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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 1, 1997
Transworld Home HealthCare, Inc.
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(Exact name of Registrant as specified in its charter)
New York
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(State or other jurisdiction of incorporation)
1-11570 13-3098275
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(Commission File Number) (I.R.S. Employer Identification No.)
75 Terminal Avenue, Clark, New Jersey 07066
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (908) 340-1144
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(Former name or former address, if changed since last report.)
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ITEM 5. OTHER EVENTS
Transworld Home HealthCare, Inc. (the "Company") and Hyperion TW Fund
L.P. (the "Fund"), an affiliate of Hyperion Partners II L.P. ("HPII")
have entered into a Stock Purchase Agreement pursuant to which the Fund
will purchase at closing 4,116,456 shares of the Company's common stock
(the "Common Stock") at a purchase price of $9.875 per share. Closing
of the transaction is subject to, among other things, certain approvals
from the Company's lenders under its senior secured revolving credit
facility. At closing, the Company and the Fund will enter into a
registration rights agreement containing substantially the same terms
and conditions as those contained in the existing registration rights
agreement with HPII.
In addition, the Company and HPII have entered into a Stock Purchase
Agreement pursuant to which HPII will purchase at closing 1,234,176
shares of the Common Stock at a purchase price of $9.875 per share in
exchange for the assignment to the Company of certain trade payables of
Health Management, Inc. previously acquired by HPII. Closing of the
transaction is subject to, among other things, certain approvals from
the Company's lenders under its senior secured revolving credit
facility and approval of the Company's shareholders. The shares of
Common Stock issued pursuant to this agreement are subject to the
existing registration rights agreement between the Company and HPII.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Exhibits.
1. Stock Purchase Agreement between the Company and HPII
dated as of March 26, 1997.
2. Stock Purchase Agreement between the Company and the
Fund dated as of March 26, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Transworld Home HealthCare, Inc.
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(Registrant)
Date: April 16, 1997 By: /s/ Wayne A. Palladino
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Wayne A. Palladino
Senior Vice President and
Chief Financial Officer
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EXHIBIT 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of the 26th
day of March, 1997 by and between Transworld Home HealthCare, Inc., a New York
corporation (the "Company"), and Hyperion Partners II L.P., a Delaware limited
partnership (the "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Shares.
1.1 Sale and Issuance of Shares. Subject to the terms and
conditions of this Agreement, at the Closing (as hereinafter defined),
the Investor agrees to purchase and the Company agrees to sell and
issue to the Investor 1,234,176 shares (the "Shares") of common stock,
par value $.01 per share, of the Company (the "Common Stock"). As full
payment for the Shares, the Investor agrees to assign and transfer to
the Company, without recourse and without representation or warranty
(except as expressly set forth herein), the following:
(a) $12,396,948 of face amount of accounts receivable
originally owed by Health Management, Inc. ("HMI") to FoxMeyer
Corporation and its subsidiaries and incurred on or before
November 13, 1996, and assigned to the Investor by California
Golden State Finance Company pursuant to an Agreement of
Transfer of Receivables dated November 19, 1996, a copy of
which has been provided to the Company, together with any
rights of the Investor under such Agreement that are
assignable (the "FoxMeyer Receivable"); and
(b) $2,800,000 of face amount of accounts receivable
originally owed by HMI to Bindley Western Industries, Inc.
("Bindley") and assigned to the Investor by Bindley pursuant
to a Purchase and Sale Agreement dated December 20, 1996, a
copy of which has been provided to the Company, together with
any rights of the Investor under such Agreement that are
assignable (the "Bindley Receivable" and, together with the
FoxMeyer Receivable, the "HMI Receivables").
1.2 Closing. The purchase and sale of the Shares shall take
place at the offices of Proskauer Rose Goetz & Mendelsohn LLP, 1585
Broadway, New York, New York 10036, within 15 days following the
satisfaction of the conditions set forth in Sections 4 and 5, or at
such other time and place as the Company and the Investor mutually
agree upon orally or in writing (which time and place are designated as
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the "Closing"). At the Closing, in addition to satisfying the other
conditions set forth herein, the Company shall deliver to the Investor
one or more certificates representing the Shares, against delivery to
the Company by the Investor of a duly executed instrument assigning the
HMI Receivables to the Company.
2. Representations and Warranties of the Company. The
Company hereby represents and warrants to, and agrees with, the
Investor that:
2.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York. The Company has all requisite
power and authority to own, lease, license and use its properties and
assets and to carry on its business as now conducted and as proposed to
be conducted. The Company has all requisite power and authority to
enter into and perform this Agreement and the transactions contemplated
hereby.
2.2 Authorization. All corporate action on the part of the
Company and its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of the Company hereunder and the
authorization, sale, issuance and delivery of the Shares has been
taken, except for the approval of the shareholders of the Company which
is required by Rule 4460(i)(1)(C)(i) of the National Association of
Securities Dealers, Inc. (the "NASD") for continued trading of the
Company's securities on the National Association of Securities Dealers
Automated Quotation/National Market System ("Shareholder Approval").
This Agreement constitutes the valid and legally binding obligation of
the Company, enforceable in accordance with its terms, except (i) as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as
enforceability may be limited by laws relating to the availability of
specific performance, injunctive relief or other equitable remedies.
2.3 Valid Issuance of Shares.
(a) The Shares, when issued, sold and delivered in accordance
with the terms hereof and for the consideration expressed herein, (i)
will be duly and validly issued and fully paid and nonassessable, (ii)
will be free of any pledges, liens, security interests, claims or other
encumbrances of any kind, (iii) will be issued in compliance with all
applicable federal and state securities laws, and (iv) will not be
issued in violation of any preemptive
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rights of shareholders. The Shares have been duly and
validly reserved for issuance.
(b) The outstanding shares of Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and were
issued in compliance with all applicable federal and state securities
laws.
