<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
(AMENDMENT NO. 1)
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934
------------------------
Suburban Ostomy Supply Co., Inc.
--------------------------------
(NAME OF SUBJECT COMPANY)
Inva Acquisition Corp.
Invacare Corporation
--------------------
(BIDDERS)
Common Stock, No Par Value
--------------------------
(TITLE OF CLASS OF SECURITIES)
864471 10 7
-----------
(CUSIP NUMBER OF CLASS OF SECURITIES)
Thomas R. Miklich, Esq.
Chief Financial Officer, General Counsel,
Treasurer and Corporate Secretary
Invacare Corporation
One Invacare Way
Elyria, Ohio 44036
(440) 329-6000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSONS AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF BIDDERS)
COPIES TO:
Dale C. LaPorte, Esq.
Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
(216) 622-8200
<PAGE> 2
This Amendment No.1 amends the combined Tender Offer Statement on
Schedule 14D-1 and Statement on Schedule 13D initially filed on December 22,
1997 (the "Statement") by Invacare Corporation, an Ohio corporation (the
"Parent"), and its wholly owned subsidiary Inva Acquisition Corp., a
Massachusetts corporation (the "Purchaser"), relating to the Purchaser's tender
offer for all of the outstanding shares of common stock, no par value, of
Suburban Ostomy Supply Co., Inc., a Massachusetts corporation (the "Company").
Unless otherwise defined herein, all capitalized terms used herein shall have
the respective meanings given such terms in the Statement.
Item 4. SOURCE AND AMOUNT OF FUNDS
The information set forth in Section 10-- "Source and Amount of Funds"
of the Offer to Purchase is hereby amended to add as follows:
Subsequent to the filing of the Statement, the Parent and lenders
finalized an increase in the maximum borrowing availability under the Loan
Agreement from $360 million to $425 million. At January 5, 1998, Parent had
approximately $150.1 million outstanding and $274.9 million available for
borrowing under the Loan Agreement.
Item 10. ADDITIONAL INFORMATION
The information set forth in Section 15-- "Certain Legal Matters" of
the Offer to Purchase is hereby amended to add as follows:
Antitrust.
On January 2, 1998, Parent, the Purchaser and the Company were
notified that they had been granted early termination of the waiting
period under the HSR Act applicable to the Offer with respect to the Company's
and Parent's Notification and Report Forms. A copy of the press release
issued by Parent and the Company announcing early termination of the waiting
period is attached hereto as Exhibit (a)(9) and is incorporated herein by
reference.
Item 11. MATERIAL TO BE FILED AS EXHIBITS
(a)(9) Text of Press Release dated January 7, 1998, issued by the
Parent and the Company.
(b)(2) Letter Agreement, dated December 23, 1997, among the Parent and
NBD Bank and Key Bank National Association.
(b)(3) Assumption Agreement dated December 23, 1997, among the Parent
and NBD Bank and Bank of Montreal.
(b)(4) Assumption Agreement dated December 23, 1997, among the Parent
and NBD Bank and Michigan National Bank.
In addition, exhibits (c)2 and (c)3, which were previously filed on
December 22, 1997, are hereby amended for the sole purpose of including the
conformed signatures of all relevant parties.
<PAGE> 3
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
Dated: January 7, 1998
INVA ACQUISITION CORP.
By: /s/ Thomas R. Miklich
----------------------------------------------
Name: Thomas R. Miklich
Title: Treasurer
INVACARE CORPORATION
By: /s/ Thomas R. Miklich
----------------------------------------------
Name: Thomas R. Miklich
Title: Chief Financial Officer, General Counsel,
Treasurer and Corporate Secretary
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No Exhibit Name Page Number
- ---------- ------------ -----------
<S> <C>
(a)(9) Text of Press Release dated January 7, 1998, issued by the Parent and the Company.
(b)(2) Letter Agreement, dated December 23, 1997, among the Parent and NBD Bank and Key Bank
National Association.
(b)(3) Assumption Agreement dated December 23, 1997 among the Parent and NBD Bank and Bank of
Montreal.
(b)(4) Assumption Agreement dated December 23, 1997 among the Parent and NBD Bank and
Michigan National Bank.
(c)(2) Confidentiality Agreement dated September 5, 1997, among the Parent and
Bear, Stearns & Co. Inc. on behalf of the Company.
(c)(3) Stockholders Agreement dated December 17, 1997, among Purchaser, Parent and
Herbert Gray, Donald Benovitz, Summit Ventures III, L.P., Summit Investors II, L.P., and
Summit Subordinated Debt Fund, L.P.
</TABLE>
<PAGE> 1
Exhibit (a)(9)
[INVACARE LOGO]
NEWS RELEASE
INVACARE AND SUBURBAN OSTOMY SUPPLY GRANTED
EARLY TERMINATION OF ANTITRUST WAITING PERIOD
ELYRIA, Ohio--January 7, 1998--Invacare Corporation (NASDAQ:IVCR) and
Suburban Ostomy Supply Co., Inc. (NASDAQ:SOSC), announced today that,
in connection with Invacare's previously announced tender offer for its wholly
owned subsidiary, Inva Acquisition Corp., to acquire all of the outstanding
shares of common stock of Suburban Ostomy Supply Co., Inc., the U.S.
Department of Justice and the Federal Trade Commission have granted Invacare
and Suburban early termination of the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976.
