hamilton E. James Managing Director; Managing
Director, Donaldson, Lufkin
& Jenrette, Inc.
*Richard S. Pechter Managing Director; Managing
Director, Donaldson, Lufkin
& Jenrette, Inc.
*Theodore P. Shen Managing Director; Managing
Director, Donaldson, Lufkin
& Jenrette, Inc.
*Anthony F. Daddino Executive Vice President and
Chief Financial Officer;
Executive Vice President and
Chief Financial Officer,
Donaldson, Lufkin & Jenrette, Inc.
- -------------------------
*Director
</TABLE>
Page 28 of 114 Pages
<PAGE> 29
Schedule C
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the Executive
Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of DLJ at
277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DLJ and each
individual is a United States citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- ----------------------------
<S> <C>
*John S. Chalsty Chairman and Chief Executive
Officer; Chairman and Chief
Executive Officer,
Donaldson, Lufkin &
Jenrette, Inc.
*Joe L. Roby President and Chief
Operating Officer; President
and Chief Operating Officer,
Donaldson, Lufkin &
Jenrette, Inc.
*Claude Bebear (1) Chairman and Chief Executive
AXA Officer, AXA
23, avenue Matignon
75008 Paris, France
*Henri de Castries (1) Executive Vice President
AXA Financial Services and Life
23, avenue Matignon Insurance Activities, AXA
75008 Paris, France
*Kevin Dolan Executive Vice President,
AXA Asset Management AXA Asset Management
40, rue de Collissee
75008 Paris, France
*Louis Harris Chairman and Chief Executive
LH Research Officer, LH Research
152 East 38th Street (research)
New York, New York
10016-2605
</TABLE>
Page 29 of 114 Pages
<PAGE> 30
<TABLE>
<S> <C>
*Henri G. Hottingeur (2) Chairman and Chief Executive
Banque Hottingeur Officer, Banque Hottingeur
38, rue de Provence (banking)
75009 Paris, France
*W. Edwin Jarmain (3) President, Jarmain Group
Jarmain Group Inc. Inc. (private investment
95 Wellington Street holding company)
West Suite 805
Toronto, Canada
*Francis Jungers Retired Chairman, Arabian
19880 NW Nestucca Drive American Oil Company (oil
Portland, Oregon 97229 industry)
*Joseph J. Melone President and Chief
The Equitable Companies Executive Officer, The
Incorporated Equitable Companies
787 Seventh Avenue Incorporated
New York, New York 10019
*W. J. Sanders, III Chairman and Chief Executive
Advanced Micro Devices, Officer, Advanced Micro
Inc. Devices
901 Thompson Place
Sunnyvale, CA 94086
*Jerry M. de St. Paer Executive Vice President and
The Equitable Companies Chief Financial Officer, The
Incorporated Equitable Companies
787 Seventh Avenue Incorporated
New York, New York 10019
*John C. West Former Ambassador to Saudi
Bothea, Jordan & Griffin Arabia
23B Shelter Cove
Hilton Head Island, SC
29928
*Carl B. Menges Vice Chairman of the Board
*Hamilton E. James Managing Director
*Richard S. Pechter Managing Director
*Theodore P. Shen Managing Director
*Anthony F. Daddino Executive Vice President and
Chief Financial Officer
</TABLE>
Page 30 of 114 Pages
<PAGE> 31
<TABLE>
<S> <C>
*Robert J. Albano Senior Vice President and
Director of Compliance and
Regulatory Affairs
Michael M. Bendik Senior Vice President and
Chief Accounting Officer
Michael A. Boyd Senior Vice President and
General Counsel
Joseph D. Donnelly Senior Vice President and
One Pershing Plaza Associate General Counsel
Jersey City, NJ 07599
Stuart S. Flamberg Senior Vice President and
Director of Taxes
Roy A. Garman Senior Vice President and
Controller
Charles J. Hendrickson Senior Vice President and
Treasurer
Gerald B. Rigg Senior Vice President and
Director of Human Resources
Thomas E. Siegler Senior Vice President and
Secretary
Lucia D. Swanson Senior Vice President and
Associate General Counsel
- -----------------------------
*Director
(1) Citizen of the Republic of
France
(2) Citizen of Canada
(3) Citizen of Switzerland
</TABLE>
Page 31 of 114 Pages
<PAGE> 32
Schedule D
Executive Officers and Directors
of
The Equitable Companies Incorporated
The names of the Directors and the names and titles of the Executive
Officers of The Equitable Companies Incorporated ("EQ") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of EQ at
787 Seventh Avenue, New York, New York 10019. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to EQ and each
individual is a United States citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C>
*Claude Bebear (1) Chairman of the Board;
AXA Chairman and Chief Executive
23, avenue Matignon Officer, AXA
75008 Paris, France
*James M. Benson Senior Executive Vice
President and Chief
Operating Officer; President
and Chief Executive Officer,
The Equitable Life Assurance
Society of the United States
*Henri de Castries (1) Vice Chairman of the Board;
AXA Executive Vice President
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities
(outside of France), AXA
*John S. Chalsty Chairman and Chief Executive
Donaldson, Lufkin & Officer, Donaldson, Lufkin &
Jenrette, Inc. Jenrette, Inc.
277 Park Avenue
New York, NY 10172
Jerry M. de St. Paer Senior Executive Vice
President and Chief
Financial Officer; Executive
Vice President, The
Equitable Life Assurance
Society of the United States
*Joseph L. Dionne Chairman and Chief Executive
The McGraw Hill Companies Officer, The McGraw Hill
1221 Avenue of the Companies (publishing)
Americas
New York, NY 10020
</TABLE>
Page 32 of 114 Pages
<PAGE> 33
<TABLE>
<S> <C>
*William T. Esrey Chairman of the Board and
Sprint Corporation Chief Executive Officer, The
P.O. Box 11315 Sprint Corporation
Kansas City, MO 64112 (telecommunications)
*Jean-Rene Fourtou (1) Chairman and Chief Executive
Rhone-Poulenc S.A. Officer, Rhone-Poulenc S.A.
25 quai Paul Doumer (industry)
92408 Courbevoie,
France
Robert E. Garber Executive Vice President and
General Counsel
*Donald J. Greene Partner, LeBoeuf, Lamb,
LeBoeuf, Lamb, Greene & Greene & MacRae (law firm)
MacRae
125 West 55th Street
New York, NY 10019
*Anthony Hamilton (2) Group Chairman and Chief
35 Wilson Street Executive Officer, Fox-Pitt,
London, England EC2M 2SJ Kelton Group Limited
(Finance)
*John T. Hartley Retired Chairman and Chief
Harris Corporation Executive Officer, Harris
1025 Nasa Boulevard Corporation (manufacturer of
Melbourne, FL 32919 electronic, telephone and
copying systems)
*John H.F. Haskell, Jr. Director and Managing
Dillon, Read & Co., Inc. Director, Dillon, Read &
535 Madison Avenue Co., Inc. (investment
New York, NY 10028 banking firm)
*W. Edwin Jarmain (3) President, Jarmain Group
Jarmain Group Inc. Inc. (private investment
95 Wellington St. West holding company)
Suite 805
Toronto, Ontario M5J 2N7
Canada
</TABLE>
Page 33 of 114 Pages
<PAGE> 34
<TABLE>
<S> <C>
*Winthrop Knowlton Chairman, Knowlton Brothers,
Knowlton Brothers, Inc. Inc. (private investment
530 Fifth Avenue firm); President and Chief
New York, NY 10036 Executive Officer, Knowlton
Associates, Inc. (consulting
firm)
*Arthur L. Liman Partner, Paul, Weiss,
Paul, Weiss, Rifkind, Rifkind, Wharton & Garrison
Wharton & Garrison (law firm)
1285 Avenue of the
Americas
New York, NY 10019
Joanne T. Marren Senior Vice President and
Deputy General Counsel
William T. McCaffrey Executive Vice President and
Chief Administrative
Officer; Senior Executive
Vice President and Chief
Operating Officer, The
Equitable Life Assurance
Society of the United States
*Joseph J. Melone Chief Executive Officer and
President; Chairman of the
Board, The Equitable Life
Assurance Society of the
United States
Peter D. Noris Executive Vice President and
Chief Investment Officer;
Executive Vice President and
Chief Investment Officer,
The Equitable Life Assurance
Society of the United States
*Didier Pineau-Valencienne Chairman and Chief Executive
64-70, avenue Jean Officer, Schneider S.A.
Baptiste Clement (electric equipment)
92646 Boulogne Cedex,
France
*George J. Sella, Jr. Retired Chairman, President
American Cyanamid Company and Chief Executive Officer,
P.O. Box 3017 American Cyanamid Company
Newton, NJ 07860 (manufacturer pharmaceutical
products and agricultural
products)
Jose Suquet Executive Vice President;
Executive Vice President and
Chief Agency Officer; The
Equitable Life Assurance
Society of the United States
</TABLE>
Page 34 of 114 Pages
<PAGE> 35
<TABLE>
<S> <C>
Stanley B. Tulin Executive Vice President;
Senior Executive Vice
President and Chief
Financial Officer, The
Equitable Companies
Incorporated
*Dave H. Williams Chairman and Chief Executive
Alliance Capital Officer, Alliance Capital
Management Corporation Management Corp. (investment
1345 Avenue of the company)
Americas
New York, NY 10105
- ----------------------------
*Director
(1) Citizen of the Republic of
France
(2) Citizen of United Kingdom
(3) Citizen of Canada
</TABLE>
Page 35 of 114 Pages
<PAGE> 36
Schedule E
Executive Officers and
Members of Conseil d'Administration
of
AXA
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of AXA and their business addresses and
principal occupations are set forth below. If no address is given, the Member's
or Executive Officer's business address is that of AXA at 23, avenue Matignon,
75008 Paris, France. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to AXA and each individual is a citizen of
the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C>
*Claude Bebear Chairman and Chief Executive
Officer
*Antoine Bernheim Chairman and Chief Executive
Piazza Duca Degli Abruzzi Officer, Assicurazioni
2 Generali (insurance)
34132 Trieste, Italy
Henri de Castries Executive Vice President,
Financial Services and Life
Insurance Activities
(outside of France)
Francoise Colloc'h Executive Vice President,
Human Resources and Public
Relations
*Henri de Clermont-Tonnerre Chairman, Societe d'Armement
90, rue de Miromesnil et de Navigation Charles
75008 Paris, France Schiaffino (transportation)
*David Dautresme Partner and Managing
121, boulevard Haussman Director
75008 Paris, France Lazard Freres et Cie
(investment banking)
*Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
*Michel Francois-Poncet Chairman of the Supervisory
3, rue d'Autin Board of Compagnie
75002 Paris, France Financiere Paribas and
Banque Paribas (financial
services and banking)
*Patrice Garnier Retired
</TABLE>
Page 36 of 114 Pages
<PAGE> 37
<TABLE>
<S> <C>
*Gianfranco Gutty (1) Director and Executive
Piazza Duca Degli Abruzzi Officer, Assicurazioni
2 Generali S.p.A. (insurance)
34132 Trieste, Italy
*Anthony Hamilton (2) Group Chairman and Chief
35 Wilson Street Executive Officer, Fox-Pitt,
London, England EC2M 2SJ Kelton Group Limited
(Finance)
*Henri Hottinguer (3) Chairman and Chief Executive
38, rue de Provence Officer, Banque Hottinguer
75009 Paris, France (banking)
*Richard H. Jenrette (4) Retired
787 Seventh Avenue
New York, New York 10019
*Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
Gerard de la Martiniere Executive Vice President,
Corporate Finance and
Administrative Services
*Didier Pineau-Valencienne Chief Executive Officer,
64-70, avenue Jean Schneider S.A. (electric
Baptiste Clement equipment)
92646 Boulogne Cedex,
France
Claude Tendil Executive Vice President,
Insurance Activities (in
France) and Non-Life and
Composite Insurance
Activities (outside of
France)
</TABLE>
- --------------------------
* Member, Conseil
d'Administration
(1) Citizen of Italy
(2) Citizen of the United Kingdom
(3) Citizen of Switzerland
(4) Citizen of the United States
of America
Page 37 of 114 Pages
<PAGE> 38
Schedule F
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of Finaxa and their business addresses and
principal occupations are set forth below. If no address is given, the
Member's or Executive Officer's business address is that of Finaxa at 23,
avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each
occu`pation set forth opposite an individual's name refers to Finaxa and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- ----------------------------