2.4 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local governmental
authority on the part of the Company or any of its subsidiaries is
required in connection with the consummation of the transactions
contemplated by this Agreement except for (i) filing with the
Securities and Exchange Commission on Form 10-C; (ii) Shareholder
Approval; and (iii) such filings as have been made.
2.5 Compliance with Other Instruments. The execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in a violation of, or
be in conflict with, or constitute, with or without the passage of time
or the giving of notice or both, a default under, any provision of the
Company's certificate of incorporation, as amended, or bylaws, as
amended, or any judgment, order, writ or decree, or any contract,
agreement or instrument, or require any consent, waiver or approval
thereunder, or give rise to a right to terminate or accelerate the
performance required thereby, or constitute an event which results in
the creation of any lien, charge or encumbrance upon any asset of the
Company.
2.6 Registration Rights Agreement. The Shares are "Registrable
Securities" as that term is used in the Registration Rights Agreement
dated as of May 29, 1996 between the Company and the Investor (the
"Registration Rights Agreement"), and are entitled to all of the
benefits of the Registration Rights Agreement, except that the Investor
may not require the Company to effect the registration of the Shares
prior to the first anniversary of the date of this Agreement.
2.7 SEC Documents. The Company has provided the Investor with
copies of its Annual Report on Form 10-K for the fiscal year ended
October 31, 1996 and its Quarterly Report on Form 10-Q for the quarter
ended January 31, 1997 (collectively, the "SEC Documents"), each as
filed with the Securities and Exchange Commission. On the date of their
respective filings, such SEC Documents complied in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended, and none of such SEC Documents contained any untrue
statement of a material fact
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or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
2.8 Financial Statements. The Company has delivered to the
Investor its audited consolidated financial statements (consolidated
balance sheet and consolidated statements of operations, changes in
stockholders' equity and cash flows) at October 31, 1996 and for the
year then ended and its unaudited financial statements (consolidated
balance sheet and consolidated statement of operations and cash flows)
at January 31, 1997 and for the three-month period then ended
(collectively the "Financial Statements"). The Financial Statements are
complete and correct in all material respects and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated. The Financial
Statements accurately describe the financial condition and operating
results of the Company and its subsidiaries as of the dates, and for
the periods, indicated therein, subject, in the case of the unaudited
financial statements, to normal year-end audit adjustments which will
not in the aggregate be material.
2.9 No Material Adverse Changes. Except as disclosed in the
SEC Documents (and, to the extent the following representation relates
to HMI, except as previously disclosed to the Investor), since January
31, 1997, there has been no material adverse change in the assets,
properties, business, operations, condition (financial or otherwise) or
prospects of the Company and its subsidiaries and the Company has no
knowledge of any event which is likely to result in any such change. To
the extent the foregoing representation relates to HMI, it is being
made to the best knowledge of the Company.
2.10 Disclosure. The Company has fully provided the Investor
or its counsel with all the information which the Investor has
requested for deciding whether to purchase the Shares and all
information which the Company believes is reasonably necessary to
enable the Investor to make such decision. Neither this Agreement nor
any other statements or certificates made or delivered in connection
herewith contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements herein or
therein not misleading.
3. Representations and Warranties of the Investor. The
Investor hereby represents and warrants to the Company that:
3.1 Authorization. The Investor has all requisite
power and authority to enter into this Agreement. This
Agreement has been duly executed and delivered and
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constitutes the Investor's valid and legally binding obligation,
enforceable in accordance with its terms, except (i) as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement
of creditors' rights generally and (ii) as enforceability may be
limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
3.2 Purchase Entirely for Own Account. The Shares to be
purchased by the Investor will be acquired for investment for its own
account, and, except as contemplated by the Registration Rights
Agreement or otherwise in accordance with applicable securities laws,
not with a view to the resale or distribution of any part thereof and
without the present intention of selling, granting any participation
in, or otherwise distributing the same.
3.3 Investment Experience. The Investor can bear the
economic risk of its investment and has such knowledge and
experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment
in the Shares.
3.4 Restricted Securities. The Investor understands that the
Shares it is purchasing are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired
from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may be
resold without registration under the Securities Act of 1933, as
amended (the "Act"), only in certain limited circumstances. In this
connection, the Investor represents that it is familiar with Rule 144
of the Securities and Exchange Commission, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.5 Legends. The Investor understands that the
certificates evidencing the Shares will bear the following
legend:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SHARES
NOR ANY INTEREST THEREIN MAY BE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR
SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER."
The Shares shall not be required to bear such legend if an
opinion of counsel reasonably satisfactory to the Company is delivered
to the Company to the effect that neither the legend nor the
restrictions on transfer contained in this
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Agreement are required to insure compliance with the Act. Whenever,
pursuant to the preceding sentence, any certificate for any of the
Shares is no longer required to bear the foregoing legend, the Company
may, and if requested by the holder thereof, shall, issue to the
holder, at the Company's expense, a new certificate not bearing the
foregoing legend.
3.6 Ownership of HMI Receivables. The Investor owns and has
good title to the HMI Receivables, free and clear of all liens, claims,
security interests and encumbrances.
4. Conditions to the Investor's Obligations at Closing.
The obligations of the Investor under this Agreement are subject
to the fulfillment on or before the Closing of each of the
following conditions:
4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true in all
material respects on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of
the Closing.
4.2 Performance. The Company shall have performed and complied
with all agreements, covenants, obligations and conditions contained in
this Agreement in all material respects that are required to be
performed or complied with by it on or before the Closing.
4.3 Compliance Certificate. The President or Chief Executive
Officer of the Company shall deliver to the Investor at the Closing a
certificate certifying that the conditions specified in Sections 4.1,
4.2, 4.5, 4.8, 4.10 and 4.11 have been fulfilled.
