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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________
SCHEDULE 13E-3
(RULE 13e-100)
TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES
EXCHANGE ACT OF 1934 AND RULE 13E-3 THEREUNDER
RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Amendment No. ____________)
Veterinary Centers of America, Inc.
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(Name of Issuer)
Veterinary Centers of America, Inc.
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(Name of Person(s) Filing Statement)
Common Stock, Par Value $0.001 per share
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(Title of Class of Securities)
925514101
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(CUSIP Number of Class of Securities)
<TABLE>
<S> <C>
Robert L. Antin Julie Kaufer, Esq.
Chief Executive Officer Troop Steuber Pasich Reddick & Tobey, LLP
12401 West Olympic Boulevard 2029 Century Park East, 24th Floor
Los Angeles, CA 90064 Los Angeles, CA 90067
(310) 584-6500 (310) 728-3000
</TABLE>
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(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Statement)
This statement is filed in connection with (check the appropriate box):
a. [X] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities
Act of 1933.
b. [ ] The filing of a registration statement under the Securities Act of
1933.
c. [ ] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: [X]
Check the following box if the filing is a final amendment reporting the
results of the transaction: [ ]
Calculation of Filing Fee
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Transaction Amount of Filing Fee
Valuation*
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$306,040,995 $61,208
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*Set forth the amount on which the filing fee is calculated and state how
it was determined.
[X] Check the box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
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<CAPTION>
<S> <C>
Amount Previously Paid: $61,208 Filing Party: Veterinary Centers of America, Inc.
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Form or Registration No.: Schedule 14(a) Date Filed: May 30, 2000
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</TABLE>
<PAGE>
INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13e-3 (the "Schedule 13e-
3") is being filed by Veterinary Centers of America, Inc., a Delaware
corporation ("VCA"), the issuer of the equity securities which are the subject
of a Rule 13e-3 transaction, in connection with a merger of Vicar Recap, Inc., a
Delaware corporation and wholly owned by Green Equity Investors III, L.P., with
and into VCA, with VCA as the surviving corporation. Pursuant to the Agreement
and Plan of Merger, dated as of March 30, 2000, immediately prior to the Merger,
certain members of VCA management will exchange approximately 266,666 shares of
VCA common stock (or other consideration of equivalent value) for a
corresponding amount of Vicar Recap common stock. At the effective time of the
Merger, all issued and outstanding shares of common stock of VCA, other then
shares held by dissenting shareholders, Green Equity, Vicar Recap and in VCA's
treasury, will be cancelled and converted into the right to receive, a cash
payment per share, without interest, of $15.00. As a result of the Merger, and
after giving effect to the issuance of employee incentive options and warrants
to be issued to GS Mezzanine Partners II, L.P., Green Equity and certain VCA
employee stockholders will own 71.75% and 22.5%, respectively, on a fully
diluted basis, of VCA.
Concurrently, with the filing of this Schedule 13e-3, VCA is filing a
preliminary proxy statement (the "Proxy Statement"), pursuant to which the
stockholders of VCA will be given notice of the Merger. The information in the
Proxy Statement, including all annexes thereto, is expressly incorporated by
reference herein in its entirety and responses to each item herein are qualified
in their entirety by the provisions of the Proxy Statement. Capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in
the Proxy Statement.
ITEM 1. SUMMARY TERM SHEET.
The information contained in the sections entitled "QUESTIONS
AND ANSWERS ABOUT THE MERGER" and "SUMMARY" of the Proxy
Statement are incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) Name and Address. The information contained in the section
entitled "SUMMARY - The Companies" of the Proxy Statement is
incorporated herein by reference.
(b) Securities. The information contained in the section entitled
"THE SPECIAL MEETING - Record Date and Voting" of the Proxy
Statement is incorporated herein by reference.
(c) Trading Market and Prices. The information contained in the
section entitled "PRICE RANGE OF COMMON STOCK" of the Proxy
Statement is incorporated herein by reference.
(d) Dividends. The information contained in the section entitled
"DIVIDENDS" of the Proxy Statement is incorporated herein by
reference.
(e) Prior Public Offerings. None.
(f) Prior Stock Purchases. The information contained in the section
entitled "COMMON STOCK PURCHASE INFORMATION" of the Proxy
Statement is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF THE FILING PERSON.
(a), (c) Name and Address. Business and Background of Natural Persons.
