SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
Transworld Home HealthCare, Inc.
(Name of Issuer)
Common Stock, $.01 par value per share
(Title of Class of Securities)
894081 10 8
(CUSIP Number)
Scott A. Shay, Hyperion Partners II L.P.,
50 Charles Lindbergh Blvd., Suite 500,
Uniondale, NY 11553 (516) 745-6644
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 13, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1 (b)(3) or
(4), check the following box. [ ]
Check the following box if a fee is being paid with the statement.
[ ] (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See
Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosure provided in a
prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that Section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hyperion Partners II L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -4,400,000- (1)(2)
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
10 SHARED DISPOSITIVE POWER
-4,400,000- (1)(2)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-4,400,000- (2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /x/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.3% (2)
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Power is exercised through its sole general partner, Hyperion
Ventures II L.P.
(2) Excludes 3,000,000 shares issuable upon exercise of Warrants
and 898,877 shares subject to purchase under a Stock Purchase
Agreement.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hyperion Ventures II L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -4,400,000- (1)(2)
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
10 SHARED DISPOSITIVE POWER
-4,400,000- (1)(2)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-4,400,000- (1)(2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /x/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.3% (2)
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Solely in its capacity as the general partner of Hyperion
Partners II L.P.
(2) Excludes 3,000,000 shares issuable upon exercise of Warrants
and 898,877 shares subject to purchase under a Stock Purchase
Agreement.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hyperion Funding II Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -4,400,000- (1)(2)
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
10 SHARED DISPOSITIVE POWER
-4,400,000- (1)(2)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-4,400,000- (1)(2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /x/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.3% (2)
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Solely in its capacity as the sole general partner of Hyperion
Ventures II L.P., which is the sole general partner of
Hyperion Partners II L.P.
(2) Excludes 3,000,000 shares issuable upon exercise of Warrants
and 898,877 shares subject to purchase under a Stock Purchase
Agreement.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lewis S. Ranieri
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -4,400,000- (1)(2)
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
10 SHARED DISPOSITIVE POWER
-4,400,000- (1)(2)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-4,400,000- (1)(2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /x/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.3% (2)
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Solely in his capacity as Chairman and President, director and
shareholder of Hyperion Funding II Corp., which is the sole
general partner of Hyperion Ventures II L.P., which is the
sole general partner of Hyperion Partners II L.P.
(2) Excludes 3,000,000 shares issuable upon exercise of Warrants
and 898,877 shares subject to purchase under a Stock Purchase
Agreement.
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Scott A. Shay
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -4,400,000- (1)(2)
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
10 SHARED DISPOSITIVE POWER
-4,400,000- (1)(2)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-4,400,000- (1)(2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /x/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.3% (2)
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Solely in his capacity as Executive Vice President and
Assistant Secretary, director and shareholder of Hyperion
Funding II Corp., which is the sole general partner of
Hyperion Ventures II L.P., which is the sole general partner
of Hyperion Partners II L.P.
(2) Excludes 3,000,000 shares issuable upon exercise of Warrants
and 898,877 shares subject to purchase under a Stock Purchase
Agreement.
The Statement on Schedule 13D, dated June 6, 1996, filed
by the undersigned with the Securities and Exchange Commission on
June 7, 1996, relating to the Common Stock, par value $0.01 per
share, of Transworld Home HealthCare, Inc., as amended by Amendment
No. 1 thereto, dated August 1, 1996 (the "Schedule 13D"), is hereby
further amended by adding thereto the information set forth below.
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Schedule 13D, unless the
context otherwise requires.
Item 2. Identity and Background.
Item 2 is hereby supplemented by addition of the
following:
Pursuant to a Stock Purchase Agreement, dated as of
January 8, 1997, by and between Transworld and the Fund, as
supplemented by a letter agreement dated January 13, 1997 (the
"Stock Purchase Agreement"), the Fund agreed, upon satisfaction of
the conditions set forth therein, to purchase from Transworld an
additional 898,877 shares of Common Stock (the "January 1997
Shares") at a price of $11.125 per share, for an aggregate purchase
price of $10,000,000.