4.4 Qualifications; Litigation. All authorizations, approvals
or permits, if any, of any governmental authority or regulatory body
that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained and
effective as of the Closing. No federal, state or local regulatory or
other governmental authority shall have taken any action or issued any
statement, written or oral, to the effect that the transactions
contemplated to be taken at the Closing may not be consummated as
currently structured, which action or statement, in the reasonable
judgment of the Investor, makes proceeding with the transactions
contemplated by this Agreement inadvisable. There shall not have been
instituted or threatened any legal proceeding relating to, or seeking
to prohibit or otherwise challenge, this Agreement or the consummation
of the transactions contemplated by this
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Agreement, or seeking to obtain substantial damages with respect
thereto.
4.5 Consents and Coordination. All third party consents and
waivers that are required in connection with the Closing under this
Agreement, and the consummation of the transactions contemplated
hereby, shall be duly obtained and effective as of the Closing.
4.6 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the
Closing and all documents incident thereto shall be satisfactory in
form and substance to the Investor, and the Investor shall have
received all such counterpart original and certified or other copies of
such documents as it may reasonably request.
4.7 Opinion of Company Counsel. Baer, Marks & Upham LLP,
counsel for the Company, shall have delivered an opinion which is
addressed to the Investor, dated as of the Closing and substantially in
the form delivered pursuant to the Unit Purchase Agreement dated as of
November 20, 1995 between the Company and the Investor (the "Unit
Purchase Agreement").
4.8 Banks Waiver and Consent. The Company shall have received,
in form and substance satisfactory to the Investor, (i) the waiver of
the lenders (the "Banks") party to the Credit Agreement dated as of
July 31, 1996, as amended (the "Credit Agreement") among the Company,
the Banks and Bankers Trust Company, as Agent, of any right the Banks
may have to the proceeds of the transactions contemplated hereby to
prepay outstanding indebtedness of the Company under the Credit
Agreement, (ii) the consent of the Banks to the issuance and sale of
the Shares and waiver of any events of default caused in connection
therewith, and (iii) such other consents and waivers of the Banks as
may be required in connection with the transactions hereunder.
4.9 Hart-Scott-Rodino. Any applicable waiting periods
in respect of the transactions contemplated by this
Agreement under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, shall have expired at or prior to
the Closing.
4.10 Shareholder Meeting. A special or annual meeting of
shareholders of the Company (the "Shareholder Meeting") shall have been
duly called and held at which meeting the shareholders of the Company
shall have had an opportunity to vote on a proposal to approve this
Agreement and the transactions contemplated hereby and at the
Shareholder Meeting, Shareholder Approval shall have obtained.
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4.11 Paribas Consent. The Company shall have received,
in form and substance satisfactory to the Investor, the
consent of Paribas Principal, Inc. to this Agreement and the
Registration Rights Agreement.
5. Conditions to the Company's Obligations at the Closing. The
obligations of the Company to the Investor under Section 1 of this Agreement are
subject to the fulfillment on or before the Closing of the following conditions,
any of which may be waived by the Company:
5.1 Representations and Warranties. The representations and
warranties of the Investor contained in Section 3 shall be true in all
material respects on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of
the date of the Closing.
5.2 Payment of Purchase Price. The Investor shall
have delivered to the Company a duly executed instrument
assigning the HMI Receivables to the Company.
5.3 Performance. The Investor shall have performed and
complied with all agreements, covenants, obligations and conditions
contained in this Agreement in all material respects that are required
to be performed or complied with by it on or before the Closing.
5.4 Qualifications; Litigation. All authorizations, approvals
or permits, if any, of any governmental authority or regulatory body
that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained and
effective as of the Closing. The Shareholder Approval shall be duly
obtained and effective as of the Closing. There shall not have been
instituted or threatened any legal proceeding relating to, or seeking
to prohibit or otherwise challenge, this Agreement or the consummation
of the transactions contemplated by this Agreement, or seeking to
obtain substantial damages with respect thereto.
5.5 Banks Waiver and Consent. The Company shall have received,
in form and substance satisfactory to the Company, (i) the waiver of
the Banks of any right they may have to the proceeds of the
transactions contemplated hereby to prepay outstanding indebtedness of
the Company under the Credit Agreement, (ii) the consent of the Banks
to the issuance and sale of the Shares and waiver of any events of
default caused in connection therewith, and (iii) such other consents
and waivers of the Banks as may be required in connection with the
transactions hereunder.
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5.6 Hart-Scott-Rodino. Any applicable waiting periods
in respect of the transactions contemplated by this
Agreement under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, shall have expired at or prior to
the Closing.
5.7 Consents and Coordination. All consents and waivers that
are required in connection with the Closing under this Agreement, and
the consummation of the transactions contemplated hereby, shall be duly
obtained and effective as of the Closing.
5.8 Paribas Consent. The Company shall have received,
in form and substance satisfactory to the Company, the
consent of Paribas Principal, Inc. to this Agreement and the
Registration Rights Agreement.
6. Covenants of the Company. The Company covenants and
agrees with the Investor as follows:
6.1 Advice of Changes. The Company will promptly advise the
Investor in writing of (i) any event occurring subsequent to the date
of this Agreement which would render any representation or warranty of
the Company contained in this Agreement, if made on or as of the date
of such event or the date of the Closing, untrue or inaccurate in any
material respect and (ii) any material adverse change in the business
of the Company and its subsidiaries taken as a whole.
6.2 Information. The Company will deliver to the Investor the
information specified in Section 6.9 of the Unit Purchase Agreement (as
in effect on the date hereof), unless the Investor at any time
specifically requests that such information not be delivered to it.
6.3 Observer and Director Rights. The Company will afford to
the Investor the observer, director and other rights specified in
Sections 6.11 and 8.1(a) of the Unit Purchase Agreement (as in effect
on the date hereof).