<S> <C>
*Claude Bebear Chairman and Chief Executive
Officer; Chairman and Chief
Executive Officer, AXA
*Henri de Castries Executive Vice President,
Financial Services and Life
Insurance Activities
(outside of France), AXA
*Henri de Clermont-Tonnerre Chairman, Societe d'Armement
90, rue de Miromesnil et de Navigation Charles
75008 Paris, France Schiaffino (transportation)
*Jean-Rene Fourtou Chairman and Chief
25, quai Paul Doumer Executive Officer,
92408 Courbevoie, France Rhone-Poulenc S.A.
(industry)
*Patrice Garnier Retired
*Henri Hottinguer (1) Chairman and Chief
38, rue de Provence Executive Officer, Banque
75009 Paris, France Hottinguer (banking)
*Paul Hottinguer (1) Assistant Chairman and
38, rue de Provence Chief Executive Officer,
75009 Paris, France Banque Hottinguer
(banking)
*Henri Lachmann Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor
67000 Strasbourg, France Facom (office furniture)
</TABLE>
Page 38 of 114 Pages
<PAGE> 39
<TABLE>
<S> <C>
*Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
- -----------------------------
*Member, Conseil
d'Administration
(1) Citizen of Switzerland
</TABLE>
Page 39 of 114 Pages
<PAGE> 40
Schedule G
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and
their business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances I.A.R.D. Mutuelle at 21/25, rue de Chateaudun, 75009 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Assurances I.A.R.D. Mutuelle and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- ----------------------------
<S> <C>
*Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
Jean-Luc Bertozzi Assistant Chief Executive
21/25, rue de Chateaudun Officer
75009 Paris, France
*Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities
(outside of France), AXA
*Jean-Pierre Chaffin Manager, Federation de la
5, rue la Bruyere Metallurgie (industry)
75009 Paris, France
*Gerard Coutelle Retired
*Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
*Patrice Garnier Retired
*Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
</TABLE>
Page 40 of 114 Pages
<PAGE> 41
<TABLE>
<S> <C>
*Francoise Richer Retired
*Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
*Claude Tendil General Manager; Executive
23, avenue Matignon Vice President, Insurance
75008 Paris, France Activities (in France) and
Non-Life and Composite
Insurance Activities
(outside of France)
*Nicolas Thiery Chairman and Chief Executive
6 Cite de la Chapelle Officer, Etablissements
75018 Paris, France Jaillard (management
consulting)
*Francis Vaudour Chief Executive Officer,
14, boulevard Industriel Segafredo Zanetti France
76301 Sotteville les S.A. (coffee importing and
Rouen, France processing)
- ------------------------
*Member, Conseil
d'Administration
</TABLE>
Page 41 of 114 Pages
<PAGE> 42
Schedule H
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of AXA Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances Vie Mutuelle at 21/25, rue de Chateaudun, 75009 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Assurances Vie Mutuelle and each individual is
a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- ----------------------------
<S> <C>
*Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
Jean-Luc Bertozzi Assistant Chief Executive
21/25, rue de Chateaudun Officer
75009 Paris, France
*Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities
(outside of France), AXA
*Jean-Pierre Chaffin Manager, Federation de la
5, rue la Bruyere Metallurgie (industry)
75009 Paris, France
*Henri de Clermont-Tonnerre Chairman, Societe d'Armement
90, rue de Miromesnil et de Navigation Charles
75008 Paris, France Schiaffino (transportation)
*Gerard Coutelle Retired
*Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
</TABLE>
Page 42 of 114 Pages
<PAGE> 43
<TABLE>
<S> <C>
*Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
*Francoise Richer Retired
*Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan, France
*Claude Tendil General Manager; Executive
23, avenue Matignon Vice President, Insurance
75008 Paris, France Activities (in France) and
Non-Life and Composite
Insurance Activities
(outside of France)
*Nicolas Thiery Chairman and Chief Executive
6 Cite de la Chapelle Officer, Etablissements
75018 Paris, France Jaillard (management
consulting)
*Francis Vaudour Chief Executive Officer,
14, boulevard Industriel Segafredo Zanetti France
76301 Sotteville les Rouen, S.A. (coffee importing and
France processing)
- -----------------------
*Member, Conseil
d'Administration
</TABLE>
Page 43 of 114 Pages
<PAGE> 44
Schedule I
Executive Officers and
Members of Conseil d'Administration
of
UNI EUROPE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of Uni Europe Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of Uni Europe Assurance Mutuelle at 24, rue Druout, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to Uni Europe Assurance Mutuelle and each individual is a citizen
of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- ----------------------------
<S> <C>
*Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
*Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities
(outside of France), AXA
*Francis Cordier Chairman and Chief Executive
rue Nicephone Niepce BP Officer, Group Demay Lesieur
232 76304 Sotteville Les (food industry)
Rouen, France
*Gerard Coutelle Retired
*Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
*Patrice Garnier Retired
*Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
*Francis Magnan Chairman and Chief Executive
50, boulevard des Dames Officer, Groupe Daher (air
13002 Marseille, France and sea transportation)
</TABLE>
Page 44 of 114 Pages
<PAGE> 45
<TABLE>
<S> <C>
*Jean de Ribes Chief Executive Officer,
13, rue Notre Dame des Banque Rivaud (banking)
Victoires 75008 Paris,
France
*Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
*Jean-Paul Saillard Corporate Secretary, AXA
23, avenue Matignon
75008 Paris, France
*Claude Tendil General Manager; Executive
23, avenue Matignon Vice President, Insurance
75008 Paris, France Activities (in France) and
Non-Life and Composite
Insurance Activities
(outside of France)
- -----------------------
*Member, Conseil
d'Administration
</TABLE>
Page 45 of 114 Pages
<PAGE> 46
Schedule J
Executive Officers and
Members of Conseil d'Administration
of
ALPHA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of Alpha Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boildieu,
Cedex 11, 92042 Paris La Defense, France. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Alpha Assurances
Vie Mutuelle and each individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C>
*Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
*Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities
(outside of France), AXA
*Henri de Clermont-Tonnerre Chairman, Societe d'Armement
90, rue de Miromesnil et de Navigation Charles
75008 Paris, France Schiaffino (transportation)
*Claude Fath Manager
*Jean-Rene Fourtou Chairman and Chief Executive
25, quai Paul Doumer Officer, Rhone-Poulenc S.A.
92408 Courbevoie, France (industry)
*Patrice Garnier Retired
*Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
</TABLE>
Page 46 of 114 Pages
<PAGE> 47
<TABLE>
<S> <C>
*Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
*Claude Tendil General Manager; Executive
23, avenue Matignon Vice President, Insurance
75008 Paris, France Activities (in France) and
Non-Life and Composite
Insurance Activities
(outside of France)
*Francis Vaudour Chief Executive Officer,
14, boulevard Industriel Segafredo Zanetti France
76301 Sotteville les Rouen S.A. (coffee importing and
France processing)
- --------------------------
*Member, Conseil
d'Administration
</TABLE>
Page 47 of 114 Pages
<PAGE> 48
Schedule K
Executive Officers and
Members of Conseil d'Administration
of
ALPHA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of Alpha Assurances I.A.R.D. Mutuelle and
their business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of Alpha Assurances I.A.R.D. Mutuelle at Tour Franklin, 100/101 Terrasse
Boildieu, Cedex 11, 92042 Paris La Defense, France. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
Alpha Assurances I.A.R.D. Mutuelle and each individual is a citizen of the
Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
<S> <C>
*Claude Bebear Chairman and Chief Executive
23, avenue Matignon Officer; Chairman and Chief
75008 Paris, France Executive Officer, AXA
*Henri Brischoux Manager, AXA
23, avenue Matignon
75008 Paris, France
*Henri de Castries Executive Vice President,
23, avenue Matignon Financial Services and Life
75008 Paris, France Insurance Activities
(outside of France), AXA
*Henri de Clermont-Tonnerre Chairman, Societe d'Armement
90, rue de Miromesnil et de Navigation Charles
75008 Paris, France Schiaffino (transportation)
*Bernard Cornille Audit Manager, AXA
23, avenue Matignon
75008 Paris, France
*Claude Fath Manager, Alpha Assurances
Vie Mutuelle
*Patrice Garnier Retired
</TABLE>
Page 48 of 114 Pages
<PAGE> 49
<TABLE>
<S> <C>
*Henri Lachmann Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom
67000 Strasbourg, France (office furniture)
*Claude Peter Retired
*Georges Rousseau Chairman, Apave Normandies
2, rue des Mouettes (consulting)
76130 Mont Saint Aignan,
France
*Claude Tendil General Manager; Executive
23, avenue Matignon Vice President, Insurance
75008 Paris, France Activities (in France) and
Non-Life and Composite
Insurance Activities
(outside of France)
- ------------------------
*Member, Conseil
d'Administration
</TABLE>
Page 49 of 114 Pages
<PAGE> 1
Exhibit 1
Joint Filing Agreement
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, each of the persons named below agrees to the joint filing of
a Statement on Schedule 13D (including amendments thereto) with respect to the
common stock, $0.01 par value per share, of Sunrise Assisted Living, Inc., a
[Delaware] corporation, and further agrees that this Joint Filing Agreement be
included as an exhibit to such filings provided that, as contemplated by
Section 13d-1(f)(l)(ii), no person shall be responsible for the completeness or
accuracy of the information concerning the other persons making the filing,
unless such person knows or has reason to believe that such information is
inaccurate. This Joint Filing may be executed in any number of counterparts,
all of which together shall constitute one and the same instrument.
Sprout Growth II, L.P.
by: DLJ Capital Corporation
its: Managing General Partner
By: /s/ Thomas E. Siegler
---------------------------------
Thomas E. Siegler
Secretary and Treasurer
DLJ Capital Corporation
By: /s/ Thomas E. Siegler
---------------------------------
Thomas E. Siegler
Secretary and Treasurer
Donaldson, Lufkin & Jenrette Securities Corporation
By: /s/ Thomas E. Siegler
---------------------------------
Thomas E. Siegler
Senior Vice President
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Thomas E. Siegler
---------------------------------
Thomas E. Siegler
Senior Vice President
Page 50 of 114 Pages
<PAGE> 2
The Equitable Companies Incorporated
By: /s/ Joanne T. Marren
-----------------------------------
Joanne T. Marren
Senior Vice President and Deputy General Counsel
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
Uni Europe Assurance Mutuelle
Alpha Assurances I.A.R.D. Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri Clermont-Tonnerre, as AXA Voting Trustee
Signed on behalf of each of the above
By: /s/ Joanne T. Marren
-----------------------------------
Joanne T. Marren
Attorney-in-fact
Page 51 of 114 Pages
<PAGE> 1
Exhibit 2
5,700,000 Shares
SUNRISE ASSISTED LIVING, INC.
Common Stock
UNDERWRITING AGREEMENT
May 30, 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ALEX. BROWN & SONS INCORPORATED
NATWEST SECURITIES LIMITED
As representatives of the
several underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Sunrise Assisted Living, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell 5,700,000 shares of its Common Stock, $.01 par value
per share ("Common Stock"), to the several underwriters named in Schedule I
hereto (the "Underwriters"). Such 5,700,000 shares of Common Stock are
hereinafter referred to as the "Firm Shares"). In addition, the stockholders
of the Company named in Schedule II hereto (collectively, the "Selling
Stockholders"), propose to sell to the several Underwriters not more than
855,000 additional shares of Common Stock (the "Additional Shares") if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
consist of authorized and unissued shares to be issued and sold by the Company
and the Additional Shares consist of issued and outstanding shares to be sold
by the Selling Stockholders. The Firm Shares and the Additional Shares are
herein collectively called the "Shares". The Company and the Selling
Stockholders are hereinafter collectively called the "Sellers".
<PAGE> 2
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-1 including
a prospectus relating to the Shares, which may be amended. The registration
statement as amended at the time when it becomes effective, including a
registration statement (if any) filed pursuant to Rule 462(b) under the Act
increasing the size of the offering registered under the Act and information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is hereinafter referred to
as the "Registration Statement", and the prospectus in the form first used to
confirm sales of Shares is hereinafter referred as the "Prospectus".
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, (i) the Company agrees to issue and sell 5,700,000 Firm
Shares to the Underwriters and (ii) each Underwriter agrees, severally and not
jointly, to purchase from the Company at a price per share of $20.00 (the
"Purchase Price") the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) the Selling
Stockholders agree to sell up to 855,000 Additional Shares to the Underwriters
and (ii) the Underwriters shall have the right to purchase, severally and not
jointly, up to an aggregate of 855,000 Additional Shares from the Selling
Stockholders at the Purchase Price. Additional Shares may be purchased solely
for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Selling Stockholders, care of the Company, within
30 days after the date of this Agreement. You shall give any such notice on
behalf of the Underwriters and such notice shall specify the aggregate number
of Additional Shares to be purchased pursuant to such exercise and the date for
payment and delivery thereof. The date specified in any such notice shall be a
business day (i) no earlier than the Closing Date (as hereinafter defined),
(ii) no later than ten business days after such notice has been given and (iii)
no earlier than two business days after such notice has been given. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Selling Stockholders the number of
Additional Shares (subject to such adjustments to eliminate fractional shares
as you may determine) which bears the same proportion to the total number of
Additional Shares to be purchased from the Selling Stockholders as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
bears to the total number of Firm Shares.
The Company agrees that the Company shall, concurrently with the
execution of this Agreement, deliver letter agreements executed by (i) each of
the directors and officers of the Company and (ii) each stockholder listed on
Annex I hereto, pursuant to which each
- 2 -
<PAGE> 3
such person agrees, not to offer, sell, contract to sell, grant any option to
purchase, or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or in any
other manner transfer all or a portion of the economic consequences associated
with the ownership of any Common Stock, except to the Underwriters pursuant to
this Agreement, for a period of 180 days after the effective date of the
Registration Statement, other than (i) as a gift or gifts, provided the donee
or donees thereof agree in writing to be bound such letter agreement, (ii)
transfers to a transferor's affiliates, as such term is defined in Rule 405
promulgated under the Act, provided the transferee agrees in writing to be
bound by such letter agreement, or (iii) with the prior written consent of
Donaldson, Lufkin & Jenrette Securities Corporation (except as to shares held
by affiliates of Donaldson, Lufkin & Jenrette Securities Corporation which
require the prior written consent of Alex. Brown & Sons Incorporated and
NatWest Securities Limited). Notwithstanding the foregoing, during such period
the Company (i) may grant stock options (and may issue shares of its Common
Stock upon exercise thereof) pursuant to the Company's existing 1995 Stock
Option Plan or the Company's existing 1996 Directors' Stock Option Plan
(collectively, the "Option Plans"), (ii) may issue shares of Common Stock upon
the exercise of any of the 450,000 stock options granted to David W. Faeder
outside of the Option Plans, (iii) may issue shares of Common Stock upon the
exercise of the 50,000 warrants outstanding on the date hereof or upon the
conversion of the 2,444,444 shares of Series A Convertible Preferred Stock of
the Company outstanding on the date hereof, and (iv) may issue shares of Common
Stock in connection with the Company's acquisition of assets of, or an
ownership interest in, another business or entity, provided, however, that,
without the prior written consent of Donaldson, Lufkin & Jenrette Securities
Corporation, the Company may not (i) register such shares of Common Stock under
the Act for a period of 180 days after the effective date of the Registration
Statement or (ii) grant any registration rights with respect to such shares of
Common Stock that are exercisable within 180 days after the effective date of
the Registration Statement.
3. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the effective time of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 10:00 A.M., New York City time, on
the third or fourth business day (unless otherwise permitted by the Commission
pursuant to Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) following the date of the initial public offering (the
"Closing Date"), at the offices of Hogan & Hartson L.L.P., 555 Thirteenth
Street, NW, Washington, D.C. 20004, or at such other place outside the State of
New York as you shall designate. The Closing Date and the location of delivery
of and the form of payment for the Firm Shares may be varied by agreement
between you and the Company.
- 3 -
<PAGE> 4
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the offices of Hogan &
Hartson L.L.P., 555 Thirteenth Street, NW, Washington, D.C. 20004, or at such
other place as you shall designate, at 10:00 A.M., New York City time, on the
date specified in the applicable exercise notice given by you pursuant to
Section 2 (an "Option Closing Date"). Any such Option Closing Date and the
location of delivery of and the form of payment for such Additional Shares may
be varied by agreement between you and the Sellers.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day next
preceding the Closing Date or an Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or an Option Closing Date, as the case may be, with any
transfer taxes thereon duly paid by the respective Sellers, for the respective
accounts of the several Underwriters, against payment of the Purchase Price
therefor by wire transfer of immediately available funds to the order of the
applicable Sellers.
5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by
you, to confirm such advice in writing, (i) when any
post-effective amendment to the Registration Statement becomes
effective, (ii) of any request by the Commission for
amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
of the suspension of qualification of the Shares for offering
or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, and (iv) of the occurrence of
any event during the period referred to in paragraph (e) below
which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish to you, without charge, four
signed copies of the Registration Statement as first filed
with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to
it, without exhibits, as you may reasonably request.
- 4 -
<PAGE> 5
(c) Not to file any amendment or supplement to
the Registration Statement, whether before or after the time
when it becomes effective, or to make any amendment or
supplement to the Prospectus of which you shall not previously
have been advised or to which you shall reasonably object; and
to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of
the Shares by you, and to use its best efforts to cause the
same to become promptly effective.
(d) Promptly after the Registration Statement
becomes effective, and from time to time thereafter for such
period as a prospectus is required by law to be delivered in
connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the
Prospectus (and of any amendment or supplement to the
Prospectus) as such Underwriter or dealer may reasonably
request.
(e) If during the period specified in paragraph
(d) any event shall occur as a result of which, in the
judgment of the Company or in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, forthwith to
prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with law,
and to furnish to each Underwriter and to such dealers as you
shall specify, such number of copies thereof as such
Underwriter or dealers may reasonably request.
