SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
___________
SCHEDULE 13 D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Mariner Health Group, Inc.
________________________________________________________________
(Name of Issuer)
Common Stock, $.01 par value per share
_________________________________________________________________
(Title of Class of Securities)
68 45J 109
_________________________________________________________________
(CUSIP Number)
Stiles A. Kellett, Jr.
200 Galleria Parkway, Suite 1800
Atlanta, Georgia 30327
(770) 956-7970
_________________________________________________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 18, 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. [ ]
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CUSIP No. 68 45J 109 13D Page 2 of 6
Pages
________________________________________________________________
(1) Name of Reporting Person:
Stiles A. Kellett, Jr.
S.S. or I.R.S. Identification Nos. of Above Person:
________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group (a) [X]
(b) [ ]
________________________________________________________________
(3) SEC Use Only
________________________________________________________________
(4) Source of Funds: OO
________________________________________________________________
(5) Check Box if Disclosure of Legal Proceedings is Required
pursuant to Items 2(d) or 2(e) [ ]
________________________________________________________________
(6) Citizenship or Place of Organization: United States of
America
________________________________________________________________
Number of Shares (7) Sole Voting Power: 3,051,443*
Beneficially Owned by _______________________________________
Each Reporting (8) Shared Voting Power: 0
Person With _______________________________________
(9) Sole Dispositive Power: 3,051,443*
_______________________________________
(10) Shared Dispositive Power: 0
________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting
Person:
Stiles A. Kellett, Jr.: 3,051,443
________________________________________________________________
(12) Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares [ ]
________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11):
Stiles A. Kellett, Jr.: 10.4%
________________________________________________________________
(14) Type of Reporting Person: IN
________________________________________________________________
*Includes 862,760 shares owned by Kellett Partners, L.P., a
limited partnership in which Mr. Kellett serves as general
partner. All shares are subject to the terms of the Stockholders
Agreement described in Item 6.
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Item 1. Security and Issuer.
Common stock, $.01 par value per share
Mariner Health Group, Inc.
125 Eugene O'Neill Drive
New London, Connecticut 06320
Item 2. Identity and Background.
(a) Name.
Stiles A. Kellett, Jr.
(b) Residence or Business Address.
200 Galleria Parkway, Suite 1800
Atlanta, Georgia 30339
(c) Present Principal Occupation.
Chairman and Owner, Kellett Investment Corporation
(d) Conviction(s) in Any Criminal Proceeding.
Not Applicable.
(e) Party to Civil Proceeding(s) Pertaining to State or
Federal Securities Laws.
Not Applicable.
(f) Citizenship.
United States of America
Item 3. Source and Amount of Funds or Other Consideration.
2,072,696 of the shares of the common Stock, $.01 par value
per share (the "Common Stock") of Mariner Health Group, Inc.
("Mariner") owned by Mr. Kellett were acquired as consideration
for the merger (the "Merger") of Blue Corporation, a Georgia
corporation and a wholly-owned subsidiary of Mariner ("Blue"),
into and with Convalescent Services, Inc., a Georgia corporation
("CSI"). Prior to the Merger, Mr. Kellett owned 364 shares of the
capital stock of CSI. The remaining 167,500 shares of Common
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Stock beneficially owned by Mr. Kellett not acquired in the
merger consist of 160,000 shares purchased by Mr. Kellett prior
to the Merger in the open market at prices prevailing at the time
of purchase and 7,500 shares subject to currently exercisable
options granted to Mr. Kellett. Mr. Kellett subsequently
transferred 8,628 of his shares to Kellett Partners, L.P., a
Georgia limited partnership, in exchange for an interest in the
partnership. No cash consideration was involved. As general
partner of the partnership Mr. Kellett has voting and dispositive
power over an additional 862,760 shares of Mariner Common Stock
owned by the partnership. Mr. Kellett recently contributed 42,885
shares of his stock to several public charities.
Item 4. Purpose of Transaction.
The shares of Common Stock acquired by Mr. Kellett pursuant
to the merger were acquired solely as consideration for the
Merger and as an investment by Mr. Kellett. In connection with
the merger and pursuant to that certain Stockholders Agreement
dated as of January 9, 1995 by and among Mariner and Stiles A.