6.4 Listing Application. The Company shall prepare
and file with the NASD an Additional Listing Application, in
the form and within the time period prescribed by the NASD,
with respect to the listing of the Shares.
6.5 Publicity. Except as may be required by law, the Company
shall not use the name of, or make reference to, the Investor or any of
its affiliates in any press release or in any public manner without the
Investor's prior written consent.
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6.6 Certain Covenants Relating to Shareholder Approval
Requirement. (a) The Company will take all action necessary in
accordance with applicable law and its Certificate of Incorporation and
By-laws to convene a meeting of its shareholders as promptly as
practicable to consider and vote upon the approval of this Agreement
and the transactions contemplated hereby. The Board of Directors of the
Company shall recommend such approval to the shareholders of the
Company and the Company shall take all lawful actions to solicit such
approval. The Company represents and warrants to, and agrees with, the
Investor that the Investor may vote at the Shareholder Meeting in any
manner as it, in its sole discretion, may choose, pursuant to Section
7.2(d) of the Unit Purchase Agreement.
(b) As soon as practicable, the Company shall file a proxy
statement in preliminary and definitive form with the Securities and
Exchange Commission in connection with the Shareholder Meeting. The
Investor agrees to assist and cooperate with the Company in the
preparation of the proxy statement. The definitive proxy statement
("Proxy Statement") for the Shareholder Meeting shall be mailed to
shareholders as soon as practicable. The Company represents and
warrants to the Investor that the Proxy Statement will comply in all
material respects with the requirements of the Exchange Act, and the
applicable rules and regulations thereunder, and that the Proxy
Statement will contain no untrue statement of any material fact and
will not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
7. Indemnification. The Company agrees to indemnify the Investor and
its general and limited partners, and each officer, director, employee, partner,
member, agent and affiliate of the Investor and its general and limited partners
(the "Indemnified Parties") for, and hold each Indemnified Party harmless from
and against: (i) any and all damages, losses, claims and other liabilities of
any and every kind, including, without limitation, judgments and costs of
settlement, and (ii) any and all out-of-pocket costs and expenses of any and
every kind, including, without limitation, reasonable fees and disbursements of
one counsel for such Indemnified Parties (selected by the Investor) (all of
which expenses periodically shall be reimbursed as incurred), in each case,
arising out of or suffered or incurred in connection with (A) any investigative,
administrative or judicial proceeding or claim brought or threatened relating to
or arising out of the Investor's purchase of the Shares, or this Agreement, the
Registration Rights Agreement, or the transactions contemplated hereby and
thereby, or (B) any material inaccuracy or alleged inaccuracy in any
representation or warranty of the Company made or incorporated by reference in
this Agreement or any material breach or alleged breach by the Company of any
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covenant or agreement made or incorporated by reference in this Agreement or the
Registration Rights Agreement.
8. Termination.
8.1 Termination Prior to Closing. This Agreement may
be terminated at any time prior to the Closing:
(a) by the mutual consent of the Investor and the
Company;
(b) by the giving of notice by the Investor or the Company at
any time after August 31, 1997 (or such later date as shall have been
agreed to in writing by the parties hereto), if at the time notice of
such termination is given the Closing shall not have been consummated;
or
(c) by the Investor, if there has been a material
misrepresentation or material breach on the part of the Company in any
of the representations, warranties, covenants or agreements of the
Company set forth herein, or if there has been any material failure on
the part of the Company to comply with its obligations hereunder, or by
the Company if there has been a material misrepresentation or material
breach on the part of the Investor in any of the representations,
warranties, covenants or agreements of the Investor set forth herein,
or if there has been any material failure on the part of the Investor
to comply with its obligations hereunder.
8.2 Liability Upon Termination.
(a) In the event of termination of this Agreement pursuant to
Sections 8.1(a) or 8.1(b), no party hereto shall have any liability or
further obligation to any other party hereto except as provided in
Sections 7, 9.7 and 9.8.
(b) In the event of termination pursuant to Section 8.1(c),
(i) if the Investor is the non-breaching party, the Investor shall be
entitled to reimbursement of expenses as set forth in Section 9.8 and
(ii) the non-breaching party shall have the right to pursue all rights
and remedies available to it hereunder or otherwise provided at law or
equity, including without limitation, the right to seek specific
performance and money damages.
9. Miscellaneous.
9.1 Survival of Warranties. The warranties,
representations, covenants and agreements of the Company and
the Investor contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement
and the Closing. Neither any investigation by or on behalf
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of the Investor nor the receipt by the Investor of any data or
information from the Company, shall in any way affect the right of the
Investor to rely on the representations, warranties, covenants and
agreements of the Company or the right of the Investor to terminate
this Agreement as provided in Section 8.
9.2 Successors and Assigns. The Investor and each assignee of
the Investor may, without the consent of the Company, assign its rights
under this Agreement, in whole or in part, in connection with any sale
or transfer to an affiliate or a partner, and the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any person
other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liabilities under or by
reason of this Agreement, except as expressly provided in this
Agreement.
9.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to
agreements among New York residents entered into and to be performed
entirely within New York.
9.4 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
9.5 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
9.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be
deemed effectively given upon receipt by the party to be notified or
five days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the
party to be notified (i) if to the Company, at the following address:
75 Terminal Avenue
Clark, New Jersey 07066
Attn: Robert W. Fine
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with a copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
Attn: Leslie J. Levinson
(ii) if to the Investor, at the following address:
50 Charles Lindbergh Blvd.
Suite 500
Uniondale, New York 11553-3600
Attn: Scott A. Shay
with a copy to:
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
Attn: Bruce Lieb
or at such other address as any of the parties may designate by 10
days' advance written notice to the other parties.
9.7 No Finder's Fee. Each party represents that it is
not, and will not be, obligated for any finder's fee or
commission in connection with this transaction.