(f) Prior to any public offering of the Shares,
to cooperate with you and counsel for the Underwriters in
connection with the registration or qualification of the
Shares for offer and sale by the several Underwriters and by
dealers under the state securities or Blue Sky or real estate
syndication laws of such jurisdictions as you may request, to
continue such qualification in effect so long as required for
distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in
order to effect such registration or qualification; provided,
however, that the Company shall not be obligated in connection
therewith or as a condition thereof to (i) file any general
consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not otherwise
required to so file a general consent to service of process or
to be so qualified, or (ii) take any action that would subject
it to income taxation in any jurisdiction in which it is not
otherwise subject to income
- 5 -
<PAGE> 6
taxation. In addition, the Company agrees to comply in all
material respects with (i) the undertakings set forth in
numbered paragraphs 12, 13, 14 and 18 of its "Application for
Exemption Under Sections 352-g(2) and 359-f(2) of the New York
General Business Law for a Real Estate Syndication Offering
Registered with the Securities and Exchange Commission Under
the Federal Securities Act of 1933", dated March 21, 1996, as
amended to date and as may be amended hereafter, and (ii) any
applicable provisions of Section 352-e of the New York General
Business Law or the rules and regulations promulgated
thereunder.
(g) To mail and make generally available to its
stockholders as soon as reasonably practicable, but in any
event not later than the 90th day following the end of the
fiscal quarter first occurring after the first anniversary of
the effective date of the Registration Statement, an earning
statement covering a period of at least twelve months after
the effective date of the Registration Statement which shall
satisfy the provisions of Section 11(a) of the Act and Rule
158 thereunder.
(h) For a period of five (5) years from the date
of this Agreement, to furnish to you as soon as available
copies of all annual reports and other documents, reports,
financial statements and information (i) furnished by the
Company to its stockholders, (ii) furnished to The Nasdaq
Stock Market, Inc. National Market (the "Nasdaq National
Market") or any securities exchange upon which the Common
Stock may be listed or quoted pursuant to the requirements of
or agreements with such market or exchange or (iii) filed with
the Commission under or pursuant to the Act or the Exchange
Act.
(i) To pay all costs, expenses, fees and transfer
taxes incident to (i) the preparation, printing, filing and
distribution under the Act of the Registration Statement
(including financial statements and exhibits), each
preliminary prospectus and all amendments and supplements to
any of them prior to or during the period specified in
paragraph (e), (ii) the printing and delivery of the
Prospectus and all amendments or supplements to it during the
period specified in paragraph (e), (iii) the printing and
delivery of this Agreement, the Preliminary and Supplemental
Blue Sky Memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in
connection with the offering of the Shares (including in each
case any disbursements of counsel for the Underwriters
relating to such printing and delivery), (iv) the registration
or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states (including
in each case the fees and disbursements of counsel for the
Underwriters relating to such registration or qualification
and memoranda relating thereto), (v) filings and clearance
with the National
- 6 -
<PAGE> 7
Association of Securities Dealers, Inc. ("NASD") in connection
with the offering, (vi) the listing of the Shares on the
Nasdaq National Market, (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and
supplements thereto as may be reasonably requested for use in
connection with the offering or sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold and
(viii) the performance by the Sellers of their other
obligations under this Agreement. The Selling Stockholders
have agreed with the Company to reimburse the Company for a
portion of such expenses.
(j) To use its best efforts to maintain the
inclusion of the Common Stock in the Nasdaq National Market
(or on a national securities exchange) for a period of five
years after the effective date of the Registration Statement.
(k) To use its best efforts to do and perform all
things required or necessary to be done and performed under
this Agreement by the Company prior to the Closing Date or any
Option Closing Date, as the case may be, and to satisfy all
conditions precedent on its part to the delivery of the
Shares.
6. Representations and Warranties of the Company and the Selling
Stockholders. Each of the Company and the Selling Stockholders, jointly and
severally, represents and warrants to each Underwriter that:
(a) The Registration Statement has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for
such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b)(i) The Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and (iii) the
Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (b)
do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in
- 7 -
<PAGE> 8
writing by or on behalf of such Underwriter through you
expressly for use therein.
(c) Each preliminary prospectus filed as part of
the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
Act, and each Registration Statement filed pursuant to Rule
462(b) under the Act, if any, complied when so filed in all
material respects with the Act; and did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The Company has been duly organized, is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has the corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, and is
duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing
of property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of
the Company and the Subsidiaries (hereafter defined), taken as
a whole.
(e) All of the outstanding shares of capital
stock of the Company (including the Shares to be sold by the
Selling Stockholders) have been duly authorized and validly
issued and are fully paid and non-assessable, have been issued
in compliance with all federal and state securities laws, and
were not issued in violation of or subject to any preemptive
or similar rights. The Firm Shares to be issued and sold by
the Company hereunder have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered to the Underwriters against payment
therefor as provided in this Agreement, will be duly and
validly issued and fully paid and non-assessable, and will be
sold free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest; and no preemptive
right, co-sale right, tag along right, registration right,
right of first refusal or other similar right of stockholders
exists with respect to any of the Firm Shares or the issuance
and sale thereof, other than those that have been expressly
waived prior to the date hereof and those that will
automatically expire upon the consummation of the transactions
contemplated by this Agreement on the Closing Date. No
further consent, approval or authorization of any stockholder,
the Board of Directors of the Company, any court or
governmental agency or body, or others is required for the
issuance and sale or transfer of the Firm Shares except as may
be required under the
- 8 -
<PAGE> 9
federal securities laws or under any state or other
securities, Blue Sky or real estate syndication laws and
except as may be required to be obtained by the Underwriters.
Except as disclosed in the Prospectus, there are no
stockholders agreements or voting agreements with respect to
the Common Stock to which the Company is a party or, to the
knowledge of the Company, between or among any of the
Company's stockholders, other than those that will
automatically terminate upon the consummation of the
transactions contemplated by this Agreement on the Closing
Date.
(f) The authorized capital stock of the Company
(i) is as set forth in the Prospectus under the caption
"Capitalization" and (ii) conforms to the description thereof
and the statements relating thereto contained in the
Prospectus.
(g) All of the consolidated corporations,
partnerships and limited liability companies in which the
Company has a direct or indirect ownership interest are listed
in Exhibit 21 to the Registration Statement (collectively, the
"Subsidiaries"). The Company's ownership interest in each of
the facilities listed in the Prospectus under the caption
"Business--Owned Facilities" is owned by the Company directly
or indirectly through one or more Subsidiaries and the
Company's direct or indirect percentage ownership interests in
such facilities are as described under such caption.
(h) Each Subsidiary that is a corporation (a
"Corporate Subsidiary") has been duly organized, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation and has the corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus,
and is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing
of property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole. All of
the outstanding shares of capital stock of each Corporate
Subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable, were issued and sold in
compliance with all applicable federal and state securities
laws, were not issued in violation of or subject to any
preemptive or similar rights, and are owned by the Company
directly, or indirectly through one of the other Subsidiaries,
free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature, except (i) for
those encumbrances disclosed in the Prospectus, (ii) for
interests or liens held by others as security for indebtedness
of the Company or any Subsidiary disclosed in the Prospectus
and (iii) for transfer
- 9 -
<PAGE> 10
restrictions under applicable federal and state securities and
real estate syndication laws.
(i) Each Subsidiary that is a limited partnership
(a "Limited Partnership Subsidiary") has been duly organized,
is validly existing as a limited partnership in good standing
under the laws of its jurisdiction of organization and has the
limited partnership power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectus, and is duly qualified and is in
good standing (where applicable) as a foreign limited
partnership authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing
of property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole. All
outstanding limited partnership interests in the Limited
Partnership Subsidiaries were issued and sold in compliance
with the applicable limited partnership agreements of such
Limited Partnership Subsidiaries and all applicable federal
and state securities laws, and the limited partnership
interests therein held directly or indirectly by the Company
are owned free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature, except
(i) for those encumbrances disclosed in the Prospectus, (ii)
for interests or liens held by others as security for
indebtedness of the Company or any Subsidiary disclosed in the
Prospectus, (iii) to the extent provided in the applicable
limited partnership agreements of such Limited Partnership
Subsidiaries and (iv) for transfer restrictions under
applicable federal and state securities and real estate
syndication laws. To the knowledge of the Company, each
limited partnership agreement pursuant to which the Company or
a Subsidiary holds a partnership interest in a Limited
Partnership Subsidiary is in full force and effect and
constitutes the legal, valid and binding agreement of the
parties thereto, enforceable against such parties in
accordance with the terms thereof, except as enforcement
thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles. There has been
no material breach of or default under, and no event which
with notice or lapse of time would constitute a material
breach of or default under, such limited partnership
agreements by the Company or any Subsidiary or, to the
Company's knowledge, any other party to such agreements.
(j) Each Subsidiary that is a limited liability
company (an "LLC Subsidiary") has been duly organized, is
validly existing as a limited liability company in good
standing under the laws of its jurisdiction of organization
and has the limited liability company power and authority to
own, lease and operate its properties and to conduct its
business as described in the
- 10 -
<PAGE> 11
Prospectus, and is duly qualified and is in good standing
(where applicable) as a foreign limited liability company
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole. All outstanding
membership interests in the LLC Subsidiaries were issued and
sold in compliance with the applicable operating agreements of
such LLC Subsidiaries and all applicable federal and state
securities laws, and the membership interests therein held
directly or indirectly by the Company are owned free and clear
of any security interest, claim, lien, encumbrance or adverse
interest of any nature, except (i) for those encumbrances
disclosed in the Prospectus, (ii) for interests or liens held
by others as security for indebtedness of the Company or any
Subsidiary disclosed in the Prospectus, (iii) to the extent
provided in the applicable operating agreements of such LLC
Subsidiaries and (iv) for transfer restrictions under
applicable federal and state securities and real estate
syndication laws. To the knowledge of the Company, each
operating agreement pursuant to which the Company or a
Subsidiary holds a membership interest in an LLC Subsidiary is
in full force and effect and constitutes the legal, valid and
binding agreement of the parties thereto, enforceable against
such parties in accordance with the terms thereof, except as
enforcement thereof may be limited by bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors'
rights generally or by general equitable principles. There
has been no material breach of or default under, and no event
which with notice or lapse of time would constitute a material
breach of or default under, such operating agreements by the
Company or any Subsidiary or, to the Company's knowledge, any
other party to such agreements.
(k) Neither the Company nor any of the
Subsidiaries is in violation of its respective charter,
by-laws, partnership agreement, operating agreement or other
governing document(s). Neither the Company nor any of the
Subsidiaries is in default in the performance of any
obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument material to the
conduct of the business of the Company and the Subsidiaries,
taken as a whole, to which the Company or any of the
Subsidiaries is a party or by which it or any of the
Subsidiaries or their respective property is bound, except for
any such defaults that would not have a material adverse
effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole. Neither
the Company nor any of the Subsidiaries is in material
violation of any order, writ, injunction, judgment or decree
of any court, government or governmental agency or
- 11 -
<PAGE> 12
body, domestic or foreign, having jurisdiction over the
Company or any of the Subsidiaries or over any of their
respective property. Neither the Company nor any of the
Subsidiaries is in violation of any law, ordinance, rule or
regulation applicable to the Company or any of the
Subsidiaries, which violation would have a material adverse
effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole.
(l) The Company has, and on the Closing Date will
have, full legal right, power and authority to enter into this
Agreement and, as to the Company, to issue, sell and deliver
the Firm Shares in the manner provided herein. This Agreement
has been duly authorized, executed and delivered by the
Company and this Agreement is a valid and binding agreement of
the Company enforceable in accordance with its terms, except
as rights to indemnity and contribution hereunder may be
limited by applicable law. The execution, delivery and
performance of this Agreement, compliance by the Company with
all the provisions hereof and the consummation by the Company
of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental
body (except as has been obtained and except as may be
required under the federal securities laws or the securities,
Blue Sky or real estate syndication laws of the various
states) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
charter, by-laws, partnership agreement, operating agreement
or other governing document(s) of the Company or any of the
Subsidiaries or any agreement, indenture or other instrument
to which the Company or any of the Subsidiaries is a party or
by which the Company or any of the Subsidiaries or their
respective property is bound, or violate or conflict with any
laws, administrative regulations or rulings or court decrees
applicable to the Company, any of the Subsidiaries or their
respective property, except as disclosed in the Prospectus and
except as rights to indemnity and contribution hereunder may
be limited by applicable law.
(m) Except as otherwise set forth in the
Prospectus, there are no material legal or governmental
proceedings pending or, to the Company's knowledge, threatened
or contemplated to which the Company or any of the
Subsidiaries is a party or of which any of their respective
property is the subject that (i) are required to be set forth
in the Registration Statement, (ii) could reasonably be
expected to result in a material adverse change in the
condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole, or (iii) could
reasonably be expected to adversely effect the issuance or
validity of the Firm Shares. No contract or document of a
character required to be described in the Registration
Statement or the Prospectus or
- 12 -
<PAGE> 13
to be filed as an exhibit to the Registration Statement is not
so described or filed as required.
(n) Neither the Company nor any of the
Subsidiaries has violated any foreign, federal, state or local
law or regulation relating to the protection of human health
and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental Laws"),
nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable
federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case could
reasonably be expected to result in any material adverse
change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole.
(o) Except as described in the Prospectus, the
Company and the Subsidiaries have operated and currently
operate their business in conformity with all applicable laws,
rules and regulations of each jurisdiction in which it is
conducting business, except where the failure to be so in
compliance would not have a material adverse effect on the
condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole. The Company and each
of the Subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease
and operate its respective properties and to conduct its
business; the Company and each of the Subsidiaries has
fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit; and, except as described in the Prospectus, such
permits contain no restrictions that are materially burdensome
to the Company or any of the Subsidiaries. The Company and
the Subsidiaries are not aware of any existing or imminent
matter which could reasonably be expected to adversely impact
their operations or business prospects other than as disclosed
in the Prospectus.
(p) Except as otherwise set forth in the
Prospectus or such as are not material to the business,
prospects, financial condition or results of operation of the
Company and the Subsidiaries, taken as a whole, the Company
and each of the Subsidiaries has good and marketable title,
free and clear of all liens, claims, encumbrances and
restrictions except liens for taxes not yet due and payable,
to all property and assets described in the
- 13 -
<PAGE> 14
Registration Statement as being owned by it (other than stock
or other ownership interests in Subsidiaries, which are the
subject of the representations in paragraphs (h) through (j)
above). The agreements to which the Company or any of the
Subsidiaries is a party described in the Registration
Statement and Prospectus are valid agreements, enforceable by
the Company and the Subsidiaries (as applicable), except as
the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally or by general equitable principles and, to the
Company's knowledge, the other contracting party or parties
thereto are not in material breach or material default under
any of such agreements. All leases to which the Company or
any of the Subsidiaries is a party are valid and binding and
no default has occurred or is continuing thereunder, which
could reasonably be expected to result in any material adverse
change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole, and the
Company and the Subsidiaries enjoy peaceful and undisturbed
possession under all such leases to which any of them is a
party as lessee with such exceptions as do not materially
interfere with the use made by the Company or such Subsidiary.
(q) The Company and the Subsidiaries maintain
insurance with insurers of recognized financial responsibility
of the types and in the amounts generally deemed adequate for
their respective businesses and consistent with insurance
coverage maintained by similar companies in similar
businesses, including, but not limited to, insurance covering
real and personal property owned or leased by the Company or
its subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all
of which insurance is in full force and effect.