Item 3. Source and Amount of Funds and Other Consideration.
Item 3 is hereby supplemented by addition of the
following:
The funds for the purchase of the January 1997 Shares are
expected to be obtained from capital contributed to the Fund by its
partners.
Item 4. Purpose of Transactions.
The January 1997 Shares are being acquired by the Fund
for the purpose of investment. The January 1997 Shares, and any
other shares of Common Stock now owned or hereafter acquired by the
Fund or the other Reporting Persons may be disposed of at any time
or from time to time, in whole or in part. In addition, the
Reporting Persons and their affiliates may in the future acquire
additional shares of Common Stock.
Item 5. Interest in Securities of the Issuer.
Item 5(a) is hereby supplemented by addition of the
following:
(a) The Fund owns 4,400,000 shares of Common Stock,
constituting approximately 44.3% of the outstanding Common Stock
(on the basis of 9,931,752 shares outstanding as of September 9,
1996). In addition, the Fund owns 3,000,000 Warrants and, pursuant
to the Stock Purchase Agreement, the Fund has agreed, upon
satisfaction of the conditions set forth therein, to purchase an
additional 898,877 shares of Common Stock.
As a result of its right to acquire Common Stock upon
exercise of the Warrants and pursuant to the Stock Purchase
Agreement, the Fund may be deemed under Rule 13d-3(d)(1)(i)(A)
under the Act, to own beneficially 8,298,877 shares of Common
Stock, constituting approximately 60.0% of the outstanding Common
Stock (on the basis of 9,931,752 shares outstanding as of September
9, 1996).
Item 7. Material to be Filed as Exhibits.
Item 7 is hereby supplemented by addition of the
following:
9. Exhibit IX - Stock Purchase Agreement dated as of
January 8, 1997, filed herewith
10. Exhibit X - Letter Agreement dated as of January
13, 1997, filed herewith
Signature
After reasonable inquiry and to the best of each of the
undersigned's knowledge and belief, each of the undersigned
certifies that the information set forth in this statement is true,
complete and correct.
Dated: January 23, 1997
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: Scott A. Shay
Title: Executive Vice
President
HYPERION VENTURES II L.P.
By: Hyperion Funding II Corp.,
its general partner
By: /s/Scott A. Shay
Name: Scott A. Shay
Title: Executive Vice
President
HYPERION FUNDING II CORP.
By: /s/Scott A. Shay
Name: Scott A. Shay
Title: Executive Vice
President
/s/Scott A. Shay
Scott A. Shay, as Attorney-in-Fact
for Lewis S. Ranieri
/s/Scott A. Shay
Scott A. Shay
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as
of this 8th day of January, 1997 by and between Transworld Home
HealthCare, Inc., a New York corporation (the "Company"), and
Hyperion Partners II L.P., a Delaware limited partnership ("HPII"
or 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 898,877 shares (the "Shares")
of common stock, par value $.01 per share, of the Company (the
"Common Stock") at a price of $11.125 per Share, for an aggregate
purchase price of $10,000,000.
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
$10,000,000.
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 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. 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 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)
filings with respect to compliance with the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended; (ii) filing with
the Securities and Exchange Commission on Form 10-C; 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. The execution, delivery and
performance of this Agreement, and the consummation of the
transactions contemplated hereby, will not constitute a "change
of control" under any agreement or contract or give rise to any
right to receive severance or similar payments.
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.
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 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.
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, 4.5, 4.6 and 4.11 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. 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 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
the Investor (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 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, (iii) the consent of the Banks to the Stock
Purchase Agreement (the "Stock Purchase Agreement") dated as of
November 13, 1996, as amended, between the Company and Health
Management, Inc. ("HMI") and the consummation of the transactions
contemplated thereby, (iv) the consent of the Banks to the
Agreement and Plan of Merger (the "Merger Agreement") among the
Company, IMH Acquisition Corp. and HMI dated as of November 13,
1996, and the consummation of the merger (the "Merger") and other
transactions contemplated thereby and (v) such other consents and
waivers of the Banks as may be required in connection with the
transactions hereunder and under the Stock Purchase Agreement and
Merger Agreement.