The Investor agrees to indemnify and hold harmless the Company
from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Investor or any of its
officers, employees or representatives is responsible.
The Company agrees to indemnify and hold harmless the Investor
from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of their
respective officers, employees or representatives is responsible.
9.8 Expenses. The Company agrees to pay all out-of-pocket fees
and reasonable expenses incurred by the Investor in connection with
this Agreement and the transactions contemplated hereby (whether or not
the transactions contemplated hereby are consummated) including,
without limitation, (i) the reasonable fees and expenses of counsel for
the Investor incurred in connection with this Agreement and the
transactions contemplated hereby (including the reasonable fees and
expenses of Proskauer Rose Goetz & Mendelsohn LLP, and including,
without limitation, any legal fees and expenses relating to any future
waiver, consent or
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<PAGE> 14
amendment, whether or not any such future action is given or
consummated) and (ii) all filing fees relating to filings under the
Hart-Scott-Rodino Antitrust Improvements Act of
1974, as amended.
9.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Investor and
the Company.
9.10 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall
be excluded from this Agreement and the balance of this Agreement shall
be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
9.11 Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to
the subject matter hereof.
9.12 Equitable Adjustments. Prior to the consummation
of the Closing, all number of Shares referred to herein
shall be equitably adjusted to account for stock splits,
stock dividends, mergers and similar corporate events.
[END OF TEXT]
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<PAGE> 15
IN WITNESS WHEREOF, the parties have executed this agreement
as of the date first above written.
"COMPANY"
TRANSWORLD HOME HEALTHCARE, INC.
By: /s/ Robert W. Fine
---------------------------------
Name: Robert W. Fine
Title: President
"THE INVESTOR"
HYPERION PARTNERS II L.P.
By: HYPERION VENTURES II L.P.,
its General Partner
By: HYPERION FUNDING II CORP.,
its General Partner
By: /s/ Scott A. Shay
---------------------------------
Name:
Title:
15
<PAGE> 1
EXHIBIT 2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of the 26th
day of March, 1997 by and between Transworld Home HealthCare, Inc., a New York
corporation (the "Company"), and Hyperion TW Fund L.P., a Delaware limited
partnership (the "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Shares.
1.1 Sale and Issuance of Shares. Subject to the terms and
conditions of this Agreement, at the Closing (as hereinafter defined),
the Investor agrees to purchase and the Company agrees to sell and
issue to the Investor 4,116,456 shares (the "Shares") of common stock,
par value $.01 per share, of the Company (the "Common Stock") at a
price of $9.875 per Share, for an aggregate purchase price of
$40,650,000.
1.2 Closing. The purchase and sale of the Shares shall take
place at the offices of Proskauer Rose Goetz & Mendelsohn LLP, 1585
Broadway, New York, New York 10036, within 15 days following the
satisfaction of the conditions set forth in Sections 4 and 5, or at
such other time and place as the Company and the Investor mutually
agree upon orally or in writing (which time and place are designated as
the "Closing"). At the Closing, in addition to satisfying the other
conditions set forth herein, the Company shall deliver to the Investor
one or more certificates representing the Shares, against delivery to
the Company by the Investor of a wire transfer in the amount of
$40,650,000.
2. Representations and Warranties of the Company. The
Company hereby represents and warrants to, and agrees with, the
Investor that:
2.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York. The Company has all requisite
power and authority to own, lease, license and use its properties and
assets and to carry on its business as now conducted and as proposed to
be conducted. The Company has all requisite power and authority to
enter into and perform this Agreement and the Registration Rights
Agreement in the form attached hereto as Exhibit A (the "Registration
Rights Agreement") and the transactions contemplated hereby and
thereby.
<PAGE> 2
2.2 Authorization. All corporate action on the part of the
Company and its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement and the
Registration Rights Agreement, the performance of all obligations of
the Company hereunder and thereunder and the authorization, sale,
issuance and delivery of the Shares has been taken. This Agreement
constitutes, and when executed and delivered by the Company the
Registration Rights Agreement will constitute, the valid and legally
binding obligation of the Company, enforceable in accordance with their
respective terms, except (i) as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of creditors' rights
generally, (ii) as enforceability may be limited by laws relating to
the availability of specific performance, injunctive relief or other
equitable remedies, and (iii) to the extent the indemnification
provisions contained in the Registration Rights Agreement may be
limited by applicable federal or state securities laws.
2.3 Valid Issuance of Shares.
(a) The Shares, when issued, sold and delivered in accordance
with the terms hereof and for the consideration expressed herein, (i)
will be duly and validly issued and fully paid and nonassessable, (ii)
will be free of any pledges, liens, security interests, claims or other
encumbrances of any kind, (iii) will be issued in compliance with all
applicable federal and state securities laws, and (iv) will not be
issued in violation of any preemptive rights of shareholders. The
Shares have been duly and validly reserved for issuance.
(b) The outstanding shares of Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and were
issued in compliance with all applicable federal and state securities
laws.
2.4 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local governmental
authority on the part of the Company or any of its subsidiaries is
required in connection with the consummation of the transactions
contemplated by this Agreement and the Registration Rights Agreement
except for (i) filing with the Securities and Exchange Commission on
Form 10-C; and (ii) such filings as have been made.
2.5 Compliance with Other Instruments. The execution,
delivery and performance of this Agreement and the Registration Rights
Agreement and the consummation of the transactions contemplated hereby
and thereby will not result
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<PAGE> 3
in a violation of, or be in conflict with, or constitute, with or
without the passage of time or the giving of notice or both, a default
under, any provision of the Company's certificate of incorporation, as
amended, or bylaws, as amended, or any judgment, order, writ or decree,
or any contract, agreement or instrument, or require any consent,
waiver or approval thereunder, or give rise to a right to terminate or
accelerate the performance required thereby, or constitute an event
which results in the creation of any lien, charge or encumbrance upon
any asset of the Company.