Kellett, Jr., Samuel B. Kellett, two trusts for the benefit of
Stiles A. Kellett, Jr.'s children, and two trusts for the benefit
of Samuel B. Kellett's children, as amended (the "Stockholders
Agreement"), Stiles A. Kellett, Jr. was appointed and currently
serves as a member of the Board of Directors of Mariner. Mr.
Kellett transferred 8,628 of his shares to Kellett Partners, L.P.
for estate planning purposes.
Item 5. Interest in Securities of the Issuer.
(a) Aggregate Number and Percentage of Securities
Beneficially Owned.
3,051,443 10.4%
(See Note 1 below)
________________________________________________________________
Note 1:
Includes 2,181,183 shares owned directly by Mr. Kellett; 7,500
shares subject to options owned by Mr. Kellett; and 862,760
shares owned by Kellett Partners, L.P., but for which the voting
power and the investment power is controlled by Mr. Kellett as
the sole general partner of Kellett Partners, L.P.
(b) Number of Shares as to which Reporting Person has:
(i)Sole Power to Vote or Direct the Vote: 3,051,443*
*The total includes 862,760 shares owned by Kellett Partners,
L.P., a limited partnership of which Stiles A. Kellett, Jr. is
general partner, and in that capacity has the voting and
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dispositive power over such shares. The limited partners of the
partnership are the Stiles A. Kellett III and the Barbara
Katherine Kellett trusts. The shares controlled by Stiles A.
Kellett, Jr. are subject to the terms of the Stockholders
Agreement described in Item 6.
(ii) Shared Power to Vote or Direct the Vote: 0
(iii) Sole Power to Dispose or Direct the Disposition
of: 3,051,443*
*The total includes 862,760 shares owned by Kellett Partners,
L.P., a limited partnership of which Stiles A. Kellett, Jr. is
general partner, and in that capacity has the voting and
dispositive power over such shares. The limited partners of the
partnership are the Stiles A. Kellett III and the Barbara
Katherine Kellett Trusts. The shares controlled by Stiles A.
Kellett, Jr. are subject to the terms of the Stockholders
Agreement described in Item 6.
(iv) Shared Power to Dispose or Direct the Disposition
of: 0
(c) Transactions effected during the Past 60 Days.
On August 18, 1997 Mr. Kellett transferred 8,628 shares of
his Mariner stock and William R. Bassett, as trustee of the
Stiles A. Kellett III trust and the Barbara Katherine Kellett
trust, transferred 427,066 shares held by each of these trusts,
to Kellett Partners, L.P., a limited partnership in which Stiles
A. Kellett, Jr. serves as general partner and the two trusts
serve as limited partner, in exchange for interests in the
partnership. On or about October 23, 1997 Stiles A. Kellett, Jr.
transferred as a gift 42,885 shares of his Mariner stock to
several public charitable organizations.
(d) Other Person with Right to Receive or Direct the
Receipt of Dividends from the Proceeds of the Sale of
the Securities.
Not Applicable
(e) Date upon which the Reporting Person Ceased to be the
Beneficial Owner of more than 5% of the Securities.
Not Applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with respect to Securities of the Issuer.
Pursuant to the Stockholders Agreement, the Stockholders,
acting through their designated agent (the "Stockholders Agent")
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may designate one nominee for election to the Board of Directors
of Mariner. Mariner is then obligated to use all reasonable
efforts to cause the person designated by the Stockholders Agent
to be appointed or elected to the Board of Directors of Mariner.
The Stockholders, and any permitted transferees, must vote all
shares of Mariner Common Stock entitled to vote in the election
of directors for the election as directors of all persons
nominated by Mariner's Board of Directors.
In addition to the provisions governing the election of
directors, the Stockholders Agreement (i) limits the ability of
the Stockholders to acquire additional shares of Mariner Common
Stock, (ii) grants to Mariner a right of first refusal to
purchase shares of Common Stock owned by the Shareholders and
(iii) limits the transfer of the shares of Common Stock acquired
by the Stockholders in the Merger.
Item 7. Exhibits.
Second Amended and Restated Stockholders Agreement dated as
of May 30, 1997 by and among Mariner, Stiles A. Kellett, Jr.,
Samuel B. Kellett, the four Kellett children's trusts, Kellett
Partners, L.P., Stiles A. Kellett, III, and Barbara Katherine
Kellett.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
November 5, 1997
______________________________
(Date)
/s/ Stiles A. Kellett, Jr.