Early termination of the waiting period satisfies one of the conditions
of the tender offer pursuant to the merger agreement among Invacare, Inva
Acquisition Corp. and Suburban, announced December 17, 1997. The tender offer,
for $11.75 per share, is still subject to certain other conditions and is
scheduled to expire at Midnight, New York City time, January 22, 1998, unless
extended.
Suburban Ostomy Co., Inc., which completed its initial public offering
in October 1996, is a direct marketing wholesaler of medical supplies and
related products to the home health care industry. The company sells products
to over 23,000 customers, including: home medical equipment suppliers and
pharmacies; home health agencies; national home health care chains; and managed
care organizations. Through its direct sales and marketing programs, the
company markets a comprehensive selection of more than 7,000 stock keeping
units, primarily products for ostomy, incontinence, diabetic and wound care.
Invacare's headquarters are in Elyria, OH, with manufacturing plants in
the United States, Australia, Canada, Germany, France, Mexico, New Zealand,
Portugal, Switzerland and the United Kingdom. Products are distributed
worldwide through more than 10,000 professional home health care providers,
institutions and retail outlets.
Media Inquiries: Susan A. Elder, Manager of Corporate Communications,
440/329-6549
Investor Inquiries: Thomas R. Miklich, Chief Financial Officer, 440/329-6111
<PAGE> 1
Exhibit (b)(2)
NBD Bank, as Agent
611 Woodward Avenue
Detroit, Michigan 48226
December 23, 1997
Invacare Corporation
899 Cleveland Street
P.O. Box 4028
Elyria, Ohio 44036-2125
Attention: Chief Financial Officer
Re: Loan Agreement dated as of November 18, 1997 (the "Loan
Agreement") among Invacare Corporation (the "Company") and
certain other Borrowers named therein, the Banks named
therein, NBD Bank, as Agent, and KeyBank National Association,
as Co-Agent
Ladies and Gentlemen:
The Borrowers have requested that NBD Bank increase its Commitment
under the Loan Agreement from $85,000,000 to $92,500,000 and that KeyBank
National Association increase its Commitment under the Loan Agreement from
$75,000,000 to $82,500,000. NBD Bank and KeyBank National Association each
hereby agree to increase their respective Commitments to such respective amounts
as set forth next to their respective name on the Schedule of Commitments
attached hereto. By its acceptance below, Invacare Corporation hereby consents
and agrees to the Schedule of Commitments attached hereto.
The agreements set forth herein shall not become binding on any party
hereto until a duly authorized officer of each party hereto shall have executed
a counterpart of this letter and delivered such counterpart to the Agent. The
terms used but not defined herein shall have their respective meanings ascribed
thereto in the Loan Agreement.
NBD BANK, as Agent and as a Bank
By: /s/ Winifred S. Pinet
-----------------------------------------
Its: First Vice President
------------------------------------
KEYBANK NATIONAL ASSOCIATION, as Co-
Agent and as a Bank
By: /s/ Richard A. Pohle
-----------------------------------------
Its: Vice President
------------------------------------
<PAGE> 2
Accepted and Agreed:
INVACARE CORPORATION, as Treasury
Manager for the Borrowers
By: /s/ Thomas R. Miklich
---------------------------------------
Its: Chief Financial Officer
------------------------------------
2
<PAGE> 3
SCHEDULE OF COMMITMENTS
<TABLE>
<CAPTION>
Percentage of
Commitment Revolving Credit
Bank Amount Commitment
- ---- ---------- ----------------
<S> <C> <C>
NBD Bank $92,500,000 21.77%
KeyBank National Association 82,500,000 19.42%
National City Bank 50,000,000 11.77%
Societe Generale 25,000,000 5.88%
Sun Trust Bank, Central Florida, N.A. 25,000,000 5.88%
Wachovia Bank of Georgia, NA 25,000,000 5.88%
PNC Bank, National Association 25,000,000 5.88%
Commerzbank, Aktiengesellschaft,
Chicago Branch 25,000,000 5.88%
The Bank of New York 25,000,000 5.88%
Michigan National Bank 25,000,000 5.88%
Bank of Montreal 25,000,000 5.88%
-------------
TOTAL COMMITMENT OF ALL OF THE BANKS: $425,000,000
</TABLE>
<PAGE> 1
Exhibit (b)(3)
ASSUMPTION AGREEMENT
--------------------
Reference is made to the Loan Agreement dated as of November 18, 1997
(as now or hereafter amended or modified from time to time, the "Loan
Agreement") among INVACARE CORPORATION, an Ohio Corporation (the "Company"),
each of the Borrowing Subsidiaries designated therein from time to time
(collectively with the Company, the "Borrowers" and each individually a
"Borrower"), the Banks named therein (the "Banks"), NBD BANK, as agent for the
Banks (the "Agent") and KEYBANK NATIONAL ASSOCIATION, as co-agent for the Banks.
Terms defined in the Loan Agreement are used herein with the same meaning.
1. Bank of Montreal ("New Bank") has decided to become a Bank under the
Loan Agreement, with its Commitment, Percentage of Total Commitments and address
for notice as described next to its signature below. The New Bank (i) confirms
that it has received a copy of the Loan Agreement, together with copies of the
financial statements referred to in Section 4.6 thereof and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assumption Agreement; (ii) agrees that it will,
independently and without reliance upon the Agent, the Co-Agent or any Bank and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Agreement; (iii) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Loan Agreement as are delegated to the Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto; (iv)
agrees that it will perform in accordance with their terms of all of the
obligations that by the terms of the Loan Agreement are required to be performed
by it as a Bank; and (v) if the New Bank is organized under the laws of a
jurisdiction outside the United States, attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the New Bank's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the New Bank under the Loan
Agreement and the Notes or such other documents as are necessary to indicate
that all such payments are subject to such taxes at a rate reduced by an
applicable tax treaty.