2.6 SEC Documents. The Company has provided the Investor with
copies of its Annual Report on Form 10-K for the fiscal year ended
October 31, 1996 and its Quarterly Report on Form 10-Q for the quarter
ended January 31, 1997 (collectively, the "SEC Documents"), each as
filed with the Securities and Exchange Commission. On the date of their
respective filings, such SEC Documents complied in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended, and none of such SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
2.7 Financial Statements. The Company has delivered to the
Investor its audited consolidated financial statements (consolidated
balance sheet and consolidated statements of operations, changes in
stockholders' equity and cash flows) at October 31, 1996 and for the
year then ended and its unaudited financial statements (consolidated
balance sheet and consolidated statement of operations and cash flows)
at January 31, 1997 and for the three-month period then ended
(collectively the "Financial Statements"). The Financial Statements are
complete and correct in all material respects and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated. The Financial
Statements accurately describe the financial condition and operating
results of the Company and its subsidiaries as of the dates, and for
the periods, indicated therein, subject, in the case of the unaudited
financial statements, to normal year-end audit adjustments which will
not in the aggregate be material.
2.8 No Material Adverse Changes. Except as disclosed in the
SEC Documents (and, to the extent the following representation relates
to Health Management, Inc., a Delaware corporation ("HMI"), except as
previously disclosed to the Investor), since January 31, 1997, there
has been no material adverse change in the assets, properties,
business, operations, condition (financial or otherwise) or prospects
of the Company and its subsidiaries and the Company has no
3
<PAGE> 4
knowledge of any event which is likely to result in any such change. To
the extent the foregoing representation relates to HMI, it is being
made to the best knowledge of the Company.
2.9 Disclosure. The Company has fully provided the Investor or
its counsel with all the information which the Investor has requested
for deciding whether to purchase the Shares and all information which
the Company believes is reasonably necessary to enable the Investor to
make such decision. Neither this Agreement nor any other statements or
certificates made or delivered in connection herewith contains any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements herein or therein not misleading.
3. Representations and Warranties of the Investor. The
Investor hereby represents and warrants to the Company that:
3.1 Authorization. The Investor has all requisite power and
authority to enter into this Agreement. This Agreement has been duly
executed and delivered and constitutes the Investor's valid and legally
binding obligation, enforceable in accordance with its terms, except
(i) as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally and
(ii) as enforceability may be limited by laws relating to the
availability of specific performance, injunctive relief or other
equitable remedies.
3.2 Purchase Entirely for Own Account. The Shares to be
purchased by the Investor will be acquired for investment for its own
account, and, except as contemplated by the Registration Rights
Agreement or otherwise in accordance with applicable securities laws,
not with a view to the resale or distribution of any part thereof and
without the present intention of selling, granting any participation
in, or otherwise distributing the same.
3.3 Investment Experience. The Investor can bear the
economic risk of its investment and has such knowledge and
experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment
in the Shares.
3.4 Restricted Securities. The Investor understands that the
Shares it is purchasing are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired
from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may be
resold without registration under the Securities Act of
4
<PAGE> 5
1933, as amended (the "Act"), only in certain limited circumstances. In
this connection, the Investor represents that it is familiar with Rule
144 of the Securities and Exchange Commission, as presently in effect,
and understands the resale limitations imposed thereby and by the Act.
3.5 Legends. The Investor understands that the
certificates evidencing the Shares will bear the following
legend:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SHARES
NOR ANY INTEREST THEREIN MAY BE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR
SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER."
The Shares shall not be required to bear such legend if an
opinion of counsel reasonably satisfactory to the Company is delivered
to the Company to the effect that neither the legend nor the
restrictions on transfer contained in this Agreement are required to
insure compliance with the Act. Whenever, pursuant to the preceding
sentence, any certificate for any of the Shares is no longer required
to bear the foregoing legend, the Company may, and if requested by the
holder thereof, shall, issue to the holder, at the Company's expense, a
new certificate not bearing the foregoing legend.
4. Conditions to the Investor's Obligations at Closing.
The obligations of the Investor under this Agreement are subject
to the fulfillment on or before the Closing of each of the
following conditions:
4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true in all
material respects on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of
the Closing.
4.2 Performance. The Company shall have performed and complied
with all agreements, covenants, obligations and conditions contained in
this Agreement in all material respects that are required to be
performed or complied with by it on or before the Closing.
4.3 No Material Adverse Change. There shall have been no
material adverse change in the business, affairs, prospects,
operations, properties, assets or condition (financial or otherwise) of
the Company and its subsidiaries taken as a whole.
5
<PAGE> 6
4.4 Compliance Certificate. The President or Chief Executive
Officer of the Company shall deliver to the Investor at the Closing a
certificate certifying that the conditions specified in Sections 4.1,
4.2, 4.3, 4.6, 4.9 and 4.12 have been fulfilled.
4.5 Qualifications; Litigation. All authorizations, approvals
or permits, if any, of any governmental authority or regulatory body
that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained and
effective as of the Closing. No federal, state or local regulatory or
other governmental authority shall have taken any action or issued any
statement, written or oral, to the effect that the transactions
contemplated to be taken at the Closing may not be consummated as
currently structured, which action or statement, in the reasonable
judgment of the Investor, makes proceeding with the transactions
contemplated by this Agreement inadvisable. There shall not have been
instituted or threatened any legal proceeding relating to, or seeking
to prohibit or otherwise challenge, this Agreement or the consummation
of the transactions contemplated by this Agreement, or seeking to
obtain substantial damages with respect thereto.
4.6 Consents and Coordination. All third party consents and
waivers that are required in connection with the Closing under this
Agreement, and the consummation of the transactions contemplated
hereby, shall be duly obtained and effective as of the Closing.