______________________________
Stiles A. Kellett, Jr.
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Second Amended and Restated Stockholders Agreement
dated as of May 30, 1997 (the "Agreement") by and among
Mariner Health Group, Inc., a Delaware Corporation ("Mariner"),
and Stiles A. Kellett, Jr., a resident of the State of Georgia,
Samuel B. Kellett, a resident of the State of Georgia,
William R. Bassett , as Trustee of Samuel B. Kellett, Jr.
Irrevocable Trust Dated 11/1/91, William R. Bassett , as
Trustee of Charlotte Rich Kellett Irrevocable Trust Dated
11/1/91, William R. Bassett , as Trustee of Stiles A.
Kellett Irrevocable Trust Dated 11/1/91, William R.
Bassett , as Trustee of Barbara Katherine Kellett Irrevocable
Trust Dated 11/1/91, Kellett Partners, L.P., a Georgia Limited
Partnership (the "Partnership"), Stiles A. Kellett III, a
resident of the State of Georgia, and Barbara Katherine Kellett,
a resident of the State of Georgia (collectively, the
"Stockholders"):
WITNESSETH:
WHEREAS, Mariner entered into an Agreement and Plan of
Merger dated as of January 9, 1995 (the "Merger Agreement") with
Blue Corporation and Convalescent Services, Inc. ("CSI"),
pursuant to which Blue Corporation, a Georgia corporation and a
wholly owned subsidiary of Mariner (the "Company"), merged with
and into CSI on January 2, 1996 (the "Merger");
WHEREAS, the Stockholders, who were all of the stockholders
of CSI, were issued shares of Common Stock, par value $.01 per
share, of Mariner (the "Mariner Common") in the Merger; and
WHEREAS, in order to induce Mariner to enter into the Merger
Agreement, the Stockholders entered into an Amended and Restated
Stockholders Agreement dated as of May 24, 1995, as amended:
WHEREAS, certain of the Stockholders now desire to
become partners in the Partnership and transfer a total of
862,760 shares of their Voting Securities (as defined below), in
the amounts set forth on Schedule I hereto, to the
Partnership;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Mariner and the Stockholders agree as
follows:
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ARTICLE I
DEFINITIONS AND EFFECTIVENESS
1.1 Common Definitions. Unless otherwise defined in this
Agreement, capitalized terms used in this Agreement that are
defined in the participation Agreement dated as of January 9,
1995, by and among Mariner, the Company, Mariner Supply Services,
Inc., MHC Rehab Corp., CSI, Convalescent Supply Services, Inc.,
Meadow Rehab Corp. and the Stockholders as amended by the
Amendment Agreement dated as of May 24, 1995 and the Second
Amendment Agreement dated as of December 29, 1995 (as
amended, the "Participation Agreement") shall have the meanings
assigned to them in the Participation Agreement, and the rules of
construction and documentary conventions set forth in the
participation Agreement shall apply to this Agreement.
1.2 Certain Definitions. (a) For purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Transfer" means any offer to sell, sale, assignment,
pledge, transfer, contract to sell, grant of any option or other
right to purchase, grant of any ownership interest, or other
disposition or change of legal, record or beneficial ownership,
whether direct or indirect, voluntary or involuntary.
"Voting Power" means the total voting power of the
outstanding Voting Securities of Mariner.
1.3 Additional Definitions. Each of the following terms
is defined in the Section set forth opposite such term:
TERM SECTION
Acceptance Notice 3.3
Acquirors 3.3
Agreement Recitals
CSI Recitals
Equity Transaction 3.3
Equivalent Terms 3.3
First Refusal Notice 3.3
First Refusal Terms 3.3
Group 3.1
Limit Percent 3.1
Lock-Up Shares 3.5
Mariner Recitals
Mariner Common Recitals
Merger Recitals
Participation Agreement 1.1
Partnership Recitals
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Right of First Refusal 3.3
Voting Securities 2.3
1.4 Effectiveness. This Agreement shall become effective as
of the execution and delivery of this Agreement by the parties
hereto.