2. Following the execution of this Assumption Agreement, it will be
delivered to the Agent and the Company for acceptance by the Agent and the
Company and recording by the Agent. The effective date for this Assumption
Agreement (the "Effective Date") shall be the date of acceptance hereof by the
Agent and the Company.
3. Upon such acceptance by the Agent and the Company and recording by
the Agent,
-1-
<PAGE> 2
as of the Effective Date, the New Bank shall be a party to the Loan Agreement
and, to the extent provided in this Assumption Agreement, have the rights and
obligations of a Bank thereunder. On the Effective Date, the New Bank shall, in
fulfillment of its obligations as a Bank under the Loan Agreement, fund its
share of outstanding Revolving Credit Advances in accordance with its Percentage
of Total Commitment by making available such amount to the Agent in immediately
available funds at the principal office of the Agent. The Agent shall promptly
adjust the balance of outstanding Revolving Credit Advances owing to each Bank
in accordance with each Bank's new Percentage of Total Commitment and promptly
remit to each Bank any repayment due such Bank as a result of such adjustment.
In the event any Eurodollar Rate Loans are outstanding on the Effective Date and
the repayment of such Eurodollar Rate Loans prior to the last day of the
applicable Eurodollar Interest Period would result in costs and expenses to any
Bank as described in Section 3.8 of the Loan Agreement, the New Bank shall
purchase a participation interest in any outstanding Eurodollar Rate Loans from
each Bank which would suffer such costs and expenses. The amount of the
participation interest purchased by the New Bank from any Bank under this
paragraph shall be equal to the amount of the repayment such Bank would have
received with respect to such Eurodollar Rate Loan as a result of the adjustment
described in this paragraph.
4. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of Michigan.
5. This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6. Upon acceptance and recording by the Agent, the Agent shall notify
each Bank and the Company of the Percentage of Total Commitments of each Bank,
which shall be binding on all parties.
-2-
<PAGE> 3
IN WITNESS WHEREOF, the New Bank has caused this Assumption Agreement
to be executed by its officer thereunto duly authorized as of the date specified
thereon.
- ------------------------- BANK OF MONTREAL
- -------------------------
- -------------------------
Attention:
--------------- By: /s/ Irene M. Geller
Facsimile No. (___) ___-_____ --------------------------------
Its: Director
---------------------------
Commitment Amount $25,000,000
Percentage of Total Commitments: 5.88%
Accepted and Agreed:
NBD BANK, as Agent
By: /s/ Winifred S. Pinet
--------------------------------
Its: First Vice President
----------------------------
INVACARE CORPORATION, as Treasury
Manager on behalf of the Borrowers
By: /s/ Thomas R. Miklich
--------------------------------
Its: Chief Financial Officer
----------------------------
Effective Date: December 23, 1997
-3-
<PAGE> 1
Exhibit (b)(4)
ASSUMPTION AGREEMENT
--------------------
Reference is made to the Loan Agreement dated as of November 18, 1997
(as now or hereafter amended or modified from time to time, the "Loan
Agreement") among INVACARE CORPORATION, an Ohio Corporation (the "Company"),
each of the Borrowing Subsidiaries designated therein from time to time
(collectively with the Company, the "Borrowers" and each individually a
"Borrower"), the Banks named therein (the "Banks"), NBD BANK, as agent for the
Banks (the "Agent") and KEYBANK NATIONAL ASSOCIATION, as co-agent for the Banks.
Terms defined in the Loan Agreement are used herein with the same meaning.
1. Michigan National Bank ("New Bank") has decided to become a Bank
under the Loan Agreement, with its Commitment, Percentage of Total Commitments
and address for notice as described next to its signature below. The New Bank
(i) confirms that it has received a copy of the Loan Agreement, together with
copies of the financial statements referred to in Section 4.6 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assumption Agreement; (ii)
agrees that it will, independently and without reliance upon the Agent, the
Co-Agent or any Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Agreement; (iii) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with their terms of all of the obligations that by the terms of the Loan
Agreement are required to be performed by it as a Bank; and (v) if the New Bank
is organized under the laws of a jurisdiction outside the United States,
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the New Bank's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the New Bank under the Loan Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such taxes at a rate reduced by an applicable tax treaty.
2. Following the execution of this Assumption Agreement, it will be
delivered to the Agent and the Company for acceptance by the Agent and the
Company and recording by the Agent. The effective date for this Assumption
Agreement (the "Effective Date") shall be the date of acceptance hereof by the
Agent and the Company.
3. Upon such acceptance by the Agent and the Company and recording by
the Agent,
-1-
<PAGE> 2
as of the Effective Date, the New Bank shall be a party to the Loan Agreement
and, to the extent provided in this Assumption Agreement, have the rights and
obligations of a Bank thereunder. On the Effective Date, the New Bank shall, in
fulfillment of its obligations as a Bank under the Loan Agreement, fund its
share of outstanding Revolving Credit Advances in accordance with its Percentage
of Total Commitment by making available such amount to the Agent in immediately
available funds at the principal office of the Agent. The Agent shall promptly
adjust the balance of outstanding Revolving Credit Advances owing to each Bank
in accordance with each Bank's new Percentage of Total Commitment and promptly
remit to each Bank any repayment due such Bank as a result of such adjustment.