4.7 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the
Closing and all documents incident thereto shall be satisfactory in
form and substance to the Investor, and the Investor shall have
received all such counterpart original and certified or other copies of
such documents as it may reasonably request.
4.8 Opinion of Company Counsel. Baer, Marks & Upham LLP,
counsel for the Company, shall have delivered an opinion which is
addressed to the Investor, dated as of the Closing and substantially in
the form delivered pursuant to the Unit Purchase Agreement dated as of
November 20, 1995 between the Company and Hyperion Partners II L.P., a
Delaware limited partnership ("HPII") (the "Unit Purchase Agreement").
4.9 Banks Waiver and Consent. The Company shall have
received, in form and substance satisfactory to the
Investor, (i) the waiver of the lenders (the "Banks") party
to the Credit Agreement dated as of July 31, 1996, as
amended (the "Credit Agreement") among the Company, the
6
<PAGE> 7
Banks and Bankers Trust Company, as Agent, of any right the Banks may
have to the proceeds of the transactions contemplated hereby to prepay
outstanding indebtedness of the Company under the Credit Agreement,
(ii) the consent of the Banks to the issuance and sale of the Shares
and waiver of any events of default caused in connection therewith, and
(iii) such other consents and waivers of the Banks as may be required
in connection with the transactions hereunder and under the Stock
Purchase Agreement dated as of January 8, 1997, between the Company and
HPII (the "HPII Purchase Agreement").
4.10 Hart-Scott-Rodino. Any applicable waiting periods
in respect of the transactions contemplated by this
Agreement under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, shall have expired at or prior to
the Closing.
4.11 Registration Rights Agreement. The Company shall
have executed and delivered the Registration Rights
Agreement.
4.12 Paribas Consent. The Company shall have received,
in form and substance satisfactory to the Investor, the
consent of Paribas Principal, Inc. to this Agreement and the
Registration Rights Agreement.
5. Conditions to the Company's Obligations at the Closing. The
obligations of the Company to the Investor under Section 1 of this Agreement are
subject to the fulfillment on or before the Closing of the following conditions,
any of which may be waived by the Company:
5.1 Representations and Warranties. The representations and
warranties of the Investor contained in Section 3 shall be true in all
material respects on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of
the date of the Closing.
5.2 Payment of Purchase Price. The Investor shall
have delivered the purchase price specified in Section 1.2.
5.3 Performance. The Investor shall have performed and
complied with all agreements, covenants, obligations and conditions
contained in this Agreement in all material respects that are required
to be performed or complied with by it on or before the Closing.
5.4 Qualifications; Litigation. All authorizations,
approvals or permits, if any, of any governmental authority
or regulatory body that are required in connection with the
lawful issuance and sale of the Shares pursuant to this
7
<PAGE> 8
Agreement shall be duly obtained and effective as of the Closing. There
shall not have been instituted or threatened any legal proceeding
relating to, or seeking to prohibit or otherwise challenge, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or seeking to obtain substantial damages with respect
thereto.
5.5 Banks Waiver and Consent. The Company shall have received,
in form and substance satisfactory to the Company, (i) the waiver of
the Banks of any right they may have to the proceeds of the
transactions contemplated hereby to prepay outstanding indebtedness of
the Company under the Credit Agreement, (ii) the consent of the Banks
to the issuance and sale of the Shares and waiver of any events of
default caused in connection therewith, and (iii) such other consents
and waivers of the Banks as may be required in connection with the
transactions hereunder.
5.6 Hart-Scott-Rodino. Any applicable waiting periods in
respect of the transactions contemplated by this Agreement under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall
have expired at or prior to the Closing.
5.7 Consents and Coordination. All consents and waivers that
are required in connection with the Closing under this Agreement, and
the consummation of the transactions contemplated hereby, shall be duly
obtained and effective as of the Closing.
5.8 Paribas Consent. The Company shall have received, in form
and substance satisfactory to the Company, the consent of Paribas
Principal, Inc. to this Agreement and the Registration Rights
Agreement.
6. Covenants of the Company. The Company covenants and
agrees with the Investor as follows:
6.1 Advice of Changes. The Company will promptly advise the
Investor in writing of (i) any event occurring subsequent to the date
of this Agreement which would render any representation or warranty of
the Company contained in this Agreement, if made on or as of the date
of such event or the date of the Closing, untrue or inaccurate in any
material respect and (ii) any material adverse change in the business
of the Company and its subsidiaries taken as a whole.
6.2 Information. The Company will deliver to the Investor the
information required to be delivered to HPII pursuant to Section 6.9 of
the Unit Purchase Agreement (as in effect on the date hereof), unless
the Investor at any
8
<PAGE> 9
time specifically requests that such information not be
delivered to it.
6.3 Observer Rights. The Company will afford to the
Investor the observer and other rights required to be
afforded to HPII pursuant to Section 6.11 of the Unit
Purchase Agreement (as in effect on the date hereof).
6.4 Listing Application. The Company shall prepare
and file with the National Association of Securities
Dealers, Inc. ("NASD") an Additional Listing Application, in
the form and within the time period prescribed by the NASD,
with respect to the listing of the Shares.
6.5 Publicity. Except as may be required by law, the Company
shall not use the name of, or make reference to, the Investor or any of
its affiliates in any press release or in any public manner without the
Investor's prior written consent.