ARTICLE II
ELECTION OF DIRECTORS
2.1 Designation of Director. (a) From and after the
Closing, the Stockholders Agent shall have the right to designate
one Person of the Stockholders Agent's choice for appointment or
nomination for election to Mariner's Board of Directors and,
subject to the appointment or election of such Person in
accordance with Mariner's certificate of incorporation and
bylaws, to serve until his successor (designated by the
Stockholders Agent) is duly appointed or elected. The
Stockholders Agent shall not designate a Person to be appointed
or nominated for election to Mariner's Board of Directors who is
not reasonably acceptable to Mariner. At any time a Person who
was a designee of the Stockholders Agent at the time of his
appointment or election to Mariner's Board of Directors remains a
member of Mariner's Board of Directors, the Stockholders Agent
shall not have the right to designate another Person to be
appointed or nominated for election to Mariner's Board of
Directors.
(b) At any time the Stockholders Agent is entitled to
designate a Person to be appointed or nominated for election to
Mariner's Board of Directors and desires to exercise such rights,
the Stockholders Agent shall provide Mariner with reasonable
notice under the circumstances of its desire to exercise such
rights. The Stockholders Agent hereby designates Stiles A.
Kellett, Jr. for appointment or nomination as its initial
designee for nomination for election or appointment as a director
of Mariner under this Agreement at this time.
(c) In the event that any such designee of the
Stockholders Agent shall cease to serve as a director for any
reason, the vacancy resulting thereby shall be filled by a
designee of the Stockholders Agent.
2.2 Mariner's Efforts. Mariner shall use all reasonable
efforts to cause the Person designated by the Stockholders Agent
pursuant to this Agreement to be appointed or elected to its
Board of Directors at all appropriate times. Subject to the
exercise of their fiduciary duties, the Board of Directors of
Mariner shall appoint or nominate for election as a director of
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Mariner by the stockholders of Mariner the Person designated by
the Stockholders Agent pursuant to this Agreement.
2.3 Voting. From and after the Closing, the Stockholders
shall (i) attend (either in person or by proxy), and vote all
shares of Mariner Common or other securities of Mariner entitled
to vote generally in the election of directors of Mariner (the
"Voting Securities") held or owned by it at each meeting (annual
or special) of the stockholders of Mariner involving the election
of directors of Mariner, and (ii) execute written consents with
respect to all Voting Securities held or owned by it, in each
case for the election as directors of Mariner all Persons
nominated by Mariner's Board of Directors to be directors of
Mariner.
ARTICLE III
STOCK RELATED MATTERS
3.1 Ownership Increases. (a)(I) From and after the date of
this Agreement, Stiles A. Kellett, Jr.,
William R.
Bassett , as Trustee of Stiles A. Kellett III Irrevocable
Trust Dated 11/1/91, William R. Bassett , as Trustee of
Barbara Katherine Kellett Irrevocable Trust Dated 11/1/91,
the Partnership, Stiles A. Kellett III, Barbara Katherine
Kellett and their Affiliates shall not, directly, indirectly
or as part of a "group" (as defined in Section 13(d)(3) of the
Exchange Act and Rule 13d-5 promulgated thereunder) (a "Group"),
acquire ownership (whether of record or beneficially) of any
Voting Securities (except by way of stock dividends or other
distributions made available to holders of Voting Securities of
Mariner generally) without the prior written consent of Mariner,
if after such acquisition the aggregate percentage ownership of
such Stockholders and their Affiliates of the Voting Power of
Mariner (together with, in the case of any acquisition of Voting
Securities prior to the Closing, the number of Voting Securities
to be issued to such Stockholders at the Closing pursuant to the
Merger Agreement) would be in excess of twelve and one-half
percent (12.5%) (the "Limit Percent").
(ii) From and after the date of this Agreement, Samuel
B. Kellett, William R. Bassett as Trustee of the Samuel B.
Kellett, Jr. Irrevocable Trust Dated 11/1/91 and William R.
Bassett as Trustee of Charlotte Rich Kellett Irrevocable
Trust Dated 11/1/91 and their Affiliates shall not, directly,
indirectly or as part of Group, acquire ownership (whether of
record or beneficially) of any Voting Securities (except by way
of stock dividends or other distributions made available to
holders of Voting Securities of Mariner generally) without the
prior written consent of Mariner, if after such acquisition the
aggregate percentage ownership of such Stockholders and their
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Affiliates of the Voting Power of Mariner (together with, in the
case of any acquisition of Voting Securities prior to the
Closing, the number of Voting Securities to be issued to such
Stockholders at the Closing pursuant to the Merger Agreement)
would be in excess of the Limit Percent.