In the event any Eurodollar Rate Loans are outstanding on the Effective Date and
the repayment of such Eurodollar Rate Loans prior to the last day of the
applicable Eurodollar Interest Period would result in costs and expenses to any
Bank as described in Section 3.8 of the Loan Agreement, the New Bank shall
purchase a participation interest in any outstanding Eurodollar Rate Loans from
each Bank which would suffer such costs and expenses. The amount of the
participation interest purchased by the New Bank from any Bank under this
paragraph shall be equal to the amount of the repayment such Bank would have
received with respect to such Eurodollar Rate Loan as a result of the adjustment
described in this paragraph.
4. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of Michigan.
5. This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6. Upon acceptance and recording by the Agent, the Agent shall notify
each Bank and the Company of the Percentage of Total Commitments of each Bank,
which shall be binding on all parties.
-2-
<PAGE> 3
IN WITNESS WHEREOF, the New Bank has caused this Assumption Agreement
to be executed by its officer thereunto duly authorized as of the date specified
thereon.
2777 Inkster Road MICHIGAN NATIONAL BANK
P.O. Box 9065
Farmington Hills, Michigan 48333
Attention: Intl. Banking Dept. By: /s/ Christopher J. Mayone
Facsimile No. (248) 615-5910 ------------------------------------
Its: Commercial Relationship Manager
-----------------------------------
Commitment Amount $25,000,000
Percentage of Total Commitments: 5.88%
Accepted and Agreed:
NBD BANK, as Agent
By: /s/ Winifred S. Pinet
-----------------------------------
Its: First Vice President
----------------------------------
INVACARE CORPORATION, as Treasury
Manager on behalf of the Borrowers
By: /s/ Thomas R. Miklich
-----------------------------------
Its: Chief Financial Officer
----------------------------------
Effective Date: December 23, 1997
-3-
<PAGE> 1
Exhibit (c)(2)
[Bear Stearns logo]
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
(212) 272-2000
September 5, 1997
Invacare Corporation
899 Cleveland Street
Elyria, OH 44036
Attention: Thomas Miklich
Chief Financial Officer
You have requested that Suburban Ostomy Supply Co., Inc. (the
"Company"), provide you with financial, operating and other information
concerning the Company, which may include confidential information which has not
been generally disclosed to the public, for use in connection with a possible
transaction (a "Transaction") between you and the Company and/or its
shareholders.
It is acknowledged that it would be in the best interests of the
Company that, if a Transaction is to proceed, confidential information be made
available to you for purposes of evaluating and/or implementing a Transaction.
Therefore, subject to the terms and conditions hereof, and to the extent which
the Company in its sole discretion considers advisable in the circumstances, the
Company agrees to provide certain Information (as defined below) to you for the
purpose of evaluating a possible Transaction.
All information relating to the Company and its affiliates now or
hereafter furnished to you by the Company or its affiliates or their respective
directors, officers, employees, agents or representatives, and all analyses,
compilations, or other documents prepared by you or your directors, officers,
employees, agents or representatives (collectively, your "Representatives"),
containing or based upon, in whole or in pan, any such information is referred
to herein as the "Information"). As a condition to the agreement and consent of
the Company herein contained, you and the Company agree as follows:
Except as may be permitted pursuant to this Agreement, you will not,
and will direct your Representatives not to, disclose to any other person that
the Information has been made available
<PAGE> 2
Invacare Corporation
09/05/97
Page 2
to you, that discussions or negotiations are taking place concerning a potential
Transaction, or any of the terms, conditions or other facts with respect to any
such Transaction. The term "person" as used in this Agreement shall be broadly
interpreted to include, without limitation, any individual, corporation,
company, group, partnership or other entity.
You will keep the Information confidential and will not, without the
prior written consent of the Company, disclose in any manner whatsoever, in
whole or in part, and will not use directly or indirectly, the Information other
than to evaluate a potential Transaction, You agree to transmit the Information
only to those of your Representatives who need to know the Information in order
to assist you in evaluating a potential Transaction, who shall be informed by
you of the confidential nature of the Information and who agree to be bound by
the terms of this Agreement. You agree to be responsible for any breach of this
Agreement by any of your Representatives. You shall make all reasonable,
necessary or appropriate efforts to safeguard the Information from disclosure to
anyone other than as permitted hereby.
If you determine that you do not wish to be involved in a Transaction,
you will promptly advise the Company of that fact. If the Company requests for
any reason whatsoever, you will promptly re-deliver to the Company or destroy
all documents furnished by the Company or its representatives to you or your
Representatives or derived by you or your Representatives therefrom constituting
the Information, without retaining copies thereof.
The obligations imposed on you hereunder shall not apply to any
Information (i) which is or becomes generally available to the public other than
as a result of a disclosure by your or your Representatives; (ii) which becomes
available to you on a non-confidential basis from a source other than the
Company or its affiliates of their respective representatives, provided that to
your knowledge, such source is not bound by a confidentiality agreement with the
Company or its affiliates or is not otherwise prohibited from transmitting the
Information to you by a contractual, legal or fiduciary obligation; or (iii)
which was known to you on a non-confidential basis prior to disclosure to you by
the Company or its affiliates or their respective representatives, provided that
such information is not known by you to be subject to another confidentiality
agreement with or other obligation of secrecy of the Company or another party.