7. Indemnification. The Company agrees to indemnify the Investor
and its general and limited partners, and each officer, director, employee,
partner, member, agent and affiliate of the Investor and its general and limited
partners (the "Indemnified Parties") for, and hold each Indemnified Party
harmless from and against: (i) any and all damages, losses, claims and other
liabilities of any and every kind, including, without limitation, judgments and
costs of settlement, and (ii) any and all out-of-pocket costs and expenses of
any and every kind, including, without limitation, reasonable fees and
disbursements of one counsel for such Indemnified Parties (selected by the
Investor) (all of which expenses periodically shall be reimbursed as incurred),
in each case, arising out of or suffered or incurred in connection with (A) any
investigative, administrative or judicial proceeding or claim brought or
threatened relating to or arising out of the Investor's purchase of the Shares,
or this Agreement, the Registration Rights Agreement, or the transactions
contemplated hereby and thereby, or (B) any material inaccuracy or alleged
inaccuracy in any representation or warranty of the Company made or incorporated
by reference in this Agreement or any material breach or alleged breach by the
Company of any covenant or agreement made or incorporated by reference in this
Agreement or the Registration Rights Agreement.
8. Termination.
8.1 Termination Prior to Closing. This Agreement may
be terminated at any time prior to the Closing:
(a) by the mutual consent of the Investor and the
Company;
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<PAGE> 10
(b) by the giving of notice by the Investor or the Company at
any time after August 31, 1997 (or such later date as shall have been
agreed to in writing by the parties hereto), if at the time notice of
such termination is given the Closing shall not have been consummated;
(c) by the giving of notice by the Investor or the Company at
any time after the HPII Purchase Agreement is terminated; or
(d) by the Investor, if there has been a material
misrepresentation or material breach on the part of the Company in any
of the representations, warranties, covenants or agreements of the
Company set forth herein, or if there has been any material failure on
the part of the Company to comply with its obligations hereunder, or by
the Company if there has been a material misrepresentation or material
breach on the part of the Investor in any of the representations,
warranties, covenants or agreements of the Investor set forth herein,
or if there has been any material failure on the part of the Investor
to comply with its obligations hereunder.
8.2 Liability Upon Termination.
(a) In the event of termination of this Agreement pursuant to
Sections 8.1(a), 8.1(b) or 8.1(c), no party hereto shall have any
liability or further obligation to any other party hereto except as
provided in Sections 7, 9.7 and 9.8.
(b) In the event of termination pursuant to Section 8.1(d),
(i) if the Investor is the non-breaching party, the Investor shall be
entitled to reimbursement of expenses as set forth in Section 9.8 and
(ii) the non-breaching party shall have the right to pursue all rights
and remedies available to it hereunder or otherwise provided at law or
equity, including without limitation, the right to seek specific
performance and money damages.
9. Miscellaneous.
9.1 Survival of Warranties. The warranties, representations,
covenants and agreements of the Company and the Investor contained in
or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing. Neither any investigation
by or on behalf of the Investor nor the receipt by the Investor of any
data or information from the Company, shall in any way affect the right
of the Investor to rely on the representations, warranties, covenants
and agreements of the Company or the right of the Investor to terminate
this Agreement as provided in Section 8.
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<PAGE> 11
9.2 Successors and Assigns. The Investor and each assignee of
the Investor may, without the consent of the Company, assign its rights
under this Agreement, in whole or in part, in connection with any sale
or transfer to an affiliate or a partner, and the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any person
other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liabilities under or by
reason of this Agreement, except as expressly provided in this
Agreement.
9.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to
agreements among New York residents entered into and to be performed
entirely within New York.
9.4 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
9.5 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
9.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be
deemed effectively given upon receipt by the party to be notified or
five days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the
party to be notified (i) if to the Company, at the following address:
75 Terminal Avenue
Clark, New Jersey 07066
Attn: Robert W. Fine
with a copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
Attn: Leslie J. Levinson
11
<PAGE> 12
(ii) if to the Investor, at the following address:
50 Charles Lindbergh Blvd.
Suite 500
Uniondale, New York 11553-3600
Attn: Scott A. Shay
with a copy to:
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
Attn: Bruce Lieb
or at such other address as any of the parties may designate by 10
days' advance written notice to the other parties.
9.7 No Finder's Fee. Each party represents that it is not,
and will not be, obligated for any finder's fee or commission in
connection with this transaction.
The Investor agrees to indemnify and hold harmless the Company
from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Investor or any of its
officers, employees or representatives is responsible.
The Company agrees to indemnify and hold harmless the Investor
from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of their
respective officers, employees or representatives is responsible.
9.8 Expenses. The Company agrees to pay all out-of-pocket fees
and reasonable expenses incurred by the Investor in connection with
this Agreement and the transactions contemplated hereby (whether or not
the transactions contemplated hereby are consummated) including,
without limitation, (i) the reasonable fees and expenses of counsel for
the Investor incurred in connection with this Agreement and the
transactions contemplated hereby (including the reasonable fees and
expenses of Proskauer Rose Goetz & Mendelsohn LLP, and including,
without limitation, any legal fees and expenses relating to any future
waiver, consent or amendment, whether or not any such future action is
given or consummated) and (ii) all filing fees relating to filings
under the Hart-Scott-Rodino Antitrust Improvements Act of 1974, as
amended.
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<PAGE> 13
9.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Investor and
the Company.
9.10 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall
be excluded from this Agreement and the balance of this Agreement shall
be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
9.11 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof.
9.12 Equitable Adjustments. Prior to the consummation of the
Closing, all number of Shares referred to herein shall be equitably
adjusted to account for stock splits, stock dividends, mergers and
similar corporate events.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties have executed this agreement
as of the date first above written.
"COMPANY"
TRANSWORLD HOME HEALTHCARE, INC.
By: /s/ Robert W. Fine
----------------------------------
Name: Robert W. Fine
Title: President
"THE INVESTOR"
HYPERION TW FUND L.P.
By: HYPERION TW LLC,
its General Partner
By: HYPERION PARTNERS II L.P.,
its Managing Member
By: HYPERION VENTURES II L.P.,
its General Partner
By: HYPERION FUNDING II CORP.,
its General Partner
By: /s/ Scott A. Shay
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Name:
Title:
14