(r) Except as disclosed in the Prospectus, there
are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other ownership
interest in, the Company or any Subsidiary.
(s) There is (i) no material unfair labor
practice complaint pending against the Company or any of the
Subsidiaries or, to the knowledge of the Company, threatened
against any of them, before the National Labor Relations Board
or any state or local labor relations board, and no material
grievance or arbitration proceeding arising out of or under
any collective bargaining agreement is so pending against the
Company or any of the Subsidiaries or, to the knowledge of the
Company, threatened against any of them, and (ii) no material
strike, labor dispute, slowdown or
- 14 -
<PAGE> 15
stoppage pending against the Company or any of the
Subsidiaries or, to the knowledge of the Company, threatened
against it or any of the Subsidiaries. No collective
bargaining agreement exists with any of the Company's
employees and, to the Company's knowledge, no such agreement
is imminent.
(t) All material tax returns required to be filed
by the Company and each of the Subsidiaries in any
jurisdiction have been filed, other than those filings being
contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees
and other charges due pursuant to such returns or pursuant to
any assessment received by the Company or any of the
Subsidiaries have been paid, other than those being contested
in good faith and for which adequate reserves have been
provided.
(u) Except as described in the Prospectus, the
Company owns or possesses adequate rights to use all material
trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights and
licenses necessary for the conduct of its business and has no
reason to believe that the conduct of its business as
described in the Prospectus will conflict with any such rights
of others.
(v) Neither the Company nor any of the
Subsidiaries, nor to the knowledge of the Company, any agent
or other person acting on behalf of the Company or any
Subsidiary has, directly or indirectly, used any corporate
funds for unlawful contributions, gifts, entertainment or
other unlawful expenses related to foreign or domestic
political activity; made any unlawful payment to foreign or
domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds;
failed to disclose fully any contribution in violation of law;
violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or made any
unlawful bribe, rebate, payoff, influence, kick-back or other
unlawful payment.
(w) Ernst & Young LLP are independent public
accountants with respect to the Company as required by the
Act.
(x) The financial statements, together with
related schedules and notes forming part of the Registration
Statement and the Prospectus (and any amendment or supplement
thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of the
Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance
with generally accepted accounting principles
- 15 -
<PAGE> 16
consistently applied throughout the periods involved, except
as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement
and the Prospectus (and any amendment or supplement thereto)
is, in all material respects, accurately presented and
prepared (i) on a basis consistent with such financial
statements and the books and records of the Company and (ii)
as to pro forma information, in good faith on the basis of the
assumptions described in the Registration Statement and such
assumptions are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and
circumstances referred to therein.
(y) Neither the Company nor any of the
Subsidiaries is, nor will the Company or any of the
Subsidiaries become upon the sale of the Shares and the
application of the proceeds therefrom as described in the
Prospectus under the caption "Use of Proceeds," an "investment
company" or a person "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
(z) Except as disclosed in the Prospectus, no
holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security
of the Company.
(aa) The Company has complied with all provisions
of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(bb) The Company has filed a registration
statement pursuant to Section 12(g) of the Exchange Act, to
register the Common Stock, has filed an application to list
the Shares on the Nasdaq National Market, and has received
notification that the listing has been approved, subject to
official notice of issuance.
(cc) Except as disclosed in the Prospectus, there
are no business relationships or related party transactions
required to be disclosed therein by Item 404 of Regulation S-K
of the Commission.
(dd) The Company and each of the Subsidiaries
maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
- 16 -
<PAGE> 17
(ee) Subsequent to the respective dates as of
which information is given in the Registration Statement and
Prospectus, there has not been (i) any material adverse change
in the condition (financial or otherwise), earnings,
operations, business or business prospects of the Company and
the Subsidiaries, taken as a whole, (ii) any transaction that
is material to the Company and the Subsidiaries, taken as a
whole, except transactions entered into in the ordinary course
of business, (iii) any obligation, direct or contingent, that
is material to the Company and the Subsidiaries, taken as a
whole, incurred by the Company or the Subsidiaries, except
obligations incurred in the ordinary course of business, (iv)
any change in the capital stock (other than as expressly
contemplated therein) or outstanding indebtedness of the
Company or any of the Subsidiaries that is material to the
Company and the Subsidiaries, taken as a whole, (v) any
dividend or distribution of any kind declared, paid or made on
the capital stock of the Company or any of the Subsidiaries
(other than quarterly dividends on the Series B Exchangeable
Preferred Stock of the Company), or (vi) any loss or damage
(whether or not insured) to the property of the Company or any
of the Subsidiaries which has been sustained or will have been
sustained which has a material adverse effect on the condition
(financial or other), business, prospects, properties, net
worth or results of operations of the Company and the
Subsidiaries, taken as a whole.
(ff) The Company has not distributed and will not
distribute prior to the later of (i) the Closing Date, or any
date on which Additional Shares are to be purchased, as the
case may be, and (ii) completion of the distribution of the
Shares, any offering material in connection with the offering
and sale of the Shares other than any preliminary prospectuses
filed as part of the Registration Statement, the Prospectus,
the Registration Statement and other materials, if any,
permitted by the Act.
(gg) The Company has not taken and will not take,
directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares.
7. Representations and Warranties of the Selling Stockholders.
The Selling Stockholders jointly represent and warrant to each Underwriter
that:
(a) The Selling Stockholders are the lawful joint
owners, as tenants by the entireties, of the Additional Shares
that may be sold by the Selling Stockholders pursuant to
Section 2 of this Agreement and have, and on any Option
Closing Date will have, good and valid title to such Shares,
free of all restrictions on transfer, pledges, liens,
encumbrances, security interests and claims whatsoever.
- 17 -
<PAGE> 18
(b) Upon delivery of and payment for such Shares
pursuant to this Agreement, good and valid title to such
Shares will pass to the Underwriters, free and clear of all
restrictions on transfer, pledges, liens, encumbrances,
security interests and claims whatsoever; and no co-sale
right, tag along right, right of first refusal or other
similar right exists with respect to any of the Additional
Shares or the transfer and sale thereof, other than those that
have been expressly waived prior to the date hereof and those
that will automatically expire upon the consummation of the
transactions contemplated by this Agreement on the Closing
Date.
(c) The Selling Stockholders have, and on any
Option Closing Date will have, full legal right, power and
authority to enter into this Agreement and the Letter of
Transmittal and Custody Agreement between the Selling
Stockholders and First Union National Bank of North Carolina,
as Custodian (the "Custody Agreement"), and to sell, assign,
transfer and deliver such Shares in the manner provided herein
and therein, and this Agreement and the Custody Agreement have
been duly executed and delivered by the Selling Stockholders
and each of this Agreement and the Custody Agreement is a
valid and binding agreement of the Selling Stockholders
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors'
rights generally or by general equitable principles, and
except as rights to indemnity and contribution hereunder may
be limited by applicable law.
(d) The Selling Stockholders have not taken, and
will not take, directly or indirectly, any action designed to,
or which might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares
pursuant to the distribution contemplated by this Agreement;
and other than as permitted by the Act, the Selling
Stockholders have not distributed and will not distribute any
prospectus or other offering material in connection with the
offering and sale of the Shares.
(e) The execution, delivery and performance of
this Agreement by the Selling Stockholders, compliance by the
Selling Stockholders with all the provisions hereof and the
consummation by the Selling Stockholders of the transactions
contemplated hereby will not require any consent, approval,
authorization or order of any court, regulatory body,
administrative agency or other governmental body or of any
other governmental or non-governmental person or entity
(except as has been obtained and except as may be required
under the federal securities laws or the state securities,
Blue Sky or real estate syndication laws) and will not
conflict with or constitute a breach of any of the terms or
provisions of, or
- 18 -
<PAGE> 19
a default under, any agreement, indenture or other instrument
to which the Selling Stockholders are a party or by which the
Selling Stockholders or property of the Selling Stockholders
are bound, or violate or conflict with any laws,
administrative regulation or ruling or court decree applicable
to the Selling Stockholders or property of the Selling
Stockholders, except as rights to indemnity and contribution
hereunder may be limited by applicable law.
(f) Such parts of the Registration Statement
under the caption "Principal and Selling Stockholders" which
specifically relate to the Selling Stockholders do not, and
will not (after amendment, if necessary, for any change in
such information as provided in paragraph 7(g) below) on any
Option Closing Date, contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of circumstances under which they were made, not
misleading.
(g) At any time during the period described in
paragraph 5(e) hereof, if there is any change in the
information referred to in paragraph 7(f) above, the Selling
Stockholders will immediately notify you of such change.
8. Indemnification. (a) The Company and each Selling
Stockholder, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments caused
by or based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company by
or on behalf of any Underwriter through you expressly for use therein.
Notwithstanding the foregoing, the aggregate liability of the Selling
Stockholders pursuant to the provisions of this paragraph, or for any breaches
of one or more representations or warranties contained in this Agreement, shall
be limited to an amount equal to the aggregate purchase price (net of
underwriting discounts and commissions) received by the Selling Stockholders
from the sale of the Additional Shares hereunder; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages and liabilities and judgments purchased Shares, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
- 19 -
<PAGE> 20
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to
the written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment.
(b) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company or the Selling Stockholders, such Underwriter shall
promptly notify the Company and the Selling Stockholders in writing and the
Company and the Selling Stockholders shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all reasonable fees and expenses. Any Underwriter or any
such controlling person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the reasonable fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the employment of such counsel has been
specifically authorized in writing by the Company, (ii) the Company and the
Selling Stockholders shall have failed to assume the defense and employ counsel
or (iii) the named parties to any such action (including any impleaded parties)
include both such Underwriter or such controlling person and the Company or any
Selling Stockholder, as the case may be, and such Underwriter or such
controlling person shall have been advised by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the Company or the Selling Stockholders, as
the case may be, (in which case the Company and the Selling Stockholders shall
not have the right to assume the defense of such action on behalf of such
Underwriter or such controlling person, it being understood, however, that the
Company and the Selling Stockholders shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such Underwriters and
controlling persons, which firm shall be designated in writing by Donaldson,
Lufkin & Jenrette Securities Corporation and that all such fees and expenses
shall be reimbursed as they are incurred). A Seller shall not be liable for
any settlement of any such action effected without the written consent of such
Seller but if settled with the written consent of such Seller, such Seller
agrees to indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss or liability by reason of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
- 20 -
<PAGE> 21
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement, any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
Selling Stockholder and each person, if any, controlling such Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Sellers to
each Underwriter but only with reference to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter through
you expressly for use in the Registration Statement, the Prospectus or any
preliminary prospectus. In case any action shall be brought against the
Company, any of its directors, any such officer or any person controlling the
Company, or any Selling Stockholder or any person controlling such Selling
Stockholder, based on the Registration Statement, the Prospectus or any
preliminary prospectus and in respect of which indemnity may be sought against
any Underwriter, the Underwriter shall have the rights and duties given to the
Sellers (except that if any Seller shall have assumed the defense thereof such
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such Underwriter), and the Company, its
directors, any such officers and any person controlling the Company, and the
Selling Stockholders and any person controlling such Selling Stockholders,
shall have the rights and duties given to the Underwriters, by Section 8(b)
hereof.
(d) If the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Sellers on the one
hand and the Underwriters on the other hand from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Sellers and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Sellers and the Underwriters shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Sellers, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Sellers and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Company, the
Selling Stockholders or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
- 21 -
<PAGE> 22
The Sellers and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission and the
Selling Stockholders shall not be required to contribute any amount in excess
of the aggregate purchase price (net of underwriting discounts and commissions)
received by the Selling Stockholders from the sale of the Additional Shares
hereunder. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8(d) are
several in proportion to the respective number of Shares purchased by each of
the Underwriters hereunder and not joint.
(e) You, on behalf of the Underwriters, represent and
warrant that (i) the information set forth in the last paragraph on the front
cover page, on the inside front cover page concerning United Kingdom
purchasers, stabilization and over-allotment, and under the caption
"Underwriting" in the Registration Statement, any preliminary prospectus and
the Prospectus relating to the Shares (insofar as such information relates to
the Underwriters) constitutes the only information furnished by the
Underwriters for inclusion in the Registration Statement, any preliminary
prospectus and the Prospectus.
(f) The Company and the Selling Stockholders have entered
into a Registration Agreement dated January 4, 1995, pursuant to which the
Company has agreed to indemnify the Selling Stockholders against certain
liabilities (and vice versa).
(g) NatWest Securities Limited hereby agrees that, as
part of the distribution of the Common Stock offered by the Prospectus and
subject to certain exceptions, it will not offer any Common Stock within the
United States, its territories or possessions, or to persons who are citizens
thereof or residents therein. NatWest Securities Limited further represents
and agrees that: (i) it has not offered or sold and will not offer or sell any
shares of Common Stock to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (whether as principal or agent) for the purposes of their
businesses or otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of
- 22 -
<PAGE> 23
Securities Regulations 1995 or the Financial Services Act 1986 (the "Act");
(ii) it has complied and will comply with all applicable provisions of the Act
with respect to anything done by it in relation to the shares of Common Stock
in, from, or otherwise involving the United Kingdom; and (iii) it has only
issued or passed on and will only issue or pass on, in the United Kingdom, any
document that consists of or any part of listing particulars, supplementary
listing particulars, or any other document required or permitted to be
published by listing rules under Part IV of the Act, to a person who is of a
kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1995 or is a person to whom the document may
otherwise lawfully be issued or passed on.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the
Company and the Subsidiaries contained in this Agreement shall
be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become
effective not later than 5:00 P.M.(and in the case of a
Registration Statement filed under Rule 462(b) of the Act, not
later than 10:00 p.m.), New York City time, on the date of
this Agreement or at such later date and time as you may
approve in writing, and at the Closing Date no stop order
suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose
shall have been commenced or shall be pending before or, to
the knowledge of the Company or any Underwriter, contemplated
by the Commission.
(c)(i) Since the date of the latest balance sheet
included in the Registration Statement and the Prospectus,
there shall not have been any material adverse change, or any
development involving a prospective material adverse change,
in the condition (financial or other), business, prospects,
properties, net worth or results of operations, whether or not
arising in the ordinary course of business, of the Company,
(ii) since the date of the latest balance sheet included in
the Registration Statement and the Prospectus there shall not
have been any material adverse change, or any development
involving a prospective material adverse change, in the
capital stock or in the long-term debt of the Company from
that set forth in or contemplated by the Registration
Statement and Prospectus, (iii) the Company and the
Subsidiaries shall have no liability or obligation (other than
long-term debt, which is the subject of the immediately
preceding clause (ii) of this paragraph 9(c)), direct or
contingent, which is material to the Company and the
Subsidiaries, taken as a whole, other than those
- 23 -
<PAGE> 24
reflected in the Registration Statement and the Prospectus and
(iv) on the Closing Date you shall have received a certificate
dated the Closing Date, signed by Paul J. Klaassen and David
W. Faeder, in their capacities as the Chief Executive Officer
and Chief Financial Officer of the Company, respectively,
confirming the matters set forth in paragraphs (a), (b), and
(c) of this Section 9 and addressing such other matters as may
be reasonably requested by you or your counsel.