Although you understand that the Company will attempt to include in the
Information those materials which are believed to be reliable and relevant to
assist you in evaluating a potential Transaction, you acknowledge that neither
the Company nor any of its representatives makes any representation or Warranty
as to the accuracy or completeness of the Information, or shall have any
liability with respect thereto, except as otherwise provided in a definitive
agreement with the Company entered into in connection with the Transaction which
provides specific representations or warranties and only to the extent of such
specific representations or warranties.
In the event that you or any of your Representatives becomes legally
compelled (by oral questions, interrogations, requests for information or
documents, subpoena, civil investigative
<PAGE> 3
Invacare Corporation
09/05/97
Page 3
demand or similar process) to disclose any of the Information, you will provide
the Company with prompt notice so that the Company may seek a protective order
or other appropriate remedy or waive compliance with the provisions of this
Agreement. You will cooperate with the Company on a reasonable basis in its
efforts to obtain a protective order or other remedy. In the event that such
protective order or other remedy is not obtained or the Company waives
compliance with the provisions of this Agreement, you or your Representatives
will furnish only that portion of the Information which is legally required and
you will exercise reasonable efforts to obtain reliable assurances that
confidential treatment will be accorded the Information.
You acknowledge that you are aware, and you will advise your
Representatives, that securities laws prohibit any person who has received from
an issuer material non-public information concerning the matters which are the
subject of this Agreement from purchasing or selling securities of such issuer
or selling securities of such issuer or from communicating such information to
any other person.
During the period of two years from the date hereof, you and your
affiliates shall not, without the prior written authorization of the board of
directors of the Company: (i) acquire or agree to acquire or make any proposal
to acquire, in any manner, any securities or property of the Company or its
affiliates, (ii) assist, advise or encourage any other persons to acquire or
agree to acquire, in any manner, any securities or property of the Company or
its affiliates; (iii) solicit proxies of the Company's shareholders, or form,
join or in any way participate in a proxy group; (iv) seek any modification to
or waiver of your agreements and obligations under this Agreement, or (v) make
any public announcement with respect to the foregoing, except as may be required
by applicable law or regulatory authorities. Nothing herein shall be deemed to
prohibit you or your affiliates from acquiring an indirect interest in the
Company through the investment in a public mutual fund which has invested in the
Company.
Without the prior written consent of the Company, you agree that you
shall not, for a period of two years from the date hereof, solicit to employ or
employ any person who is now employed by the Company and who is identified by
you in connection with your evaluation of a potential Transaction.
You acknowledge and agree that the Company would not have an adequate
remedy at law and would be irreparably harmed in the event that any of the
provisions of this Agreement were not performed by you in accordance with their
specific terms or were otherwise breached by you in accordance with their
specific terms or were otherwise breached by you. Accordingly, you agree that
the Company shall be entitled to injunctive relief to prevent breaches of this
Agreement and to specifically enforce the terms and provisions hereof in
addition to any other remedy to which the company may be entitled at law or in
equity. The prevailing party in any such litigation will be entitled to payment
of its legal fees and disbursements, court costs and other expenses of
enforcing, defending or otherwise protecting its interest hereunder.
<PAGE> 4
Invacare Corporation
09/05/97
Page 4
It is further understood and agreed that no failure or delay by the
Company in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or future exercise of any right, power or privilege
hereunder.
You agree that unless and until a definitive Agreement between the
Company and you with respect to a Transaction has been executed and delivered,
neither the Company nor you will be under any legal obligation of any kind
whatsoever with respect to such Transaction by virtue of this or any written or
oral expression with respect to such a Transaction by any of the Company's
directors, officers, employees, agents or other representatives except, in the
case of this letter, for the matters specifically agreed to herein. You
acknowledge and agree that (a) the Company and its advisors are free to conduct
a process which may lead the Company to conclude the Transaction as it in its
sole discretion may determine, (b) the Company reserves the right, in its sole
discretion, to change the procedures relating to its consideration of a
Transaction at any time without prior notice to you (including, without
limitation, by negotiation with a third party with respect to a business
transaction and entering into a definitive agreement relating thereto) to reject
any and all proposals made with regard to a Transaction and to terminate
discussions and negotiations at any time for any reason.
You agree that unless otherwise consented to by the Company, all
requests for Information, and any questions related thereto, will be directed to
Bear, Stearns & Co. Inc., 245 Park Avenue, New York, NY 10167, (212)272-2000,
Attention: Robert Yedid.
This Agreement shall insure for the benefit of and be binding upon each
of the parties and/or their respective successors and assigns. This Agreement
shall constitute the entire Agreement between the parties with respect to the
subject matter hereof and may not be modified or amended except by written
consent of those parties hereto. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts and
the Federal court located in Boston, Massachusetts.
<PAGE> 5
Invacare Corporation
09/05/97
Page 5
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter whereupon this letter will
constitute our agreement with respect to the subject matter hereof.
Very truly yours,
BEAR, STEARNS & CO. INC.
for itself and on behalf of Suburban Ostomy
Supply Company, Inc.