The information contained in the sections entitled "PRINCIPAL
STOCKHOLDERS" and "DIRECTORS AND EXECUTIVE OFFICERS OF VCA" of
the Proxy Statement are incorporated herein by reference.
During the last five years, to the best knowledge of VCA, none
of any persons listed in "DIRECTORS AND EXECUTIVE OFFICERS OF
VCA" has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or has been 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,
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decree or final order enjoining
further violations of, or prohibiting activities subject to,
federal or state securities laws or finding any violation of
such laws.
(b) Business and Background of Entities. The information contained
in the section entitled "SUMMARY - The Companies" of the Proxy
Statement is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTIONS.
(a) (1) Not applicable.
(a) (2) (i) The information contained in the sections entitled
"QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY" and
"THE MERGER AGREEMENT - Structure and Timing" of the
Proxy Statement are incorporated herein by reference.
(ii) The information contained in the sections entitled
"QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY" and
"THE MERGER AGREEMENT - Consideration to be Received in
the Merger" of the Proxy Statement are incorporated
herein by reference.
(iii) The information contained in the sections entitled
"SPECIAL FACTORS - Background of the Merger" and "-
Purpose and Structure of the Merger" of the Proxy
Statement are incorporated herein by reference.
(iv) The information contained in the section entitled "THE
SPECIAL MEETING - Record Date and Voting" of the Proxy
Statement is incorporated herein by reference.
(v) The information contained in the sections entitled
"SPECIAL FACTORS - Effects of the Merger" and "-
Interests of VCA Directors and Officers in the Merger"
of the Proxy Statement are incorporated herein by
reference.
(vi) The information contained in the section entitled
"SPECIAL FACTORS - Accounting Treatment of the Merger"
of the Proxy Statement is incorporated herein by
reference.
(vii) The information contained in the section entitled
"SPECIAL FACTORS - Material Federal Income Tax
Consequences of the Merger" of the Proxy Statement is
incorporated herein by reference.
(c) The information contained in the section entitled "SPECIAL
FACTORS - Interests of VCA Directors and Officers in the
Merger" of the Proxy Statement is incorporated herein by
reference.
(d) The information contained in the section entitled "SPECIAL
FACTORS - Appraisal Rights" of the Proxy Statement is
incorporated herein by reference.
(e) VCA has made no provisions in connection with the Merger to
grant unaffiliated security holders access to the corporate
files of VCA or to obtain counsel or appraisal services at the
expense of VCA.
(f) Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) The information contained in the sections entitled "SPECIAL
FACTORS - Interests of VCA Directors and Officers in the
Merger," "- Background of the Merger" and "- Purpose and
Structure of the Merger" of the Proxy Statement are
incorporated herein by reference.
(b)-(c) The information contained in the sections entitled "SPECIAL
FACTORS - Background of the Merger" and "- Purpose and
Structure of the Merger" of the Proxy Statement are
incorporated herein by reference.
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(d) The information contained in the sections entitled "SPECIAL
FACTORS - Interests of VCA Directors and Officers in the
Merger," "- Background of the Merger" and "- Purpose and
Structure of the Merger" of the Proxy Statement are
incorporated herein by reference.
(e) The information contained in the sections entitled "SPECIAL
FACTORS - Interests of VCA Directors and Officers in the
Merger" and "THE MERGER AGREEMENT" of the Proxy Statement are
incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(b) The information contained in the sections entitled "SUMMARY"
and "SPECIAL FACTORS - Effects of the Merger" of the Proxy
Statement are incorporated herein by reference.
(c) The information contained in the sections entitled "SUMMARY,"
"SPECIAL FACTORS - Effects of the Merger," "- Interests of VCA
Directors and Officers in the Merger" and "DIVIDENDS" of the
Proxy Statement are incorporated herein by reference.
ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
(a), (c) The information contained in the sections entitled "SPECIAL
FACTORS - Background of the Merger," "- Purpose and Structure
of the Merger" and "- Recommendations of the Special Committee
and the Board of Directors; Fairness of the Merger" of the
Proxy Statement are incorporated herein by reference.
(b) The information contained in the sections entitled "SPECIAL
FACTORS - Risk that the Merger will not be Completed" and "-
Background of the Merger" of the Proxy Statement are
incorporated herein by reference.