(b) The Stockholders shall not be required to dispose
of any Voting Securities of Mariner which, when acquired, did not
cause the Stockholders' interest in the Voting Power of Mariner
to exceed the Limit Percent, regardless of whether such holdings
exceed the Limit percent at a later date, and whether such change
results from a recapitalization by Mariner or a repurchase of
Mariner's Voting Securities by Mariner or otherwise.
3.2 Certain Actions. From and after the date of this
Agreement, the Stockholders will not, and will not permit their
Affiliates to:
(a) make, or take any action to solicit, initiate or
encourage, any offer or proposal for, or any indication of
interest in, a merger, consolidation or other business
combination involving Mariner or any subsidiary of Mariner or the
acquisition of any equity interest in, or a substantial portion
of assets of, Mariner or any subsidiary of Mariner;
(b) "solicit," or become a "participant" in any
"solicitation" of, any "proxy" (as such terms are defined in
Regulation 14A under the Exchange Act) from any holder of Voting
Securities in connection with any vote on any matter, or agree or
announce its intention to vote with any Person undertaking a
"solicitation";
(c) form, join or in any way participate in a Group
with respect to any Voting Securities, other than the Group that
currently exists among the Stockholders and their Affiliates
which will be disclosed in the Stockholder's initial filing of a
Schedule 13D, and any amendments thereto, under the
Exchange Act relating to its ownership of the Voting Securities;
(d) grant any proxies with respect to any Voting
Securities to any Person unless such Proxy specifies that the
Person holding the Proxy shall vote in complete compliance with
the Stockholders Agreement (other than as recommended by the
Board of Directors of Mariner) or deposit any Voting Securities
in a voting trust or enter into any other arrangement or
agreement with respect to the voting thereof; or
(e) propose any amendment to this Agreement that is or
may be required to be publicly disclosed.
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3.3 Right of First Refusal. (a) From and after the Closing,
each Stockholder shall give notice to Mariner (the "First Refusal
Notice") at least 30 business days prior to Transferring, in a
single transaction or series of related transactions, Voting
Securities of Mariner held by such Stockholder or any of its
Affiliates, if such Transfer contemplates the Transfer of Voting
Securities of Mariner representing more than one percent (1%) of
the issued and outstanding Voting Securities of Mariner (each an
"Equity Transaction").
(b) The First Refusal Notice shall specify the identity
of the potential acquirors (the "Acquirors"), the proposed
consideration to be paid for the Voting Securities proposed to be
Transferred, the proposed terms of payment and the time within
which the Stockholder proposes to enter into an agreement to
consummate and to consummate such Equity Transaction, all other
material terms and conditions upon which the Stockholder proposes
to enter into such the Equity Transaction (the "First Refusal
Terms") and the date the First Refusal Notice was sent to
Mariner. Such notice shall include a representation of the
Stockholder to the effect that each Acquiror has made a bona fide
offer to consummate such Equity Transaction and is an independent
unrelated third party.
(c) The First Refusal Notice shall constitute an
irrevocable offer (the "Right of First Refusal") to Mariner to
enter into such Equity Transaction with the Stockholder with
respect to all of the Voting Securities of Mariner proposed to be
Transferred in the Equity Transaction on the First Refusal Terms
or other terms specified by Mariner which include cash to the
same extent as the First Refusal Terms and in other respects are
economically equivalent to the First Refusal Terms (the
"Equivalent Terms"). The Right of First Refusal shall be
exercisable by written notice from mariner as to all of the
Voting Securities of Mariner proposed to be Transferred in the
Equity Transaction (the "Acceptance Notice") within 15 business
days after the First Refusal Notice is sent. The Acceptance
Notice from Mariner shall specific such Equivalent Terms, if any.