By: /s/ Robert Yedid
-------------------------------------
Managing Director
Confirmed and Agreed to
this 5 day of September, 1997
Invacare Corporation
By: /s/ Thomas R. Miklich
---------------------------
Name: Thomas R. Miklich
Title: CFO
<PAGE> 1
Exhibit (c)(3)
STOCKHOLDERS AGREEMENT
AGREEMENT, dated as of December 17, 1997, among Invacare Corporation, an Ohio
corporation (the "Buyer"), Inva Acquisition Corp., a Massachusetts corporation
and a wholly owned subsidiary of Buyer (the "MergerCo."), and the stockholders
identified on the signature page hereof (the "Stockholders").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this Agreement, Buyer,
MergerCo., and Suburban Ostomy Supply Co., Inc., a Massachusetts corporation
(the "Company"), have entered into an Agreement and Plan of Merger (as such
agreement may hereafter be amended from time to time, the "Merger Agreement"),
pursuant to which MergerCo. will be merged with and into the Company (the
"Merger");
WHEREAS, in furtherance of the Merger, Buyer, MergerCo. and the Company desire
that as soon as practicable (and not later than five business days) after the
announcement of the execution of the Merger Agreement, MergerCo. shall commence
a cash tender offer (the "Offer") to purchase at a price of $11.75 per share all
outstanding shares of Common Stock (as defined in Section 1 hereof) of the
Company, including all of the Shares (as defined in Section 2 hereof)
beneficially owned by the Stockholders; and
WHEREAS, as an inducement and a condition to entering into the Merger Agreement,
Buyer and MergerCo. have required that the Stockholders agree, and Stockholders
have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having beneficial ownership of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as within the meaning of Section 13(d)(3) of
the Exchange Act.
(b) "Common Stock" shall mean at any time the Common Stock, no
par value, of the Company.
(c) "Permitted Transferee" means, as to any Stockholder, any
one or more of the following Persons to whom such Stockholder transfers Shares:
(i) the spouse, child, grandchild or parent of such Stockholder, (ii) a trust
created for the exclusive benefit of the Stockholder and any one or more of the
Persons identified in clause (i), or (iii) a charitable organization or trust
created for the exclusive benefit of a charitable organization.
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<PAGE> 2
(d) "Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
(e) Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement.
2. TENDER OF SHARES.
(a) In order to induce Buyer and MergerCo. to enter into the
Merger Agreement, the Stockholders hereby agree to validly tender (or cause the
record owner of such shares to validly tender), and not to withdraw, pursuant to
and in accordance with the terms of the Offer, not later than the fifteenth
business day after commencement of the Offer pursuant to Section 1.1 of the
Merger Agreement and Rule 14d-2 under the Exchange Act, the number of shares of
Common Stock set forth opposite the Stockholder's name on Schedule I hereto (the
"Existing Shares"), all of which are Beneficially Owned by such Stockholder, and
any shares of Common Stock acquired by such Stockholder in any capacity after
the date hereof and prior to the termination of this Agreement by means of
purchase, dividend, distribution or in any other way (such shares of Common
Stock, together with the Existing Shares, the "Shares"). The Stockholders hereby
acknowledge and agree that MergerCo.'s obligation to accept for payment and pay
for the Shares in the Offer, including the Shares Beneficially Owned by the
Stockholders, is subject to the terms and conditions of the Offer.
(b) The Stockholders hereby permit Buyer and MergerCo. to
publish and disclose in the Offer Documents and, if approval of the Company's
stockholders is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC), their identity and ownership of
the Shares, and the nature of their commitments, arrangements and understandings
under this Agreement.
3. ADDITIONAL AGREEMENTS.
(a) VOTING AGREEMENT. Each Stockholder shall, at any meeting
of the holders of Common Stock, however called, or in connection with any
written consent of the holders of Common Stock, vote (or cause to be voted) the
Shares (if any) then held of record or Beneficially Owned by such Stockholder,
(i) in favor of the Merger, the execution and delivery by the Company of the
Merger Agreement and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement and this Agreement and any actions
required in furtherance thereof and hereof; and (ii) against any Transaction
Proposal and against any action or agreement that would impede, frustrate,
prevent or nullify this Agreement, or result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or which would result in any of the
conditions set forth in Annex I to the Merger Agreement or set forth in Article
VIII of the Merger Agreement not being fulfilled.
(b) NO INCONSISTENT ARRANGEMENTS. Each Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, such Stockholder shall not (i) transfer (which term shall
include, without limitation, any sale, gift, pledge or other disposition), or
consent to any transfer of, any or all of the Shares or any interest therein,
(ii) enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all of the Shares or any interest therein,
(iii) grant any proxy,
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<PAGE> 3
power-of-attorney or other authorization in or with respect to the Shares, (iv)
deposit the Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shares or (v) take any other action that would
in any way restrict, limit or interfere with the performance of such
Stockholder's obligations hereunder or the transactions contemplated hereby or
by the Merger Agreement. Notwithstanding the foregoing, a Stockholder may
transfer Shares to a Permitted Transferee if prior to such transfer such
Permitted Transferee executes a counterpart of this Agreement in form
satisfactory to Buyer agreeing to be bound by all of the terms hereof as if such
Permitted Transferee were an original signatory of this Agreement.