4.10 Hart-Scott-Rodino. All 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 Investment in and Merger with Health Management,
Inc. The transactions contemplated by the Stock Purchase
Agreement and the Merger Agreement (including, without
limitation, the Merger) shall have been consummated.
5. Conditions to the Company's Obligations at the
Closings. 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 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, (iii) the consent of the Banks to the Stock
Purchase Agreement and the consummation of the transactions
contemplated thereby, (iv) the consent of the Banks to the Merger
Agreement and the consummation of the Merger and other
transactions contemplated thereby and (v) such other consents and
waivers of the Banks as may be required in connection with the
transactions hereunder and under the Stock Purchase Agreement and
Merger Agreement.
5.6 Hart-Scott-Rodino. All 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 Investment in and Merger with Health Management,
Inc. The transactions contemplated by the Stock Purchase
Agreement and the Merger Agreement (including, without
limitation, the Merger) shall have been consummated.
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 covenants and agrees
that the Company shall deliver to the Investor the information
specified in Section 6.9 of the Unit Purchase Agreement, unless
the Investor at any time specifically requests that such
information not be delivered to it.
6.3 Observer and Director Rights. The Company
covenants and agrees that it 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.
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.
7. Indemnification. The Company agrees to indemnify the
Investor and its general partner, and each officer, director,
employee, partner, agent and affiliate of the Investor and its
general partner (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, the Stock Purchase Agreement, the
Merger 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;
(b) by the giving of notice by the Investor or the
Company at any time after June 30, 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 Stock Purchase Agreement or the
Merger 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 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.
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
party 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: Vincent J. Caruso
with a copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
Attn: Leslie J. Levinson
(ii) if to HPII, 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 HPII 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 HPII 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.
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 HPII 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]
IN WITNESS WHEREOF, the parties have executed this
agreement as of the date first above written.
"COMPANY"
TRANSWORLD HOME HEALTHCARE, INC.
By:/s/Vincent J. Caruso
Name: Vincent J. Caruso
Title: Executive Vice President
and Chief Administrative
Officer
"THE INVESTOR OR HPII"
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: Scott A. Shay
Title: Executive Vice President
Hyperion Partners II L.P.
50 Charles Lindbergh Blvd.
Suite 500
Uniondale, New York 11553-3600
January 13, 1997
Transworld Home HealthCare, Inc.
75 Terminal Avenue
Clark, NJ 07066
Attn: Mr. Vincent J. Caruso, Executive Vice President
Gentlemen:
Reference is made to the Stock Purchase Agreement (the
"Stock Purchase Agreement") dated as of January 8, 1997 by and
between Transworld Home HealthCare, Inc. (the "Company) and
Hyperion Partners II L.P. ("HPII"). (Capitalized terms used but
not defined herein shall have the meanings given to them in the
Stock Purchase Agreement.)
The Stock Purchase Agreement provides, among other
things, that it shall be a condition precedent to the obligation
of HPII to consummate the transactions contemplated by the Stock
Purchase Agreement (the "Transactions") that the Banks shall have
consented to the Merger and that the Merger shall have been
consummated.
This will confirm that, notwithstanding the foregoing,
if (i) Transworld requires the proceeds of the Transactions in
order to satisfy its financial covenants under the Credit
Agreement and (ii) all other conditions set forth in the Stock
Purchase Agreement to the obligation of HPII to consummate the
Transactions have been satisfied, HPII is prepared to consummate
the Transactions prior to the receipt by Transworld of the
consent of the Banks to the Merger (although all other consents
and waivers of the Banks and others must have been received by
Transworld) and prior to the consummation of the Merger.
Very truly yours,
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: Scott A. Shay
Title: Executive Vice
President