(d) If Mariner exercises the Right of First Refusal,
the Stockholder shall enter into the Equity Transaction with
Mariner on the First Refusal Terms or, if such terms are
specified by Mariner, on Equivalent Terms. The closing of such
Equity Transaction shall take place on the later of (i) 30 days
following the date the Acceptance Notice is given and (ii) the
second business day after Mariner and the Stockholder shall have
obtained or made all consents, approvals, orders, licenses,
permits and authorizations of, and registrations, declarations
and filings with, any Governmental Authority or any other Person
required to be obtained or made in connection with the
consummation of such Equity Transaction, or on such other date as
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shall be mutually acceptable to Mariner and the Stockholder. The
Stockholder and Mariner shall use all reasonable efforts to
satisfy the conditions of the preceding sentence.
(e) In the event of a dispute between Mariner and the
Stockholder concerning the economic equivalence of any Equivalent
Terms and the First Refusal Terms, the determination of the
equivalence of such terms shall be made by an independent,
nationally recognized investment banking firm selected by Mariner
and consented to by the Stockholder, which consent shall not be
unreasonably withheld. The Stockholder and Mariner shall
cooperate fully in assisting any such Investment banking firm in
making its determination, including by giving such firm full
access to the books and records of Mariner and the Stockholder
and providing it with such other information as it may request in
connection with such determination. The parties shall share
equally the cost of any such investment banking firm.
(f) If Mariner does not exercise the Right of First
Refusal with respect to an Equity Transaction, the Stockholder
may, within six months following the expiration of the period for
the exercise of the Right of First Refusal, consummate such
Equity Transaction with one of the Acquirors upon terms and
conditions no more favorable to such Acquiror than the First
Refusal Terms.
(g) If the Stockholder becomes obligated to sell any
Voting Securities of Mariner owned, or held for the benefit of,
it to Mariner under this Section 3.3 and fails to deliver such
Voting Securities in accordance with the terms of this Section
3.3, Mariner may, at its option, in addition to all other
remedies it may have, send to the Stockholder the purchase price
for such shares as is specified in this Section 3.3. Thereupon,
Mariner upon written notice to the Stockholder, (a) shall cancel
on its books the certificates representing the Voting Securities
to be sold and (b) if Mariner's rights have been assigned to
another Person, new certificates representing such Voting
Securities, and thereupon all of the Stockholder's rights in and
to such Voting Securities shall terminate.
(h) Notwithstanding anything to the contrary in this
Section 3.3, this Section 3.3 shall not apply to Transfers of
Voting Securities in an offering made pursuant to an effective
registration statement under the Securities Act or in
transactions pursuant to Rule 144 or Rule 145 under the
Securities Act, if the Transferee in such Transfer is not known
to the Stockholders.
(i) Notwithstanding anything to the contrary in this
Agreement, Mariner may assign its rights under this Section 3.3
to any Person without obtaining any consent, approval or waiver
of the Stockholder.
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3.4 Compliance with the Securities Act. The Stockholders
shall not sell, pledge, transfer or otherwise dispose of the
shares of Mariner Common to be received by it in the Merger
except in compliance with the applicable provisions of the
Securities Act.
3.5 Restriction on Sales of Mariner Common. (a) The
Stockholders shall not Transfer any shares of Mariner Common, or
any securities convertible into or exchangeable for shares of
Mariner Common, acquired in the Merger or otherwise (before or
after the Closing), that are beneficially owned (as defined in
the rules and regulations of the Commission) by the Stockholders
(the "Lock-Up Shares") other than as follows:
(i) During the period commencing on May 24,
1995 and ending on May 24, 1997 , none of the Lock-Up
Shares shall be Transferred;
(ii) During the period commencing on May 24,
1997 and ending on May 24, 1998 , the Stockholders and
their Affiliates as a Group shall not Transfer in the aggregate
more than fifty percent (50%) of the Lock-Up Shares; and
(iii) After May 24, 1998 , nothing in this
Agreement shall restrict its ability to offer to Transfer any
Lock-Up Shares.
(b) Notwithstanding the foregoing, if the Stockholder
is an individual, he may transfer any or all of the Lock-Up
Shares either during his lifetime or on death by gift, will or
intestate succession to his immediate family or to a trust, the
beneficiaries of which are exclusively such Stockholder and/or
members of his immediate family; provided, however, that in any
such case it shall be a condition to the Transfer that the
transferee execute an agreement stating that the transferee is
receiving and holding the Lock-Up Shares subject to the
provisions of this Agreement, and there shall be no further
Transfer of such Lock-Up Shares except in accordance with this
Agreement.