(c) GRANT OF IRREVOCABLE LIMITED PROXY; APPOINTMENT OF LIMITED
PROXY. (i) Each Stockholder hereby irrevocably grants to, and appoints, Buyer
and Thomas R. Miklich and Thomas J. Buckley, or any one of them, in their
respective capacities as officers of Buyer, and any individual who shall
hereafter succeed to any such office held by such individuals with Buyer, and
each of them individually, the Stockholder's limited proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
Stockholder, solely for the purpose of voting the Shares, or granting a consent
or approval in respect of the Shares in favor of the Merger and against any
Transaction Proposal, (ii) Each Stockholder represents that any proxies
heretofore given in respect of such Stockholder's Shares are not irrevocable,
and that any such proxies are hereby revoked; (iii) Each Stockholder understands
and acknowledges that Buyer and MergerCo. are entering into the Merger Agreement
in reliance upon such Stockholder's execution and delivery of this Agreement.
Each Stockholder hereby affirms that the irrevocable limited proxy set forth in
this Section 3(c) is given in connection with the execution of the Merger
Agreement, and that such irrevocable limited proxy is given to secure the
performance of the duties of such Stockholder under this Agreement. Each
Stockholder hereby further affirms that the irrevocable limited proxy is coupled
with an interest and may under no circumstances be revoked except upon
termination in accordance with the provisions of Section 8. Each Stockholder
hereby ratifies and confirms all that such irrevocable limited proxy holder may
lawfully do or cause to be done by virtue hereof. Such irrevocable limited proxy
is executed and intended to be irrevocable in accordance with the provisions of
Chapter 156B, Section 41 of the Massachusetts General Laws.
(d) NO SOLICITATION. The Stockholders hereby agree, in their
capacities as Stockholders of the Company, that neither the Stockholders nor any
of their subsidiaries or affiliates shall (and each Stockholder shall cause its
officers, directors, employees, representatives and agents, including, but not
limited to, investment bankers, attorneys and accountants, not to), directly or
indirectly, encourage, solicit, participate in or initiate discussions or
negotiations with, or provide any information to, any corporation, partnership,
person or other entity or group (other than Buyer, any of its affiliates or
representatives) concerning any Transaction Proposal. The Stockholders will
immediately cease any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any Transaction Proposal. The
Stockholders will immediately communicate to Buyer the terms of any proposal,
discussion, negotiation or inquiry (and will disclose any written materials
received by any Stockholder in connection with such proposal, discussion,
negotiation or inquiry) and the identity of the party making such proposal or
inquiry which any Stockholder may receive in respect of any such transaction.
Any action taken by the Company or any member of the Board of Directors of the
Company in accordance with Section 7.6 of the Merger Agreement shall be deemed
not to violate this Section 3(d).
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<PAGE> 4
(e) CONSULTATION. Each party shall promptly consult with the
others and provide any necessary information and material with respect to all
filings made by such party with any governmental entity in connection with this
Agreement and the Merger Agreement, the Offer and the transactions contemplated
hereby and thereby.
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each Stockholder hereby
separately represents and warrants (solely with respect to such Stockholder and
not with respect to any other Stockholder) to Buyer and MergerCo. as follows:
(a) OWNERSHIP OF SHARES. The Stockholder is the record and
Beneficial Owner of the Existing Shares, as set forth on Schedule I. On the date
hereof, the Existing Shares constitute all of the Shares owned of record or
Beneficially Owned by the Stockholders. The Stockholder has sole voting power
and sole power to issue instructions with respect to the matters set forth in
Sections 2, 3 and 4 hereof, sole power of disposition and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Existing Shares with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of this
Agreement.
(b) POWER; BINDING AGREEMENT. The Stockholder has the power
(corporate, partnership or other) and authority to enter into and perform all of
such Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which the Stockholder is a party including, without limitation, any
voting agreement, proxy arrangement, pledge agreement, stockholders agreement or
voting trust. This Agreement has been duly and validly executed and delivered by
the Stockholder and constitutes a valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which the Stockholder is a trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
the Stockholder of the transactions contemplated hereby.
(c) NO CONFLICTS. Except for filings under the HSR Act and the
Exchange Act (i) no filing with, and no permit, authorization, consent or
approval of, any governmental entity is necessary for the execution of this
Agreement by the Stockholder and the consummation by the Stockholder of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by the Stockholder, the consummation by the Stockholder of the
transactions contemplated hereby or compliance by the Stockholder with any of
the provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to the Stockholder, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of kind to which the Stockholder is a party or by which
the Stockholder or any of its properties or assets may be bound, or (C) violate
any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to the Stockholder or any of its properties or assets.
(d) NO ENCUMBRANCES. Except as permitted by this Agreement,
the Existing
4
<PAGE> 5
Shares and the certificates representing the Existing Shares are now, and at all
times during the term hereof will be, held by the Stockholder, or by a nominee
or custodian for the benefit of the Stockholder, free and clear of all liens,
claims, charges or encumbrances ("Encumbrances"), proxies, voting trusts or
agreements, understandings or arrangements or any other rights whatsoever,
except for any such Encumbrances or proxies arising hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder.
(f) RELIANCE BY BUYER AND MERGERCO. The Stockholder
understands and acknowledges that Buyer and MergerCo. are entering into the
Merger Agreement and commencing the Offer in reliance upon the Stockholder's
execution and delivery of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF BUYER AND THE MERGERCO. Each of Buyer and
MergerCo. hereby represents and warrants to the Stockholders as follows:
(a) POWER; BINDING AGREEMENT. Buyer and MergerCo. each has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by each of Buyer and MergerCo. will not violate any other agreement to which
either of them is a party. This Agreement has been duly and validly executed and
delivered by each of Buyer and MergerCo. and constitutes a valid and binding
agreement of each of Buyer and the Purchaser, enforceable against each of Buyer
and MergerCo. in accordance with its terms.