(d) The information contained in the sections entitled "QUESTIONS
AND ANSWERS ABOUT THE MERGER," "SUMMARY," "SPECIAL FACTORS -
Effects of the Merger" and "- Material Federal Income Tax
Consequences of the Merger" of the Proxy Statement are
incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a), (b) The information contained in the sections entitled "QUESTIONS
AND ANSWERS ABOUT THE MERGER," "SUMMARY," "THE SPECIAL
MEETING - Record Date and Voting, "SPECIAL FACTORS - Background
of the Merger," "- Recommendations of the Special Committee and
the Board of Directors; Fairness of the Merger," "- Opinion of
Houlihan Lokey Howard & Zukin Capital" and "- Opinion of
Jefferies & Company, Inc." of the Proxy Statement and Annex B,
"Opinion of Jefferies & Company, Inc.," and Annex C, "Opinion
of Houlihan Lokey Howard & Zukin Capital," of the Proxy
Statement are incorporated herein by reference.
(c) The information contained in the section entitled "THE SPECIAL
MEETING - Record Date and Voting" of the Proxy Statement is
incorporated herein by reference.
(d) The information contained in the sections entitled "SPECIAL
FACTORS - Background of the Merger," and "- Recommendations of
the Special Committee and the Board of Directors; Fairness of
the Merger" of the Proxy Statement are incorporated herein by
reference.
(f) Not applicable.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
(a)-(c) The information contained in the sections entitled "SPECIAL
FACTORS - Background of the Merger," "- Opinion of Houlihan
Lokey Howard & Zukin Capital," "- Opinion of Jefferies &
Company, Inc." and "- Recommendations of the Special Committee
and the Board of Directors; Fairness of the Merger" of the
Proxy Statement and Annex B, "Opinion of Jefferies & Company,
Inc." and Annex C, "Opinion of Houlihan Lokey Howard & Zukin
<PAGE>
Capital," of the Proxy Statement are incorporated herein by
reference.
ITEM 10. SOURCES AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
(a), (b), (d) The information contained in the section entitled "SPECIAL
FACTORS - Financing the Merger" of the Proxy Statement is
incorporated herein by reference. VCA has no alternative
financing arrangements or alternative financing plans if
the primary financing falls through.
(c) The information contained in the section entitled
"EXPENSES" of the Proxy Statement is incorporated herein by
reference.
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) The information contained in the section entitled
"PRINCIPAL STOCKHOLDERS" of the Proxy Statement is
incorporated herein by reference.
(b) Not applicable.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
(d) The information contained in the sections entitled "THE
SPECIAL MEETING - Record Date and Voting," "SUMMARY" and
"SPECIAL FACTORS - Interests of VCA Directors and Officers
in the Merger" of the Proxy Statement are incorporated
herein by reference.
(e) The information contained in the sections entitled
"SUMMARY" and "SPECIAL FACTORS - Recommendations of the
Special Committee and the Board of Directors; Fairness of
the Merger" of the Proxy Statement are incorporated herein
by reference.
ITEM 13. FINANCIAL STATEMENTS.
(a) The information contained in the section entitled "SUMMARY
SELECTED HISTORICAL FINANCIAL DATA" to the Proxy Statement
is incorporated herein by reference.
(b) Not applicable.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(a), (b) The information contained in the sections entitled "SPECIAL
FACTORS - Background of the Merger," "EXPENSES" and "THE
SPECIAL MEETING - Voting, Revocation and Solicitation of
Proxies" of the Proxy Statement are incorporated herein by
reference.
ITEM 15. ADDITIONAL INFORMATION.
(b) The information contained in the Proxy Statement, including
the annexes thereto, is incorporated herein by reference.
ITEM 16. EXHIBITS.
(a) Preliminary Proxy Statement on Schedule 14A filed with the
Securities and Exchange Commission on May 30, 2000
(incorporated herein by reference to the Proxy Statement).
(b)(1) Commitment Letter, dated March 30, 2000, between Goldman
Sachs Credit Partners, L.P. and Green Equity Investors
III, L.P. (to be filed by amendment).
(b)(2) Commitment Letter, dated March 30, 2000, between GS
Mezzanine Partners II, L.P. and Green Equity Investors III,
L.P. (to be filed by amendment).
(c)(1) Opinion of Jefferies & Company, Inc. (incorporated herein
by reference to Annex B of the Proxy Statement).
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(c)(2) Opinion of Houlihan Lokey Howard & Zukin Capital
(incorporated herein by reference to Annex C of the Proxy
Statement).