(d) All the representations and warranties of the
Selling Stockholders contained in this Agreement shall be true
and correct on the Closing Date with the same force and effect
as if made on and as of the Closing Date and you shall have
received a certificate to such effect, dated the Closing Date,
from the Selling Stockholders.
(e) You shall have received on the Closing Date
an opinion (reasonably satisfactory to you and counsel for the
Underwriters), dated the Closing Date, of Hogan & Hartson
L.L.P., counsel for the Company, to the effect that:
(i) The Company was duly incorporated,
and is validly existing and in good standing under
the laws of the State of Delaware as of the date
specified in such opinion letter, and has the
corporate power and corporate authority to own, lease
and operate its properties and to conduct its
business as described in the Prospectus. The Company
is authorized to transact business as a foreign
corporation in each jurisdiction identified on a
Schedule to such opinion letter, as of the respective
dates of the certificates specified therein.
(ii) The authorized, issued and
outstanding capital stock of the Company, as of March
31, 1996, was set forth under the caption
"Capitalization" in the Prospectus. All shares of
Common Stock shown as issued and outstanding under
said caption (including the Shares that may be sold
by the Selling Stockholders pursuant to Section 2 of
this Agreement) have been duly authorized and are
validly issued, fully paid and non-assessable, and
were not issued in violation of (A) any preemptive
rights under the Company's Certificate of
Incorporation or Delaware corporate law or (B) to
such counsel's knowledge, similar contractual rights.
(iii) The Company has the corporate power
and corporate authority to enter into this Agreement
and to consummate the transactions contemplated
hereby and this Agreement has been duly authorized,
executed and delivered by the Company. The Shares,
when issued and delivered to the
- 24 -
<PAGE> 25
Underwriters against payment therefor as provided in
this Agreement, will be duly authorized, validly
issued, fully paid and non-assessable, and will not
have been issued in violation of (A) any preemptive
rights under the Company's Certificate of
Incorporation or Delaware corporate law or (B) to
such counsel's knowledge, similar contractual rights.
(iv) Each of the Corporate Subsidiaries
incorporated in Virginia was incorporated, and is
validly existing and in good standing under the laws
of its jurisdiction of incorporation as of the
respective dates specified in such opinion letter and
has the corporate power and corporate authority to
own, lease and operate its properties and to conduct
its business as described in the Prospectus. Each
such Corporate Subsidiary is authorized to transact
business as a foreign corporation in each
jurisdiction identified on a Schedule to such opinion
letter, as of the respective dates of the
certificates specified therein.
(v) All of the outstanding shares of
capital stock of each such Corporate Subsidiary (a)
have been duly authorized and are validly issued,
fully paid and nonassessable, and (b) to such
counsel's knowledge, were not issued in violation of
any preemptive rights under such Corporate
Subsidiary's charter or under the laws of the
jurisdiction of its incorporation or in violation of
any similar contractual rights.
(vi) Each Limited Partnership Subsidiary
formed in Virginia or Maryland was formed, and is
validly existing and in good standing under the laws
of its jurisdiction of organization as of the
respective dates specified in such opinion letter,
and has the limited partnership power and limited
partnership authority to own, lease and operate its
properties and to conduct its business as described
in the Prospectus. Each Limited Partnership
Subsidiary is authorized to transact business as a
foreign limited partnership in each jurisdiction
identified on a Schedule to such opinion letter, as
of the respective dates of the certificates specified
therein.
(vii) Each LLC Subsidiary formed in
Maryland was formed, and is validly existing and in
good standing under the laws of its jurisdiction of
organization as of the respective dates specified in
such opinion letter, and has the limited liability
company power and limited liability company authority
to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
- 25 -
<PAGE> 26
(viii) The authorized capital stock of the
Company conforms in all material respects to the
description thereof contained in the Prospectus under
the caption "Description of Capital Stock". The form
of certificate evidencing the Firm Shares has been
duly authorized and complies with the requirements of
the Delaware General Corporation Law and the
Certificate of Incorporation and Bylaws of the
Company.
(ix) The Registration Statement has
become effective under the Act and, to such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened by the Commission.
(x) The execution, delivery and
performance as of the Closing Date by the Company of
this Agreement do not (i) violate the Certificate of
Incorporation or Bylaws of the Company, the charter,
bylaws, partnership agreements or operating
agreements of any of the Subsidiaries or the General
Corporation Law of the State of Delaware or (ii)
breach or constitute a default under any contract or
agreement listed on a Schedule to such opinion
letter. No approval or consent of any Delaware,
Virginia or Maryland governmental agency is required
to be obtained by the Company in connection with the
execution, delivery and performance as of the Closing
Date by the Company of this Agreement.
(xi) Each of the Company's owned assisted
living facilities in Maryland and Virginia currently
holds (or has pending a renewal application for) a
license authorizing such facility to furnish assisted
living services as described under the heading
"Services" on pages 30-31 of the Prospectus.
(xii) To such counsel's knowledge, except
as set forth in the Prospectus, no holders of Common
Stock or other securities of the Company have
registration rights with respect to securities of the
Company and, except as set forth in the Prospectus,
all holders of securities of the Company having
rights to registration of shares of Common Stock or
other securities because of the filing of the
Registration Statement by the Company have, solely
with respect to the offering contemplated thereby,
waived such rights.
(xiii) Neither the Company nor any of the
Subsidiaries is required to be registered as an
"investment company" under the 1940 Act.
- 26 -
<PAGE> 27
(xiv) The Registration Statement
(including any Registration Statement filed under
462(b) of the Act, if any) and the Prospectus and any
supplement or amendment thereto (except for financial
statements and supporting schedules and other
financial and statistical information and data
included therein, as to which no opinion need be
expressed) comply as to form in all material respects
with the Act.
(xv) To such counsel's knowledge, the
Company owns directly or indirectly the ownership
interests in the Subsidiaries set forth on Exhibit 21
to the Registration Statement.
In addition to the matters set forth above, such
opinion letter shall also include a statement to the effect
that no facts have come to the attention of such counsel which
cause them to believe that (i) the Registration Statement, at
the time it became effective, contained an untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the
Closing Date, contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, (ii) there are any
legal or governmental proceedings pending or threatened
against the Company that are required to be disclosed in the
Registration Statement or the Prospectus, other that those
disclosed therein, or (iii) there are any contracts or
documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described
or referred to therein or so filed; provided that in making
the foregoing statements (which shall not constitute an
opinion), such counsel need not express any views as to the
financial statements and supporting schedules and other
financial and statistical information and data included in or
omitted from the Registration Statement or the Prospectus.
In giving its opinion required by this paragraph (e)
above, such counsel may rely, (A) as to all matters of fact,
upon certificates and written statements of officers and
employees of the Company and its Subsidiaries, and (B) as to
the qualification and good standing of the Company and its
Subsidiaries to do business in any jurisdiction, upon
certificates of appropriate government officials in such
jurisdictions. Further, such counsel may state that their
opinion is based as to matters of law solely upon (i) the
federal securities laws, (ii) the General Corporation Law, as
amended, of each of the States of Delaware and Virginia, (iii)
the limited partnership acts of Virginia and Maryland, (iv)
the limited liability company act of Maryland, (v) Hospitals
and Related Institutions, Md. Health-Gen.
- 27 -
<PAGE> 28
Code Ann. Section Section 19-301 to 19-374, (vi) Domiciliary
Care Homes, Md. Regs. Code Section Section 10.07.03.01 to
10.07.03.27, (vii) Licensing of Homes for Aged, Infirm or
Disabled Adults, Va. Code Ann. Section Section 63.1-172 to
182.1, and (viii) Standards and Regulations for Licensed Adult
Care Residences, 22 Va. Admin. Code Section Section 40-70-10
to 40-745-110; and that such counsel expresses no opinion as
to any other laws, statutes, ordinances, rules or regulations.
The opinion of Hogan & Hartson L.L.P. described in
this paragraph (e) shall be rendered to you at the request of
the Company and shall so state therein.
(f) You shall have received on the Closing Date
an opinion (reasonably satisfactory to you and counsel for the
Underwriters) dated the Closing Date, of Watt, Tieder &
Hoffar, counsel for the Selling Stockholders, to the effect
that:
(i) The Selling Stockholders have full
right, power and authority to enter into and to
perform their obligations under this Agreement and to
sell, transfer, assign and deliver the Additional
Shares hereunder.
(ii) This Agreement has been duly
executed and delivered by or on behalf of the Selling
Stockholders.
(iii) The execution, delivery and
performance of this Agreement by the Selling
Stockholders, compliance by the Selling Stockholders
with all the provisions hereof and the consummation
of the transactions of the Selling Stockholders
contemplated hereby do not (a) require any consent,
approval, authorization, order or other action of any
Maryland or Virginia court, regulatory body,
administrative agency or other governmental agency or
body (except as may be required under the securities
or Blue Sky laws of such states, as to which such
counsel need express no opinion), (b) constitute a
breach of, or a default under, any agreement,
promissory note, mortgage or other instrument to
which any Selling Stockholder is a party or by which
any Selling Stockholder is bound and of which such
counsel has knowledge, or (c) violate or conflict
with any applicable Maryland or Virginia law, rule or
regulation (except the securities or Blue Sky laws of
such states, as to which such counsel need express no
opinion) or any order, writ or decree of any Maryland
or Virginia court or governmental agency or body
having jurisdiction over any Selling Stockholder.
(iv) The Selling Stockholders have full
right, power and authority to enter into and perform
their obligations under the
- 28 -
<PAGE> 29
Custody Agreement to be executed and delivered by the
Selling Stockholders in connection with the
transactions contemplated by this Agreement; the
Custody Agreement has been duly executed and
delivered by the Selling Stockholders; and the
Custody Agreement constitutes a valid and binding
agreement of the Selling Stockholders, enforceable in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of
creditors' rights generally or by general equitable
principles.
The opinion of Watt, Tieder & Hoffar described in
this paragraph (f) shall be rendered to you at the request of
the Selling Stockholders (and shall so state therein) and
shall be limited to matters of Virginia law and Maryland law
(other than the securities or Blue Sky laws of such states, as
to which such counsel need express no opinion).
(g) You shall have received on the Closing Date
an opinion, dated the Closing Date, of Alston & Bird, counsel
for the Underwriters, in form and substance reasonably
satisfactory to you, with respect to the sufficiency of all
such corporate proceedings and other legal matters relating to
this Agreement and the transactions contemplated hereby as you
may reasonably require, and the Company shall have furnished
to such counsel such documents as they may have requested for
the purpose of enabling them to pass upon such matters.
(h) You shall have received a letter on and as of
the Closing Date, in form and substance satisfactory to you,
from Ernst & Young LLP, independent public accountants, with
respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus and substantially in the form and substance of the
letter delivered to you by Ernst & Young LLP on the date of
this Agreement.
(i) The Company and the Selling Stockholders
shall not have failed at or prior to the Closing Date to
perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company
or the Selling Stockholders at or prior to the Closing Date.
(j) The Company and the Selling Stockholders
shall have furnished to you such further certificates and
documents as you or your counsel shall reasonably request,
including, without limitation, certificates of officers of the
Company and certificates of the Selling Stockholders as to the
accuracy of the representations and warranties of the Company
and
- 29 -
<PAGE> 30
the Selling Stockholders herein, as to the performance by the
Company and the Selling Stockholders of their respective
obligations hereunder and as to the other conditions
concurrent and precedent to the obligations of the
Underwriters hereunder.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to counsel to the Underwriters. The Company and the Selling Stockholders will
furnish you with such number of conformed copies of such opinions,
certificates, letters and documents as you shall reasonably request.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to
the good standing of the Company, title to the Additional Shares, the
Registration Statement and Prospectus and other matters related to the Company
or the purchase of such Additional Shares, including, without limitation, (i)
an opinion dated the Option Closing Date of Watt, Tieder & Hoffar, counsel for
the Selling Stockholders, with respect to the matters set forth in paragraph
9(f) above and to the effect that, upon the delivery of and payment for the
Additional Shares as contemplated in this Agreement, each of the Underwriters
(assuming they are bona fide purchasers within the meaning of the Uniform
Commercial Code) will have acquired title to the Additional Shares purchased by
it, free and clear of any adverse claims, (ii) an opinion dated the Option
Closing Date of Hogan & Hartson L.L.P., counsel for the Company, with respect
to the matters set forth in paragraph 9(e) above (other than opinions relating
solely to the Firm Shares), (iii) an opinion dated the Option Closing Date of
Alston & Bird, counsel for the Underwriters, with respect to the sufficiency of
all such corporate proceedings and other legal matters relating to this
Agreement and the transactions contemplated hereby as you may reasonably
require, (iv) a letter dated the Option Closing Date from Ernst & Young LLP
with respect to the matters set forth in paragraph 9(h) above, and (v)
certificates dated the Option Closing Date as to the matters referred to in
paragraph 9(j) above.
10. Effective Date of Agreement and Termination. This Agreement
shall become effective upon the later of (i) execution of this Agreement and
(ii) the effectiveness of the Registration Statement.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Sellers if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any material adverse change
or development involving a prospective material adverse change in the condition
(financial or other) of the Company and the Subsidiaries, taken as a whole, or
the business, prospects, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, which would, in your judgment, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or
- 30 -
<PAGE> 31
change in economic conditions or in the financial markets of the United States
or elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market or limitation on prices
for securities on any such exchange or Nasdaq National Market, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company and the
Subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it or
they have agreed to purchase hereunder on such date and the aggregate number of
Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date or on an Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares, or Additional Shares, as the case may be, and the aggregate number of
Firm Shares or Additional Shares, as the case may be, with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date by all Underwriters and arrangements satisfactory to
you and the applicable Sellers for purchase of such Shares are not made within
48 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter and the applicable Sellers. In any
such case which does not result in termination of this Agreement, either you or
the Sellers shall have the right to postpone the Closing Date or the applicable
Option Closing Date, as the case may be, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting
- 31 -
<PAGE> 32
Underwriter from liability in respect of any default of any such Underwriter
under this Agreement.
11. Agreements of the Selling Stockholders. The Selling
Stockholders jointly and severally agree with you and the Company:
(a) To pay or to cause to be paid all transfer
taxes with respect to the Additional Shares; and
(b) To take all reasonable actions in cooperation
with the Company and the Underwriters to cause the
Registration Statement to become effective at the earliest
possible time, to do and perform all things to be done and
performed by the Selling Stockholders under this Agreement
prior to the Closing Date or the Option Closing Date, as the
case may be, and to satisfy all conditions precedent to the
delivery by the Selling Stockholders of the Additional Shares
pursuant to this Agreement.
12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to Paul
J. Klaassen, Chief Executive Officer, Sunrise Assisted Living, Inc., 9401 Lee
Highway, Suite 300, Fairfax, Virginia 22031, (b) if to the Selling
Stockholders, to Paul J. and Teresa M. Klaassen c/o Sunrise Assisted Living,
Inc., 9401 Lee Highway, Suite 300, Fairfax, Virginia 22031 and (c) if to any
Underwriter or to you, to you c/o Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Selling Stockholders,
the Company, its officers and directors and of the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Sellers, the
officers or directors of the Company or any controlling person of the Sellers,
(ii) acceptance of the Shares and payment for them hereunder and (iii)
termination of this Agreement.