(b) NO CONFLICTS. Except for filings under the HSR Act and the
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any governmental entity is necessary for the execution of this
Agreement by each of Buyer and MergerCo. and the consummation by each of Buyer
and MergerCo. of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by each of Buyer and MergerCo., the
consummation by each of Buyer and MergerCo. of the transactions contemplated
hereby or compliance by each of Buyer and MergerCo. with any of the provisions
hereof shall (A) conflict with or result in any breach of any organizational
documents applicable to either of Buyer or MergerCo., (B) result in a violation
or breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which either of Buyer or MergerCo. is a party or by
which either of Buyer or MergerCo. or any of their properties or assets may be
bound, or (C) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to either of Buyer or MergerCo. or any of
their properties or assets.
6. FURTHER ASSURANCES. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective the agreements set forth in
Sections 2 and 3 of this Agreement.
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<PAGE> 6
7. STOP TRANSFER. No Stockholder shall request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Shares, unless such transfer is made in compliance with
this Agreement. In the event of a stock dividend or distribution, or any change
in the Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall refer to
and include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged.
8. TERMINATION. The covenants, agreements and proxy contained herein with
respect to the Shares, and all other obligations of the Stockholders hereunder,
shall terminate upon the termination of the Merger Agreement in accordance with
its terms.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of the Shares shall pass, whether
by operation of law or otherwise, including, without limitation, any
Stockholder's administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(c) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto; provided that Buyer or MergerCo. may assign, in its sole
discretion, its rights and obligations hereunder to any direct or indirect
wholly owned subsidiary of Buyer, but no such assignment shall relieve Buyer or
MergerCo. of its obligations hereunder if such assignee does not perform such
obligations.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy (with a
confirmation copy sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to the Stockholder, to the address set forth on Schedule I hereto,
with a copy to:
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
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<PAGE> 7
Boston, MA 02110
Attn: James Westra
Telephone No.: (617) 951-6600
Telecopy No.: (617) 951-1295
If to Buyer or MergerCo.,
Invacare Corporation
One Invacare Way
Elyria, Ohio 44035
Attention: Thomas R. Miklich
Chief Financial Officer, Secretary and Treasurer
Telephone No.: (440) 329-6111
Telecopy No.: (440) 366-9008
with a copy to:
Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
Attn: Dale C. LaPorte
Telephone No.: (216) 622-8200
Telecopy No.: (216) 241-0816
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore in the event of any such breach the aggrieved party shall be entitled
to the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any
right, power or
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<PAGE> 8
remedy provided under this Agreement or otherwise available in respect hereof at
law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of conflicts of law thereof; PROVIDED,
however, that the laws of the respective jurisdictions of incorporation of each
of the parties shall govern the relative rights, obligations, powers, duties and
other internal affairs of such party and its board of directors.
(l) WAIVER OF JURY TRIAL. Each party hereto hereby waives any
right to a trial by jury in connection with any action, suit or proceeding
brought in connection with this Agreement.
(m) DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
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<PAGE> 9
IN WITNESS WHEREOF, Buyer and MergerCo. have caused this Agreement to
be duly executed as of the day and year first above written.
BUYER: STOCKHOLDERS:
INVACARE CORPORATION /s/ Herbert Gray
By: /s/ Thomas R. Miklich ----------------------------------
-------------------------------- Herbert Gray
Name: Thomas R. Miklich
----------------------------
Title: CFO /s/ Donald Benovitz
---------------------------- ----------------------------------
Donald Benovitz
SUMMIT VENTURES III, L.P.
MERGERCO.: By: Summit Partners III, L.P.,
Its General Partner
INVA ACQUISITION CORP. By: Stamps, Woodsum & Co. III,
By: /s/ Thomas R. Miklich Its General Partner
-------------------------------
Name: Thomas R. Miklich By: /s/ Martin J. Mannion
---------------------------- ------------------------------
Title: Director General Partner
----------------------------
SUMMIT INVESTORS II, L.P.
By: /s/ Martin J. Mannion
------------------------------
Authorized Signatory
SUMMIT SUBORDINATED DEBT
FUND, L.P.
By: Summit Partners SD, L.P.,
Its General Partner
By: Stamps, Woodsum & Co. III,
Its General Partner
By:/s/ Martin J. Mannion
-------------------------------
General Partner
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SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF SHARES BENEFICIALLY OWNED
-----------------------------------
ADDRESS
STOCKHOLDER OPTIONS DIRECT OWNERSHIP
- ----------- ------- ----------------
<S> <C> <C> <C>
Herbert Gray 300 Boylston St. Apt 5-10 620,000 (as individual) 186,000
Boston, MA 02116 33,634 (as trustee)
Donald Benovitz One Everett Terrace 245,366 (as individual) 124,000
South Natick, MA 01760 33,634 (as trustee)
Summit Ventures III, L.P. 600 Atlantic Ave. Suite 2800 3,357,509
Boston, MA 02110-2227
Summit Investors II, L.P. 600 Atlantic Ave. Suite 2800 78,696
Boston, MA 02110-2227
Summit Subordinated 600 Atlantic Ave. Suite 2800 498,626
Debt Fund, L.P. Boston, MA 02110-2227
</TABLE>
10