(d)(1) Agreement and Plan of Merger, dated March 30, 2000, among
Veterinary Centers of America, Inc., Vicar Recap, Inc.
and Vicar Operating, Inc. (incorporated herein by
reference to Annex A of the Proxy Statement).
(d)(2) Voting Agreement, dated March 30, 2000, between Vicar Recap
and Robert L. Antin (incorporated herein by reference to
Annex D of the Proxy Statement).
(d)(3) Exchange and Subscription Agreement, dated March 30, 2000,
between Vicar Recap and Robert L. Antin (incorporated
herein by reference to Annex E of the Proxy Statement).
(d)(4) Stock Purchase Agreement, dated March 30, 2000, between
Green Equity Investors III, L.P. and Robert L. Antin.
(f) Section 262 of the General Corporation Law of the State
Delaware (incorporated herein by reference to Annex F to
the Proxy Statement).
(g) Not applicable.
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SIGNATURE
After due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: May 26, 2000 Veterinary Centers of America, Inc.
By: /s/ Tomas W. Fuller
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Name: Tomas W. Fuller
Title: Vice President, Chief Financial
Officer
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Exhibit List
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<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
16 (a) Preliminary Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on May 30, 2000
(incorporated herein by reference to the Proxy Statement).
16 (b)(1) Commitment Letter, dated March 30, 2000, between Goldman Sachs Credit Partners, L.P. and Green Equity Investors
III, L.P. (to be filed by amendment).
16 (b)(2) Commitment Letter, dated March 30, 2000, between GS Mezzanine Partners II, L.P. and Green Equity Investors III,
L.P. (to be filed by amendment).
16 (c)(1) Opinion of Jefferies & Company, Inc. (incorporated herein by reference to Annex B of the Proxy Statement).
16 (c)(2) Opinion of Houlihan Lokey Howard & Zukin Capital (incorporated herein by reference to Annex C of the Proxy
Statement).
16 (d)(1) Agreement and Plan of Merger, dated March 30, 2000, among Veterinary Centers of America, Inc., Vicar Recap, Inc.
and Vicar Operating, Inc. (incorporated herein by reference to Annex A of the Proxy Statement).
16 (d)(2) Voting Agreement, dated March 30, 2000, between Vicar Recap and Robert L. Antin (incorporated herein by reference
to Annex D of the Proxy Statement).
16 (d)(3) Exchange and Subscription Agreement, dated March 30, 2000, between Vicar Recap and Robert L. Antin (incorporated
herein by reference to Annex E of the Proxy Statement).
16 (d)(4) Stock Purchase Agreement, dated March 30, 2000, between Green Equity Investors III, L.P. and Robert L. Antin.
16 (f) Section 262 of the Delaware Corporation Law of the State Delaware (incorporated herein by reference to Annex F
to the Proxy Statement).
</TABLE>
<PAGE>
Exhibit 99d(4)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of March 30,
2000, by and between Robert L. Antin, an individual (the "Seller"), and Green
Equity Investors III, L.P., a Delaware limited partnership (the "Purchaser").
WHEREAS, Veterinary Centers of America, Inc., a Delaware corporation (the
"Company"), Vicar Operating, Inc., a Delaware corporation and wholly owned
subsidiary of Company ("Operating Company"), and Vicar Recap, Inc., a Delaware
corporation ("Recap"), are entering into an Agreement and Plan of Merger, dated
as of March 30, 2000, (as may be modified or amended from time to time, the
"Merger Agreement"), which provides, among other things, that prior to the
Merger the Company will contribute all of its assets, properties, business
operations, and liabilities to Operating Company, followed by the merger of
Recap with and into Company with Company as the surviving corporation (the
"Merger");
WHEREAS, subject to the consummation of the Merger, the Seller desires to
sell, and the Purchaser desires to purchase, all of the shares (not to exceed
919,259 shares) (the "Shares") of the common stock, $.001 par value per share,
of the Company (the "Common Stock") beneficially held by Seller at the time of
the Closing hereunder (other than shares which Seller is obligated to transfer
to Recap pursuant to the terms and conditions set forth in that certain Exchange
and Subscription Agreement dated as of the date hereof) for the consideration
and on the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements contained herein, the Purchaser and the Seller hereby agree as
follows:
1. Purchase of the Shares.
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1.1 The Purchase. Upon the terms and subject to the conditions set
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forth herein, the Purchaser agrees to purchase from the Seller, and the Seller
agrees to sell to the Purchaser (the "Purchase"), all of the Seller's right,
title and interest in the Shares at a price of $15.00 per share (the "Purchase
Price").