If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company or the Selling
Stockholders to comply with the terms or to fulfill any of the conditions of
this Agreement, the Company or the Selling Stockholders, as the case may be,
agree to reimburse the several Underwriters for all out-of-pocket expenses
(including the reasonable fees and disbursements of counsel) reasonably
incurred by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Sellers, the
Underwriters, any controlling
- 32 -
<PAGE> 33
persons referred to herein and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors
and assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
- 33 -
<PAGE> 34
Please confirm that the foregoing correctly sets forth the
agreement by and among the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours,
SUNRISE ASSISTED LIVING, INC.
By: /s/ David W. Faeder
--------------------------------
David W. Faeder
Executive Vice President
THE SELLING STOCKHOLDERS
NAMED IN SCHEDULE II HERETO
/s/ Paul J. Klaassen
--------------------------------
Paul J. Klaassen
/s/ Teresa M. Klaassen
--------------------------------
Teresa M. Klaassen
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ALEX. BROWN & SONS INCORPORATED
NATWEST SECURITIES LIMITED
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ John W. Patterson
----------------------------
John W. Patterson
Senior Vice President
- 34 -
<PAGE> 35
SCHEDULE I
<TABLE>
<CAPTION>
Number of Firm Shares
Underwriters to be Purchased
------------ -------------------------
<S> <C>
Donaldson, Lufkin & Jenrette 1,332,668
Securities Corporation 1,332,666
Alex. Brown & Sons Incorporated 1,332,666
NatWest Securities Limited 74,000
Bear, Stearns & Co., Inc. 74,000
CS First Boston Corporation 74,000
Cowen & Company 74,000
Dean Witter Reynolds Inc. 74,000
Deutsche Morgan Grenfell/C.J. Lawrence Inc. 74,000
A.G. Edwards & Sones, Inc 74,000
Hambrecht & Quist LLC 74,000
Montgomery Securities 74,000
Morgan Stanley & Co. Incorporated 74,000
PaineWebber Incorporated 74,000
Prudential Securities Incorporated 74,000
Salomon Brothers Inc. 74,000
Smith Barney Inc. 74,000
Advest, Inc. 37,000
Robert W. Baird & Co. Incorporated 37,000
J.C. Bradford & Co. 37,000
Crowell, Weedon & Co. 37,000
Equitable Securities Corporation 37,000
First of Michigan Corporation 37,000
First Albany Corporation 37,000
Interstate/Johnson Lane Corporation 37,000
Johnston, Lemon & Co. Incorporated 37,000
Legg Mason Wood Walker Incorporated 37,000
McDonald & Company Securities, Inc. 37,000
Needham & Company, Inc. 37,000
Ragen MacKenzie Incorporated 37,000
Raymond James & Associates, Inc. 37,000
Scott & Stringfellow inc. 37,000
Sutro & Co. Incorporated 37,000
Tucker Anthony Incorporated 37,000
Wessels, Arnold & Henderson 37,000
Wheat, First Securities, Inc. 37,000
Van Kasper & Company 37,000
------
Total 5,700,000
</TABLE>
- 35 -
<PAGE> 36
SCHEDULE II
Selling Stockholders
<TABLE>
<CAPTION>
Number of Additional
Name Shares Being Sold
---- --------------------
<S> <C> <C>
Paul J. and Teresa M. Klaassen,
as tenants by the entireties 855,000
-------------------
Total 855,000
</TABLE>
- 36 -
<PAGE> 37
ANNEX I
Required Stockholder Lock-Ups
Allstate Insurance Company
Allstate Life Insurance Company
Continental Trust Company as Trustee for the Allstate Retirement Plan
Continental Trust Company as Trustee for the Agents Pension Plan
Sprout Growth II, L.P.
DLJ Capital Corporation
Frontenac VI Limited Partnership
- 37 -
<PAGE> 1
Exhibit 3
May 3, 1996
Donaldson, Lufkin & Jenrette Securities Corporation
Alex. Brown & Sons Incorporated
Natwest Securities Limited
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
RE: SUNRISE ASSISTED LIVING, INC.
PROPOSED INITIAL PUBLIC OFFERING OF COMMON STOCK
Dear Sirs:
The undersigned understands that Donaldson, Lufkin & Jenrette
Securities Corporation, Alex. Brown & Sons Incorporated and Natwest Securities
Limited, as Representatives (the "Representatives") of the several underwriters
(the "Underwriters"), propose to enter into an Underwriting Agreement with
Sunrise Assisted Living, Inc. (the "Company"), providing for the initial public
offering by the Underwriters, including the Representatives, of common stock,
par value $0.01 per share ("the Common Stock") of the Company (the "Initial
Public Offering").
In consideration of the Underwriters' agreement to purchase,
and undertake the Initial Public Offering of, the Company's Common Stock and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees not to, directly or indirectly,
offer, sell, contract to sell, grant any option to purchase or otherwise
dispose of any Common Stock (including, without limitation, shares of Common
Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission and shares of Common Stock which may be issued upon exercise of a
stock option or warrant) or any securities convertible into or exercisable or
exchangeable for such Common Stock or, in any manner, transfer all or a portion
of the economic consequences associated with the ownership of the Common Stock,
for a period of 180 days after the effective date of the Company's Registration
Statement on Form S-1 relating to the Initial Public Offering (the
"Registration Statement"), other than (i) as a gift or gifts, provided the donee
or donees thereof agree in writing to be bound by this letter agreement, (ii)
transfers to a transferor's affiliates, as such term is defined in Rule 405
promulgated under the Securities Act of 1933, provided the transferee agrees in
writing to be bound by this letter agreement, or (iii) with the prior written
consent of Alex. Brown & Sons Incorporated and Natwest Securities Limited.
The undersigned further agrees that for a period of 180 days after the
effective date of the Registration Statement, the undersigned will not exercise
any rights that the undersigned may have to cause the Company to register
(under the Securities Act of 1933 or otherwise) any shares of Common Stock or
any securities convertible into or exercisable
<PAGE> 2
or exchangeable for shares of Common Stock, without the prior written consent
of Alex. Brown & Sons Incorporated and Natwest Securities Limited.
In addition, the undersigned agrees that the Company may, with
respect to any shares of Common Stock for which the undersigned is the record
holder, cause the transfer agent for the Company to note stop transfer
instructions with respect to such shares of Common Stock on the transfer books
and records of the Company. The undersigned agrees that the undersigned will,
if requested by the Company, with respect to any shares of Common Stock for
which the undersigned is the beneficial holder but not the record holder, cause
the record holder of such shares of Common Stock to cause the transfer agent
for the Company to note stop transfer instructions with respect to such shares
of Common Stock on the transfer books and records of the Company.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this letter agreement.
All authority herein conferred or agreed to be conferred shall survive the death
or incapacity of the undersigned and any obligations of the undersigned shall be
binding upon the heirs, personal representatives, successors, and assigns of the
undersigned.
Very truly yours,
SPROUT GROWTH II, LP
By: DLJ Capital Corporation,
its managing general partner
/s/ SCOTT F. MEADOW
--------------------------
By: Scott F. Meadow
Title: Attorney-In-Fact
277 Park Avenue
New York, NY 10172
- -----------------------------------------------
(Address)
13-3696025
- -----------------------------------------------
(Social Security or Taxpayer Identification No.)
- 2 -
<PAGE> 1
Exhibit 4
May 3, 1996
Donaldson, Lufkin & Jenrette Securities Corporation
Alex. Brown & Sons Incorporated
Natwest Securities Limited
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
RE: SUNRISE ASSISTED LIVING, INC.
PROPOSED INITIAL PUBLIC OFFERING OF COMMON STOCK
Dear Sirs:
The undersigned understands that Donaldson, Lufkin & Jenrette
Securities Corporation, Alex. Brown & Sons Incorporated and Natwest Securities
Limited, as Representatives (the "Representatives") of the several underwriters
(the "Underwriters"), propose to enter into an Underwriting Agreement with
Sunrise Assisted Living, Inc. (the "Company"), providing for the initial public
offering by the Underwriters, including the Representatives, of common stock,
par value $0.01 per share ("the Common Stock") of the Company (the "Initial
Public Offering").
In consideration of the Underwriters' agreement to purchase,
and undertake the Initial Public Offering of, the Company's Common Stock and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees not to, directly or indirectly,
offer, sell, contract to sell, grant any option to purchase or otherwise
dispose of any Common Stock (including, without limitation, shares of Common
Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission and shares of Common Stock which may be issued upon exercise of a
stock option or warrant) or any securities convertible into or exercisable or
exchangeable for such Common Stock or, in any manner, transfer all or a portion
of the economic consequences associated with the ownership of the Common Stock,
for a period of 180 days after the effective date of the Company's Registration
Statement on Form S-1 relating to the Initial Public Offering (the
"Registration Statement"), other than (i) as a gift or gifts, provided the donee
or donees thereof agree in writing to be bound by this letter agreement, (ii)
transfers to a transferor's affiliates, as such term is defined in Rule 405
promulgated under the Securities Act of 1933, provided the transferee agrees in
writing to be bound by this letter agreement, or (iii) with the prior written
consent of Alex. Brown & Sons Incorporated and Natwest Securities Limited.
The undersigned further agrees that for a period of 180 days after the
effective date of the Registration Statement, the undersigned will not exercise
any rights that the undersigned may have to cause the Company to register
(under the Securities Act of 1933 or otherwise) any shares of Common Stock or
any securities convertible into or exercisable
<PAGE> 2
or exchangeable for shares of Common Stock, without the prior written consent
of Alex. Brown & Sons Incorporated and Natwest Securities Limited.
In addition, the undersigned agrees that the Company may, with
respect to any shares of Common Stock for which the undersigned is the record
holder, cause the transfer agent for the Company to note stop transfer
instructions with respect to such shares of Common Stock on the transfer books
and records of the Company. The undersigned agrees that the undersigned will,
if requested by the Company, with respect to any shares of Common Stock for
which the undersigned is the beneficial holder but not the record holder, cause
the record holder of such shares of Common Stock to cause the transfer agent
for the Company to note stop transfer instructions with respect to such shares
of Common Stock on the transfer books and records of the Company.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this letter agreement.
All authority herein conferred or agreed to be conferred shall survive the death
or incapacity of the undersigned and any obligations of the undersigned shall be
binding upon the heirs, personal representatives, successors, and assigns of the
undersigned.
Very truly yours,
DLJ CAPITAL CORPORATION
/s/ SCOTT F. MEADOW
--------------------------
By: Scott F. Meadow
Title: Attorney-In-Fact
277 Park Avenue
New York, NY 10172
- -----------------------------------------------
(Address)
13-2656882
- -----------------------------------------------
(Social Security or Taxpayer Identification No.)
- 2 -
<PAGE> 1
Exhibit 5
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement"), dated January
4, 1995, is by and among SUNRISE ASSISTED LIVING, INC., a Delaware corporation
(the "Corporation"), the persons and entities identified on Schedule 1 (the
"Investors"), PAUL J. KLAASSEN, TERESA M. KLAASSEN (collectively, the
"Founders") and any person that becomes a party hereto pursuant to Section 21
hereof (collectively with the Founders, the "Management Stockholders").
RECITALS
A. The Investors have agreed to purchase and the
Corporation has agreed to sell shares of Series A Preferred Stock ("Series A
Preferred Shares") and Series B Preferred Stock pursuant to that certain Series
A and B Preferred Stock Purchase Agreement, dated as of December 19, 1994 (as
amended, modified, supplemented or restated from time to time, the "Purchase
Agreement"), provided that the parties enter into a Registration Agreement.
B. The Corporation, the Investors and the Management
Stockholders deem it desirable to enter into this Agreement in connection with
the purchase and sale of such securities.
AGREEMENTS
In consideration of the recitals and the mutual promises and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. As used in this Agreement:
"Commission" means the Securities and Exchange
Commission.
"Common Stock" means the Common Stock, par value $.01
per share, of the Corporation.
"Founders' Shares" means at any time Management
Stockholders' Shares held of record by the Founders.
"Management Stockholders' Shares" means at any time
the following shares held by any of the Management Stockholders (other than
Investors' Shares): (i) any shares of Common Stock then outstanding; (ii) any
shares of Common Stock then outstanding that were issued upon exercise of the
Options; (iii) any shares of Common Stock then issuable upon exercise of the
Options; (iv) any shares of Common Stock then outstanding which were issued
<PAGE> 2
as, or were issued directly or indirectly upon the conversion or exercise of
other securities issued as, a dividend or other distribution with respect to or
in replacement of other Management Stockholders' Shares; and (v) any shares of
Common Stock then issuable directly or indirectly upon the conversion or
exercise of other securities which were issued as a dividend or other
distribution with respect to or in replacement of other Management
Stockholders' Shares; provided, however that Management Stockholders' Shares
shall not include any shares of Common Stock the sale of which has been
registered pursuant to the Securities Act or sold to the public pursuant to
Rule 144 promulgated by the Commission under the Securities Act. For purposes
of this Agreement, a Person will be deemed to be a Holder of Management
Stockholders' Shares whenever such Person holds a security exercisable for or
convertible into such Management Stockholders' Shares, whether or not such
exercise or conversion has actually been effected.
"Holder" means any holder of Registrable Shares who is a party
to this Agreement (or becomes a party hereto pursuant to Section 21 hereof) or
is a successor or assign or subsequent holder contemplated by Section 14
hereof.
"Investors' Shares" means at any time the following shares
held by any Investors: (i) any shares of Common Stock then outstanding that
were issued upon conversion of the Series A Preferred Shares; (ii) any shares
of Common Stock then issuable upon conversion of the Series A Preferred Shares;
(iii) any shares of Common Stock then outstanding which were issued as, or were
issued directly or indirectly upon the conversion or exercise of other
securities issued as, a dividend or other distribution with respect to or in
replacement of other Investors' Shares; and (iv) any shares of Common Stock
then issuable directly or indirectly upon the conversion or exercise of other
securities which were issued as a dividend or other distribution with respect
to or in replacement of other Investors' Shares; provided, however, that
Investors' Shares shall not include any shares of Common Stock the sale of
which has been registered pursuant to the Securities Act or sold to the public
pursuant to Rule 144 promulgated by the Commission under the Securities Act.
For purposes of this Agreement, a Person will be deemed to be a Holder of
Investors' Shares whenever such Person holds a security exercisable for or
convertible into such Investors' Shares, whether or not such exercise or
conversion has actually been effected.
"IPO" means the Corporation's first underwritten public
offering of shares of Common Stock consummated pursuant to a registration
statement declared effective under the Securities Act, other than an offering
made in connection with a business acquisition or combination or employee
benefit plan.
"Options" means options for the purchase of shares of Common
Stock issued by the Corporation to any Management Stockholder pursuant to the
Option Plans (as defined in the Purchase Agreement).
2
<PAGE> 3
"Person" means a natural person, a partnership, a corporation,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.
"Registrable Shares" means the Investors' Shares and the
Management Stockholders' Shares.
"Registration Expenses" has the meaning ascribed to it in
Section 6 of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended.