(c) If a Stockholder is an individual, he can
Transfer any or all of his Lock-Up Shares to the Partnership.
3.6 Agreement of Transferees. If any of the Stockholders
Transfers any Voting Securities of Mariner held by it to an
Affiliate of the Stockholders, such transferee (i) shall acquire
such Voting Securities subject to the requirements of this
Article III and (ii) shall enter into an agreement with Mariner
evidencing its obligations under this Article III, which
agreement shall be in form and substance reasonably satisfactory
to Mariner.
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3.7 Certain Transfers of Mariner Voting Securities.
Notwithstanding anything to the contrary in this Article III, any
Stockholder may pledge any Voting Securities of Mariner held by
such Stockholder to a nationally recognized financial institution
not affiliated with any of the Stockholders as collateral to
support borrowings by such Stockholder from such financial
institution. If a Stockholder so pledges any Voting Securities of
Mariner to such financial institution, such Stockholder shall not
take any action or fail to take any action that could constitute,
or result in, a default or an event of default under any
agreement or instrument relating to the borrowings secured by
such pledge. Notwithstanding anything to the contrary in Section
3.5 of this Agreement, if such financial institution should
become the owner of any Voting Securities of Mariner as a result
of a foreclosure on such collateral, such financial institution
may Transfer such Voting Securities in compliance with the
applicable provisions of the Securities Act; provided, however,
that Sections 3.2, 3.3, 3.4 and 3.6 of this Agreement shall
continue to apply to such Voting Securities held by such
financial institution.
3.8 Certain Actions of the Partnership. Without prior
written consent of Mariner:
(a) The Partnership shall not substitute or change any
of the partners of the Partnership or admit any Person to the
Partnership as a partner who is not currently a partner of the
Partnership unless such Person is a member of the immediate
family of an individual Stockholder, provided, however, that in
any such case it shall be a condition to the substitution, change
or admission of any permitted Person, that such Person execute an
agreement stating that the Person is becoming a Stockholder and a
partner of the Partnership subject to this Agreement, and there
shall be no further substitution, change or admission of partners
of the Partnership except in accordance with this Agreement; and
(b) The partners of the Partnership shall not Transfer,
of record or beneficially, any ownership or other interest in the
Partnership other than Transfers to other Stockholders unless
such Transfer is to a member of the immediate family of an
individual Stockholder, provided, however, that in any such case
it shall be a condition to the Transfer that such Person to whom
ownership or other interest in the Partnership is being
transferred execute an agreement stating that the Person is
becoming a Stockholder and a partner of the Partnership subject
to this Agreement, and there shall be no further substitution,
change or admission of partners of the Partnership except in
accordance with this Agreement.
3.9 Consent to Transfer of Voting Securities to the
Partnership. Mariner hereby consents to the transfer to the
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Partnership of certain of the Voting Securities in the amounts,
and by those Stockholders, as set forth on Schedule I to this
Agreement.
3.10. Membership in the Partnership. Stiles A. Kellett,
Jr., William R. Bassett as Trustee of the Stiles A. Kellett III
Irrevocable Trust Dated, 11/1/91, William R. Bassett as Trustee
of the Barbara Katherine Kellett Irrevocable Trust Dated 11/1/91,
Stiles A. Kellett III and Barbara Katherine Kellett hereby
represent and warranty to Mariner that they are the only partners
of the partnership and that no other Person has any ownership or
other interest, of record or beneficial, in the Partnership.
ARTICLE IV
MISCELLANEOUS
4.1 Termination. The rights and obligations of the parties
under this Agreement shall terminate (i) with respect to Article
II of this Agreement on the date on which the Voting Securities
of Mariner held or owned by the Stockholders represents less than
five percent (5%) of the Voting Power; and (ii) with respect to
Article III of this Agreement (A) in the case of Stiles A.
Kellett, Jr., William R. Bassett , as Trustee of Stiles A.
Kellett III Irrevocable Trust Dated 11/1/91, William R.
Bassett , as Trustee of Barbara Katherine Kellett Irrevocable
Trust Dated 11/1/91, the Partnership, Stiles A. Kellett III
and Barbara Katherine Kellett, on the date on which the
Voting Securities of Mariner held or owned collectively by such
Stockholders represents less than two and one-half percent (2.5%)
of the Voting Power and (B) in the case of Samuel B. Kellett,
William R. Bassett , as Trustee of Samuel B. Kellett, Jr.