1.2 The Closing. The closing of the Purchase of the Shares and the
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other transactions contemplated by this Agreement (the "Closing") shall take
place immediately prior to the closing of the Merger. At the Closing of the
Purchase, the Seller shall deliver to the Purchaser certificates evidencing all
of the Shares together with stock powers separate from certificate with
signatures guaranteed sufficient to cause the Shares to be transferred to the
name of the Purchaser, and the Purchaser shall deliver to the Seller immediately
available funds as payment by wire transfer of the Purchase Price for such
Shares to an account designated by the Seller. The date on which the Closing
actually occurs is hereinafter referred to as the "Closing Date."
2. Representations, Warranties and Covenants of Seller. The Seller
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represents, warrants and covenants to the Purchaser as follows:
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2.1 Competency. The Seller is an individual with principal residence
----------
in the State of California. The Seller is of legal age, competent to enter into
a contractual obligation, and a citizen of the United States of America.
2.2 Title; No Encumbrances. The Seller has and on the Closing Date:
----------------------
(a) is the exclusive owner of the Shares and is entitled to all rights evidenced
thereby; and (b) has the full right, power and authority to sell, assign,
transfer and deliver such Shares hereunder, free and clear of any and all
claims, liens, pledges, charges, restrictions, encumbrances, security interests
or other rights or interests of any person whatsoever. Upon the transfer of the
Shares to the Purchaser pursuant to this Agreement, the Purchaser will receive
valid, good and marketable title to the Shares, free and clear of any and all
claims, liens, pledges, charges, restrictions, encumbrances, security interests
or other rights or interests of any person whatsoever.
2.3 Successors and Assigns. Seller acknowledges and represents that
----------------------
all authority conferred or agreed to be conferred in this Agreement shall be
binding upon the successors, assigns, heirs, executors, administrators and legal
representatives of the Seller and this Agreement shall not be affected by, and
shall survive, the death or incapacity of the Seller.
2.4 No Conflict. The execution and delivery of this Agreement by the
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Seller do not, and the consummation and performance by the Seller of this
Agreement and the transactions contemplated hereby will not, (i) conflict with
or violate any foreign, federal, state or local law, statute, treaty, ordinance,
rule, regulation, order, writ, injunction, decree or judgment applicable to the
Seller or by which any of his properties or assets is bound or affected, or (ii)
require any consent, approval, authorization or permit of, or filing with or
notification to, (a) any governmental or regulatory authority, either domestic
or foreign ("Governmental Entities"), or (b) any third party.
2.5 No Litigation. There is no claim, action, suit, litigation,
-------------
proceeding, or arbitration or investigation of any kind, at law or in equity,
(including actions or proceedings seeking injunctive relief) pending or, to the
knowledge of the Seller, threatened against, affecting or involving the Seller
which seeks to prevent or challenge the transactions contemplated hereby, or
which seeks to challenge the record and/or beneficial ownership of the Shares by
the Seller. The Seller is not subject to any continuing order of, consent
decree, settlement agreement or other similar written agreement with, or
continuing investigation by, any Governmental Entity, or any judgment, order,
writ, injunction, rule, decree or award of any Governmental Entity or arbitrator
(collectively, "Orders") including, without limitation, cease-and-desist or
other orders, except for Orders that do not prevent or challenge the
transactions contemplated hereby and do not challenge the record and/or
beneficial ownership of the Shares by the Seller.
2.6 No Broker. No broker, finder or investment banker is entitled to
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any brokerage, finder's or other fee or commission in connection with the
Purchase based upon arrangements made by or on behalf of the Seller.
3. Conditions to the Obligations of the Parties.
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3.1 Merger Agreement Conditions. The conditions to the Merger
---------------------------
Agreement shall have been satisfied or waived and the parties to the Merger
Agreement shall have represented that they intend to consummate the Merger upon
consummation of the Purchase and Exchange.
3.2 Legal Proceedings. No Governmental Entity shall have notified
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either party to this Agreement that it intends to commence proceedings to
restrain or prohibit the transactions contemplated hereby or force rescission,
unless such Governmental Entity shall have withdrawn such notice and abandoned
any such proceedings prior to the time which otherwise would have been the
Closing Date.