2. Demand Registrations.
(a) Requests for Registration. (i) Subject to the terms and
conditions of this Agreement, the Holders of a majority of the then outstanding
Investors' Shares or either of the Founders at any time may request
registration under the Securities Act of all or part of their Registrable
Shares on Form S-1 or any similar long-form registration statement ("Long-Form
Registration") by delivering a written request to the Corporation to that
effect; provided, however, that, in the case of any such Long-Form
Registration, the Holders requesting the Long Form Registration must be
requesting registration of not less than 25% of the Registrable Shares held by
such Holders.
(ii) Subject to the terms and conditions of this
Agreement, the Holders of 25% of the then outstanding Investors' Shares or
either of the Founders holding 25% of the then outstanding Founders' Shares, at
any time may request registration under the Securities Act of all or part of
their Registrable Shares on Form S-2 or S-3 or any similar short-form
registration statement ("Short-Form Registration"), if available, by delivering
a written request to the Corporation to that effect; provided, however, that,
in the case of any such Short-Form Registration, the aggregate offering value
of the Registrable Shares requested to be included in such registration
pursuant to Section 2(a), including, without limitation, Section 2(a)(iii),
must be reasonably expected to equal at least $1,000,000.
(iii) If the Holders initiating a registration
pursuant to Section 2(a) intend to distribute the Registrable Shares by means
of an underwriting, they shall so advise the Corporation in their written
notice. Within ten (10) days after receipt of any such written request, the
Corporation will give written notice of such request to all holders of all
registrable securities of the Corporation (including all other Holders of
Registrable Shares) and will include, subject to the terms of Section 2(d), in
any such registration that constitutes a Demand Registration (as hereinafter
defined) all registrable securities with respect to which the
3
<PAGE> 4
Corporation has received written requests for inclusion therein within fifteen
(15) days after the Corporation's notice has been given. Any Long-Form
Registration and Short-Form Registration requested pursuant to this Section
2(a), other than a registration in which the Corporation sells any of its
securities in a primary offering, are referred to herein, respectively, as a
"Long-Form Demand Registration" and a "Short-Form Demand Registration". All
Long-Form Demand Registrations and Short-Form Demand Registrations shall
collectively be referred to herein as "Demand Registrations". The Corporation
may elect to include its securities in a primary offering in any registration
requested pursuant to this Section 2(a), and such registrations requested
pursuant to this Section 2(a) in which the Corporation sells any of its
securities in a primary offering shall not be deemed to be Demand Registrations
and shall be considered Piggyback Registrations and will be governed by Section
3.
(b) Long-Form Demand Registrations. The Holders of
Investors' Shares may request two Long-Form Demand Registrations pursuant to
Section 2(a)(i), and the Corporation will pay the Registration Expenses
therefor of the Corporation and the Holders of Registrable Shares. Either of
the Founders holding Founders' Shares may request one Long-Form Demand
Registration pursuant to Section 2(a)(i), and the Corporation will pay the
Registration Expenses therefor of the Corporation and the Holders of
Registrable Shares. A registration will not count as a Long-Form Demand
Registration under this Section 2(b) until it has become effective; provided
that in any event the Corporation will pay the Registration Expenses in
connection with any such registration initiated as a Long-Form Demand
Registration of the Corporation and the Holders of Registrable Shares.
Notwithstanding the terms of the preceding sentence, a registration which does
not become effective after the Corporation has filed a registration statement
with respect thereto solely by reason of the refusal to proceed of the Holders
of Registrable Shares shall be deemed to have been effected by such Holders and
count as a Long-Form Demand Registration under this Section 2(b), unless the
Holders of Registrable Shares making such demand shall have elected to pay the
Registration Expenses of the Corporation and of the Holders of Registrable
Shares incurred in connection therewith.
(c) Short-Form Demand Registrations. In addition to the
Long-Form Demand Registrations that may be requested pursuant to this Section
2, the Holders of Investors' Shares and either of the Founders holding
Founders' Shares will be entitled to request pursuant to Section 2(a)(ii) an
unlimited number of Short-Form Demand Registrations. The Corporation will pay
all Registration Expenses of the Corporation and the Holders of Registrable
Shares incurred in connection with the first two such registrations.
Notwithstanding the terms of the preceding sentence, a registration which does
not become effective after the Corporation has filed a registration statement
with respect thereto solely by reason of the refusal to proceed of the Holders
of Registrable Shares shall be deemed to have been effected by such Holders and
count as a Short-Form Demand Registration for which the Corporation paid
Registration Expenses under this Section 2(c), unless the Holders of the
Registrable Shares making such demand shall have elected to pay the
Registration Expenses of the Corporation and of the Holders of Registrable
Shares incurred in connection therewith.
4
<PAGE> 5
(d) Priority on Demand Registrations. If a Demand
Registration is an underwritten public offering and the managing underwriter(s)
advise the Corporation that in their opinion the number of Registrable Shares
and other securities requested to be included exceeds the number of Registrable
Shares and other securities which can be sold in such offering without having a
material adverse effect on the offering, the Corporation will include in such
registration, (A) first, the number of Investors' Shares and Founders' Shares
requested to be included therein, which in the opinion of such underwriters can
be sold without having a material adverse effect on the offering, allocated pro
rata among the Holders of such Investors' Shares and Founders' Shares on the
basis of the number of Investors' Shares and Founders' Shares owned by such
Holders, with further successive pro rata allocations among the Holders of
Investors' Shares and Founders' Shares if any such Holder of Investors' Shares
or Founders' Shares has requested the registration of fewer than all such
Investors' Shares or Founders' Shares such Holder is entitled to register, (B)
second, the number of other Management Stockholders' Shares requested to be
included therein, which in the opinion of such underwriters (after taking into
account the number of Investors' Shares and Founders' Shares to be sold
pursuant to clause (A)) can be sold without having a material adverse effect on
the offering, allocated pro rata among the Holders of such Management
Stockholders' Shares on the basis of the number of Management Stockholders'
Shares owned by such Holders, with further successive pro rata allocations
among the Holders of Management Stockholders' Shares if any such Holder of
Management Stockholders' Shares has requested the registration of fewer than
all such Management Stockholders' Shares he or she is entitled to register, and
(C) third, other securities requested to be included in such registration which
in the opinion of such underwriter(s) can be sold (after taking into account
the Registrable Shares to be sold pursuant to clauses (A) and (B)) without
having a material adverse effect on the offering. Notwithstanding the
foregoing, (A) a Demand Registration by the Founders which includes Investors'
Shares shall be a Demand Registration by the Holders of such Investors' Shares
for the purpose of priority but shall not constitute a Demand Registration by
such Holders of Investors' Shares for the purpose of Section 2(b) or 2(c)
above, and (B) a Demand Registration by the Holders of Investors' Shares which
includes Founders' Shares shall be a Demand Registration by the Founders
holding such Founders' Shares for the purpose of priority but shall not
constitute a Demand Registration by such Founders for the purpose of Section
2(b) or (c) above.
(e) Restrictions on Registrations. (i) The Corporation may
postpone for a reasonable period, not to exceed one hundred twenty (120) days,
the filing or the effectiveness of a registration statement for a Demand
Registration, if the Corporation has been advised by legal counsel that such
filing would require disclosure of a material fact that the Corporation
determines reasonably and in good faith would have a material adverse effect on
any proposal or plan by the Corporation or any of its Subsidiaries (as defined
in the Purchase Agreement) to engage in any significant transaction. In
addition, the Corporation shall not be required to effect any registration in
accordance with the terms of this Agreement (other than on Form S-3 or any
successor form relating to secondary offerings) within one hundred and eighty
(180) days after the effective date of any registration statement of the
Corporation for the IPO or a primary
5
<PAGE> 6
offering (or combined primary and secondary offering) of its securities (other
than a registration statement on Form S-8, or any successor forms).
(ii) No Holder of Registrable Shares may make a
request for a Demand Registration until the earlier to occur of (A) an IPO, and
(B) the fourth anniversary of the Closing, as such term is defined in the
Purchase Agreement.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever (i) the Corporation
intends to sell its securities in a primary offering pursuant to a registration
statement filed with the Commission or whenever the securities of the
Corporation then issued and outstanding are to be registered under the
Securities Act and, in either case, other than pursuant to a registration
statement on Form S-8 or Form S-4, or their successors) and (ii) the
registration form to be used may be used for the registration of Investors'
Shares or Management Stockholders' Shares (a "Piggyback Registration"), the
Corporation will give prompt written notice (in any event within ten (10)
business days after its receipt of notice of any exercise of demand
registration rights by holders of the Corporation's securities other than the
Registrable Shares) to all holders of registrable securities (including all
Holders of Registrable Shares) of its intention to effect such a registration
and will include in such registration, subject to the terms of paragraphs (b)
and (c) of this Section 3, all registrable securities with respect to which the
Corporation has received written requests for inclusion therein within thirty
(30) days after the Corporation's notice has been given. The Corporation shall
have the right to postpone or withdraw any Piggyback Registration without
obligation or liability to any holder of registrable securities (including any
Holder of Registrable Shares).
(b) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Corporation, and the managing underwriter(s) advise the Corporation that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
having a material adverse effect on the offering, the Corporation will include
in such registration (A) first, the securities the Corporation proposes to
sell, (B) second, the Investors' Shares and Founders' Shares requested to be
included therein which in the opinion of such underwriter(s) (after taking into
account the securities to be sold pursuant to clause (A)) can be sold without
having a material adverse effect on the offering, allocated pro rata among the
Holders of such Investors' Shares and Founders' Shares on the basis of the
number of Investors' Shares and Founders' Shares owned by such Holders, with
further successive pro rata allocations among the Holders of Investors' Shares
and Founders' Shares if any such Holder has requested the registration of fewer
than all such Investors' Shares or Founders' Shares it is entitled to register,
(C) third, the number of Management Stockholders' Shares requested to be
included therein, which in the opinion of such underwriter(s) (after taking
into account the securities to be sold pursuant to clauses (A) and (B) can be
sold without having a material adverse effect on the offering, allocated pro
rata among the Holders of such Management Stockholders' Shares on the basis of
6
<PAGE> 7
the number of Management Stockholders' Shares owned by such Holders, with
further successive pro rata allocations among the Holders of Management
Stockholders' Shares if any such Holder of Management Stockholders' Shares has
requested the registration of fewer than all such Management Stockholders'
Shares he or she is entitled to register and (D) fourth, other securities
requested to be included in such registration which in the opinion of such
underwriter(s) can be sold (after taking into account the securities to be sold
pursuant to clauses (A), (B) and (C)) without having a material adverse effect
on the offering. Notwithstanding the foregoing, in the first Piggyback
Registration, Holders of Investors' Shares and Founders holding Founder's
Shares requesting Piggyback Registration shall have the right to have twenty
percent (20%) of the total offering with respect to such Piggyback Registration
allocated to them pro rata, unless the managing underwriter(s) advise the
Corporation that in their opinion such percentage exceeds the number of shares
that can be sold without having a material adverse effect on such offering, in
which event such percentage shall be reduced accordingly.
(c) Priority on Secondary Registrations. (i) If a Piggyback
Registration is not an underwritten primary registration on behalf of the
Corporation and is an underwritten secondary registration on behalf of holders
of the Corporation's securities and the managing underwriter(s) advise the
Corporation that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering without having a material adverse effect on the offering, the
Corporation will include in such registration (A) first, the securities
requested to be included therein by the holders requesting such registration
which in the opinion of such underwriter(s) can be sold without having a
material adverse effect on the offering, (B) second, the Investors' Shares and
Founders' Shares requested to be included therein which in the opinion of such
underwriter(s) can be sold (after taking into account the securities to be sold
pursuant to clause (A)) without having a material adverse effect on the
offering, allocated pro rata among the Holders of such Investors' Shares and
Founders' Shares on the basis of the number of Investors' Shares and Founders'
Shares owned by such Holders, with further successive pro rata allocations
among the Holders of Investors' Shares if any such Holder has requested the
registration of fewer than all such Investors' Shares or Founders' Shares it is
entitled to register, (C) third, the number of other Management Stockholders'
Shares requested to be included therein which in the opinion of such
underwriter(s) (after taking into account the securities to be sold pursuant to
clauses (A) and (B)) can be, sold without having a material adverse effect on
the offering, allocated pro rata among the Holders of such Management
Stockholders' Shares on the basis of the number of Management Stockholders'
Shares owned by such Holders, with further successive pro rata allocations
among the Holders of Management Stockholders' Shares if any such Holder has
requested the registration of fewer than all such Management Stockholders'
Shares he or she is entitled to register and (D) fourth, other securities
requested to be included in such registration which in the opinion of such
underwriter(s) can be sold (after taking into account the securities to be sold
pursuant to clauses (A), (B) and (C)) without having a material adverse effect
on the offering.
(d) Other Registrations. If the Corporation has previously
filed a registration statement with respect to an underwritten registration of
Registrable Shares pursuant to Section
7
<PAGE> 8
2 or a registration statement which is not an underwritten primary registration
on behalf of the Corporation and which is an underwritten secondary
registration on behalf of holders of the Corporation's securities pursuant to
this Section 3, and if such previous registration has not been withdrawn or
abandoned, the Corporation will not be required to file or cause to be effected
any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8, or any successor forms), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of one hundred eighty (180) days has elapsed from the effective date
of such previous registration, unless the underwriter(s) managing the
registered public offering otherwise agree.
4. Holdback Agreements.
(a) Each of the Holders of Registrable Shares agrees not to
effect any public sale or distribution of equity securities of the Corporation,
including any public sale pursuant to Rule 144 under the Securities Act, or any
securities convertible into or exchangeable or exercisable for such securities,
during the Period (i) commencing seven (7) days prior to and ending one hundred
eighty (180) days after the effective date of the IPO (except as part of such
underwritten registration), unless the underwriter(s) managing the registered
public offering otherwise agree or (ii) commencing seven (7) days prior to and
ending one hundred eighty (180) days after the effective date of any
underwritten Demand Registration or underwritten Piggyback Registration in
which such Holder sells Registrable Shares (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Corporation agrees (i) not to effect any public sale
or distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the period commencing
seven days (7) prior to and ending one hundred eighty (180) days after the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or
pursuant to registrations on Form S-8 or Form S-4 or any successor form),
unless the underwriter(s) managing such offering otherwise agree, and (ii) to
use its best efforts to cause each holder of at least 1% (on a fully diluted
basis) of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, purchased from the Corporation
at any time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution of any such
securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
offering otherwise agree.
5. Registration Procedures. Whenever the Holders of Registrable
Shares have requested that any Registrable Shares be registered pursuant to the
terms of this Agreement, the Corporation will use its best efforts to effect
the registration of such Registrable Shares under the Securities Act in
accordance with the intended method of disposition thereof and pursuant thereto
the Corporation will as expeditiously as possible:
8
<PAGE> 9
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Shares and use its best efforts to
cause such registration statement to become and remain effective for such
period as may be reasonably necessary to effect the sale of such securities,
not to exceed nine (9) months;
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for such period as may be reasonably necessary to effect the sale of
such securities, not to exceed nine (9) months, and otherwise as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of such Registrable Shares and
the underwriters of the securities being registered such number of copies of
such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller or underwriters may
reasonably request in order to facilitate the disposition of the Registrable
Shares owned by such seller or the sale of such securities by such
underwriters;
(d) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable Shares
owned by such seller (provided that the Corporation will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) use its best efforts to cause all such Registrable
Shares to be listed on each securities exchange on which similar securities
issued by the Corporation are then listed;
(f) provide a transfer agent and registrar for all such
Registrable Shares not later than the closing date of the sale of such shares;
(g) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other reasonable
and customary actions as the Holders of at least a majority of the Registrable
Shares being sold or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Shares (including
effecting a stock split or a combination of shares);
9
<PAGE> 10
(h) make available for reasonable inspection during
business hours by the seller of such Registrable Shares, any managing
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter, to the extent permitted by law, all financial and other
records, pertinent corporate documents and properties of the Corporation, and
cause the Corporation's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(i) notify each seller of such Registrable Shares, promptly
after it shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(j) notify each seller of such Registrable Shares of any
request by the Cfor the amending or supplementing of such registration
statement or prospectus or for additional information;
(k) prepare and file with the Commission, promptly upon the
request of any seller of such Registrable Shares, any amendments or supplements
to such registration statement or prospectus which is required under the
Securities Act or the rules and regulations thereunder in connection with the
distribution of Registrable Shares by such seller;
(l) prepare and promptly file with the Commission and
promptly notify each seller of such Registrable Shares of the filing of such
amendment or supplement to such registration statement or prospectus as may be
necessary to correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be delivered under the
Securities Act, any event shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading;
(m) advise each seller of such Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use all reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be issued;
(n) at least forty-eight hours prior to the filing of any
registration statement or prospectus or any amendment or supplement to such
registration statement or prospectus, furnish a copy thereof to each seller of
such Registrable Shares and refrain from filing any such registration
statement, prospectus, amendment or supplement to which counsel selected by the
Holders of at least a majority of the Registrable Shares being registered shall
have reasonably objected on the grounds that such amendment or supplement does
not comply in all material
10
<PAGE> 11
respects with the requirements of the Securities Act or the rules and
regulations thereunder, unless, in the case of an amendment or supplement, in
the opinion of counsel for the Corporation the filing of such amendment or
supplement is reasonably necessary to protect the Corporation from any
liabilities under any applicable federal or state law and such filing will not
violate applicable laws; and
(o) at the request of any seller of such Registrable Shares
in connection with an underwritten offering, furnish on the date or dates
provided for in the underwriting agreement, a signed counterpart, addressed to
such seller, of; (i) an opinion of counsel, and (ii) a letter or letters from
the independent certified public accountants of the Corporation, in each case
covering such matters as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in underwritten
public offerings.
6. Registration Expenses.
(a) In all circumstances in which the Corporation is
obligated to pay Registration Expenses pursuant to this Agreement, all expenses
of the Corporation incident to the Corporation's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, the expenses and fees for
listing the securities to be registered on each securities exchange or other
market on which any shares of Common Stock are then listed, and fees and
disbursements of counsel for the Corporation and its independent certified
public accountants, underwriters (excluding discounts and commissions
attributable to the Registrable Shares included in such registration) and other
Persons retained by the Corporation (all such expenses being herein called
"Registration Expenses"), will be borne by the Corporation. In addition, the
Corporation will pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review and the
expense of any liability insurance obtained by the Corporation.
(b) In all circumstances in which the Corporation is
obligated to pay Registration Expenses of Holders of Registrable Shares
pursuant to this Agreement, the Corporation will reimburse the Holders of
Registrable Shares covered by such registration for the reasonable costs and
expenses incurred by such Holders in connection with such registration,
including, without limitation, the reasonable fees and disbursements of one
counsel chosen by the Holders of a majority of the Investors' Shares requested
to be registered in such registration and separate counsel chosen by the
Founders, but excluding discounts and commissions attributable to the
Registrable Shares included in such registration.
7. Indemnification.
(a) The Corporation agrees to indemnify, to the fullest
extent permitted by law, each seller of Registrable Shares, its officers and
directors and each Person who controls
11
<PAGE> 12
such seller (within the meaning of the Securities Act or the Securities
Exchange Act) against all losses; claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees except as limited by
Section 7(c)) caused by any untrue or alleged untrue statement of a material
fact contained in any registration statement, any final prospectus contained
therein or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the
Corporation by such seller expressly for use therein or by such seller's
failure to deliver a copy of the registration statement or final prospectus or
any amendments or supplements thereto after the Corporation has furnished such
seller with a sufficient number of copies of the same. The reimbursements
required by this Section 7(a) will be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred.
(b) In connection with any registration statement in which a
seller of Registrable Shares is participating, each such seller will furnish to
the Corporation in writing such information and affidavits as the Corporation
reasonably requests for use in connection with any such registration statement
or prospectus and, to the fullest extent permitted by law, will indemnify the
Corporation, its directors and officers and each underwriter (if any) and each
Person who controls the Corporation or such underwriter (within the meaning of
the Securities Act or the Securities Exchange Act) against any losses, claims,
damages, liabilities and expenses (including, without limitation, reasonable
attorneys' fees except as limited by Section 7(c)) resulting from any untrue
statement of a material fact contained in the registration statement, final
prospectus contained therein, or any amendment thereof or supplement thereto or
any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such seller expressly for use therein; provided that
the obligation to indemnify will be several, not joint and several, among such
sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to, and provided further that such
liability will be limited to, the net amount received by such seller from the
sale of Registrable Shares pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without the indemnifying party's consent (which
consent will not be unreasonably withheld). The indemnified party will not
settle any claim or liability without first providing the indemnifying party a
reasonable opportunity to assume the defense. An indemnifying party who is not
entitled
12
<PAGE> 13
to, or elects not to, assume the defense of a claim will not be obligated to
pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to
such claim.
(d) The indemnification provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and will survive the transfer of securities.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages, liabilities or expenses referred to herein, then
the indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand, and the indemnified party on the other,
in connection with the statement or omission which resulted in such losses,
claims, damages, liabilities or expenses as well as any other relevant
equitable considerations, including the failure to give the notice required
hereunder. The relative fault of the indemnifying party and the indemnified
party shall be de by reference to, among other things whether the untrue or
alleged untrue statement of a material fact relates to information supplied by
the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Corporation and the Holders agree that it would
not be just and equitable if contributions pursuant to this Section 7(e) were
determined by pro rata allocation or by any other method of allocation which
did not take account the equitable considerations referred to herein. The
amount paid or payable to an indemnified party as a result of the losses,
claims, damages, liabilities or expenses referred to above shall be deemed to
include any legal or other expenses reasonably incurred in connection with
investigating or defending the same. Notwithstanding the foregoing, in no event
shall the amount contributed by any Holder exceed the aggregate net offering
proceeds received by any such Holder from the sale of its Registrable Shares.
No person guilty of fraudulent misrepresentations (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who is not guilty of such fraudulent misrepresentation.
8. Current Public Information. At all times after the
Corporation has filed a registration statement with the Commission pursuant to
the requirements of either the Securities Act or the Securities Exchange Act,
the Corporation will use its best efforts to file in a timely manner all
reports and other documents required to be filed by it under the Securities Act
and the Securities Exchange Act and the rules and regulations adopted by the
Commission thereunder and will use its best efforts to take such further action
as any Holder or Holders of Registrable Shares may reasonably request, all to
the extent required to enable such holders to sell Investors' Shares pursuant
to (i) Rule 144 adopted by the Commission under the Securities Act (as such
13
<PAGE> 14
rule may be amended from time to time) or any similar rule or regulation
hereafter adopted by the Commission or (ii) a registration statement on Form
S-2 or S-3 or any similar registration form hereafter adopted by the
Commission. Upon request, the Corporation shall deliver to any Holder of
Registrable Shares a written statement as to whether it has complied with such
requirements.
9. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting agreements. The Holders of a
majority of the Investors' Shares and the Founder's Shares requested to be
registered will have the right to select the managing underwriter(s) to
administer any Demand Registration which managing underwriter(s) shall be
acceptable to the Corporation. The Corporation will have such right in any
offering in which it participates; provided, however, that in any such case the
managing underwriters shall be nationally or regionally recognized
underwriter(s) approved by a Required Majority Vote of the Board (as defined in
the Purchase Agreement).
10. Adjustments Affecting Registrable Shares. The Corporation will at
all times in good faith assist in carrying out all of the provisions of this
Agreement and in the taking of all such action as may be reasonably necessary
or appropriate in order to protect the registration rights pursuant to this
Agreement of the Holders of Registrable Shares against impairment.
11. Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law.
12. Amendments and Waivers. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended or waived at any time.
only by the written agreement of the Corporation, the Holders of at least a
majority of the Investors' Shares and the Holders of a majority of the
Management Stockholder' Shares. Any waiver, permit, consent or approval of any
kind or character on the part of any such Holders of any provision or condition
of this Agreement must be made in writing and shall be effective only to the
extent specifically set forth in writing.
13. Successors and Assigns. Except as otherwise expressly provided
herein, the revisions of this Agreement shall be binding and inure to the
benefit of the respective successors, assigns, heirs, executors and
administrators of the parties hereto, whether so expressed or not. In addition
and whether or not any express assignment has been made, the provisions of this
Agreement which are for the benefit of Holders of Registrable Shares are also
for the benefit of, and enforceable by, any subsequent Holder of Registrable
Shares who consent in writing to be bound by this Agreement.
14
<PAGE> 15
14. Other Registration Rights. Except for the
registration rights granted hereunder, the Corporation will not grant to any
Persons the right to request the Corporation to register any equity securities
of the Corporation, or any securities convertible or exchangeable into or
exercisable for such securities, without the written consent of the Holders of
a majority of the Investors' Shares, and except for registrations pursuant to
registration rights granted to the Holders of Registrable Shares hereunder or
granted to other Persons pursuant to this Section 14 or primary registrations
of securities by the Corporation or registrations of securities being re-sold
by affiliates in a Rule 145 transaction pursuant to registration rights granted
to such affiliates that are subordinate to the registration rights of the
Investors hereunder, the Corporation shall not register any equity securities
of the Corporation, or any securities convertible or exchangeable into or
exercisable for such securities, without the written consent of the Holders of
a majority of the Investors' Shares. The Corporation will not include in any
Demand Registration any securities which are not Registrable Shares without the
written consent of the Holders of a majority of the Investors' Shares
requesting such registration. Notwithstanding the foregoing, the Corporation
may grant and register securities pursuant to the following rights (a)
subordinate piggyback registration rights not inconsistent with the
registration rights granted hereunder to other Persons and (b) demand
registration rights which are subordinate to the rights of the Investors with
respect to Demand Registrations hereunder.
15. Final Agreement. This Agreement constitutes the final
agreement of the parties concerning the matters referred to herein, and
supersedes all prior agreements and understandings.
16. Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
17. Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience of reference only and do not
constitute a part of and shall not be utilized in interpreting this Agreement.
18. Notices. Any notices required or permitted to be
sent hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, or delivered by overnight courier service to the following
addresses, or such other addresses as shall be given by notice delivered
hereunder, and shall be deemed to have been given upon delivery, if delivered
personally, three business days after mailing, if mailed, or one business day
after delivery to the courier, if delivered by overnight courier service:
If to the Holders of Investors' Shares, to the addresses set
forth in the stock records of the Corporation;
15
<PAGE> 16
With a copy (which shall not constitute notice) to:
Hopkins & Sutter
Three First National Plaza
Suite 3800
Chicago, Illinois 60602
Attention: Stanford J. Goldblatt
If to the Holders of Management Stockholders' Shares, to the
addresses set forth in the stock records of the Corporation.
If to the Corporation, to:
Sunrise Assisted Living, Inc.
9401 Lee Highway
Suite 300
Fairfax, VA 22031
Attention: President
With a copy (which shall not constitute notice) to:
Watt Tieder & Hoffar
7929 West Park Drive, Suite 400
McLean, Virginia 22101
Attention: Thomas Newell
and
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
Attention: Robert J. Waldman
19. Governing Law. All questions concerning the
construction, validity and interpretation of, and the performance of the
obligations imposed by, this Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (excluding the choice of law
provisions thereof).
20. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
21. Subsequent Parties. The Corporation may permit any
employee, officer, agent, consultant or director of the Corporation or any
Subsidiary (as defined in the Purchase Agreement) who hereafter owns, directly
or indirectly, one percent (1%) or more of the
16
<PAGE> 17
outstanding Common Stock of the Corporation (on a fully diluted basis) to
become a party to this Agreement as a Management Stockholder and a Holder of
Management Stockholders' Shares provided such employee, officer, agent,
consultant or director agrees by written consent to be bound by the terms of
this Agreement in such capacity as though he or she were an original signatory
hereto. For purposes of this Agreement, a Person will be deemed to be a holder
of Common Stock whenever such Person holds a security exercisable for or
convertible into Common Stock, whether or not such exercise or conversion has
actually been effected and whether or not such security is then exercisable.
Upon the delivery to the Corporation of such written consent, such officer,
employee, agent, consultant or director shall be bound by and entitled to the
benefits of this Agreement in such capacity.
22. Termination of Rights. The registration rights provided
by this Agreement shall terminate on the earlier of (a) the fifth anniversary
of the closing of the IPO, and (b) with regard to each Investor, Founder, or
Management Stockholder, at such time as such Investor, Founder or Management
Stockholder shall have an unlimited right to sell all of his, her or its
Registrable Shares in the public market without restriction on volume or
otherwise.
17
<PAGE> 18
The parties hereto have caused this Registration Agreement to
be executed and delivered in their names and on their names as of the date
first set forth above.
SUNRISE ASSISTED LIVING INC., a
Delaware corporation
By: /s/ PAUL J. KLAASSEN
---------------------------------------
Its: Chairman of the Board, President and
---------------------------------------
Chief Executive Officer
/s/ PAUL J. KLAASSEN
-------------------------------------------
Paul J. Klaassen
/s/ TERESA M. KLAASSEN
-------------------------------------------
Teresa M. Klaassen
<PAGE> 19
FRONTENAC VI LIMITED
PARTNERSHIP
By: Frontenac Company, its general
partner
By: /s/ SCOTT F. MEADOW
----------------------------------
Its: Scott F. Meadow, General Partner
---------------------------------
<PAGE> 20
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation, its
managing general partner
By: /s/ PAUL B. QUEALLY
-----------------------------------------
Paul B. Queally, its Attorney-in-Fact
DLJ CAPITAL CORPORATION, a
Delaware corporation
By: /s/ PAUL B. QUEALLY
-----------------------------------------
Paul B. Queally, its Attorney-in-Fact
<PAGE> 21
ALLSTATE INSURANCE COMPANY
By: /S/
------------------------------------
Its Authorized Signatory
By: /S/
------------------------------------
Its Authorized Signatory
ALLSTATE LIFE INSURANCE
COMPANY
By: /S/
------------------------------------
Its Authorized Signatory
By: /S/
------------------------------------
Its Authorized Signatory
Continental Trust Company,
as Trustee for the
ALLSTATE RETIREMENT PLAN
By: /S/
------------------------------------
Its: Vice President
-----------------------------------
Continental Trust Company,
as Trustee for the
AGENTS PENSION PLAN
By: /S/
------------------------------------
Its: Vice President
-----------------------------------
<PAGE> 22
SCHEDULE 1
Allstate Insurance Company
Allstate Life Insurance Company
Allstate Retirement Plan
Agents Pension Plan
Sprout Growth II, L.P.
DLJ Capital Corporation
Frontenac VI Limited Partnership