3.3 Representations and Warranties. All representations and
------------------------------
warranties in this Agreement by the Seller shall be true and correct in all
material respects on the date when made and on and as of the Closing Date with
the same effect as if made on and as of the Closing Date.
3.4 Covenants and Agreements. The Seller shall have performed or
------------------------
complied in all material respects with all covenants and conditions contained in
this Agreement or in any agreement, certificate or instrument to be executed
pursuant hereto required to be performed or complied with at or prior to the
Closing.
4. Miscellaneous.
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4.1 Additional Agreements.
---------------------
(a) Subject to the terms and conditions of this Agreement, each
of the parties hereto agrees to take, or cause to be taken, all action and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws or regulations to consummate and make effective all of the
transactions contemplated by this Agreement. In case at any time after the
Closing of the transactions contemplated by this Agreement any further action is
necessary to carry out the purposes of this Agreement, to vest the Purchaser
with full title to all of the Shares, or to transfer record and beneficial
ownership of the Shares to the Purchaser and to have a certificate representing
the Shares issued in the name of the Purchaser, the Seller shall take all such
necessary action as may be requested by the Purchaser.
(b) In the event that after the Closing, the Merger fails to be
consummated for any reason whatsoever and the Merger Agreement terminated, the
parties hereto agree that concurrently with the termination of the Merger
Agreement, regardless of the price at which the Common Stock of the Company is
quoted to be at that time on NASDAQ or any other national securities exchange on
which the Common Stock of the Company is listed, the Purchaser shall deliver to
the Seller certificates evidencing all of the Shares together with stock powers
separate from certificate with signatures guaranteed sufficient to cause the
Shares to be transferred to the name of the Seller, and the Seller shall deliver
to the Purchaser immediately available funds as payment by wire transfer of the
Purchase Price to an account designated by the Purchaser.
4.2 Successors and Assigns. This Agreement shall be binding upon,
----------------------
inure to the benefit of, and be enforceable by, the parties hereto and their
respective
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<PAGE>
successors and permitted assigns; provided, however, that neither this Agreement
nor any right or obligation hereunder may be assigned by either party without
the prior written consent of the other party.
4.3 Governing Law. This Agreement has been negotiated and entered
-------------
into in the State of Delaware and all questions with respect to this Agreement
and the rights and liabilities of the parties shall be governed by the laws of
the State of California, regardless of the choice of law provisions of
California or of any other jurisdiction.
4.4 Headings. The article and section headings in this Agreement
--------
are inserted only as a matter of convenience, and in no way define, limit,
extend or interpret the scope of this Agreement or of any particular article or
section.
4.5 Counterparts. This Agreement may be executed simultaneously in
------------
two counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
4.6 Complete Agreement. This Agreement and any documents referred to
------------------
herein or executed contemporaneously herewith constitute the parties' entire
agreement with respect to the subject matter hereof and supersede all
agreements, representations, warranties, statements, promises and
understandings.
4.7 Waiver. No waiver of any breach or default hereunder shall be
------
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
4.8 Severability. If any provision of this Agreement shall be
------------
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable provision
were not contained herein.
4.9 Survival of Representations and Warranties and Agreements.
---------------------------------------------------------
All of the representations, warranties, covenants and agreements in this
Agreement and in any other instrument or document delivered in connection
herewith or in any instrument delivered pursuant to this Agreement shall be true
on the date hereof and on the Closing Date and shall survive the Closing.
4.10 Legal Fees. If any action is brought to enforce or interpret the
----------
terms, conditions or provisions of this Agreement, the prevailing party in such
action shall be entitled to its reasonable attorneys' fees, costs and necessary
disbursements incurred in connection therewith, in addition to any other relief
to which such party may be entitled.
4.11 Specific Performance. Each of the parties hereto acknowledges
--------------------
and agrees that the other party hereto would be irreparably damaged in the event
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. Accordingly, each of the
parties hereto agrees that each shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this agreement and the terms and provisions hereof in
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any action instituted in any court of the United States or any state thereof
having subject matter jurisdiction, in addition to any other remedy to which
such party may be entitled, at law or in equity.
[NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth hereinabove.
PURCHASER
GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC
Its general partner
By: /s/ John Danhakl
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Name: John Danhakl
Title: Manager
SELLER
/s/ Robert L. Antin
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Robert L. Antin
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