Irrevocable Trust Dated 11/1/91 and William R. Bassett , as
Trustee of Charlotte Rich Kellett Irrevocable Trust Dated
11/1/91, on the date on which the Voting Securities of Mariner
held or owned collectively by such Stockholders represents less
than two and one-half percent (2.5%) of the Voting Power.
4.2 Legend. Each certificate representing Voting Securities
of Mariner shall bear the following legend, until such time as
the Voting Securities of Mariner represented thereby are no
longer subject to the provisions hereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDERS
AGREEMENT AMONG MARINER AND CERTAIN HOLDERS OF ITS OUTSTANDING
CAPITAL STOCK. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF MARINER.
4.3 Expenses. All fees and expenses incurred by Mariner in
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connection with this Agreement and the transactions contemplated
hereby will be borne by Mariner. All fees and expenses incurred
by the Stockholders and any of their Affiliates in connection
with this Agreement and the transactions contemplated hereby will
be borne by the Stockholders.
4.4 Law Governing. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of Delaware, without giving effect to the principles of conflicts
of law thereof.
4.5. Stockholders Agent. (a) The Stockholders shall be
represented for certain purposes under this Agreement and the
other Operative Agreements by the Stockholders Agent. By
executing this Agreement, the Stockholders irrevocably
constitutes and appoints the Stockholders Agent as the true and
lawful agent and attorney-in-fact of such Person to act on behalf
of such Person as provided in this Agreement, including to take
any action deemed by it necessary or appropriate to carry out the
provisions of, and to determine the rights of such Person under,
this Agreement and the other Operative Agreements or in
connection with the transactions contemplated hereby and thereby.
The Stockholders Agent is so designated as the sole and exclusive
agent of the Stockholders for all purposes related to this
Agreement and the other Operative Agreements or in connection
with the transactions contemplated hereby and thereby, including
(i) service of process upon any of such Person, (ii) receipt of
all notices on behalf of any of such Person, (iii) amending and
modifying this Agreement and the other Operative Agreements or
waiving provisions of this Agreement and the other Operative
Agreements; provided, however, that the Stockholders Agent may
not change the number of shares of Mariner Common to be received
by each Stockholder and (iv) representation of any of the
Stockholders with respect to the Merger or any litigation,
arbitration or other proceeding in respect of this Agreement and
the other Operative Agreements or in connection with the
transactions contemplated hereby and thereby, including the
defense, settlement or compromise of any claim, action or
proceeding for which any Stockholder may be obligated to
indemnify any indemnified party pursuant to Article XI of the
Participation Agreement or which may be brought against any
Stockholder to enforce such indemnify. The Stockholders shall act
only through the Stockholders Agent.
(b) From and after the date hereof, Mariner, the
Company, MSSI and MHC Rehab shall be entitled to rely on the
Stockholders Agent's authority as the agent of the Stockholders
for all purposes contemplated by this Agreement and the other
Operative Agreements and in connection with the transactions
contemplated hereby and thereby, and shall have no liability for
any such reliance.
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(c) By executing and delivering this Agreement, the
Stockholders hereby ratifies and confirms, and hereby agrees to
ratify and confirm, any action taken by the Stockholders Agent in
the exercise of the power-of-attorney granted to the Stockholders
Agent pursuant to this Section 4.5, which power-of-attorney,
being coupled with an interest of the Stockholders Agent,
Mariner, the Company, MSSI and MHC Rehab, is irrevocable and will
survive the death, incapacity or incompetence of any such Person
who is a natural person.
4.6 Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall
be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered by the parties on the date first above written.
MARINER HEALTH GROUP, INC.
By: /s/Arthur W. Stratton
__________________________________
Arthur W. Stratton, Jr.
Chief Executive Officer
/s/ Stiles A. Kellett, Jr.
__________________________________
Stiles A. Kellett, Jr.
/s/ Samuel B. Kellett
__________________________________
Samuel B. Kellett
WILLIAM R. BASSETT, AS TRUSTEE OF
SAMUEL B. KELLETT, JR. IRREVOCABLE
TRUST DATED 11/1/91
By: /s/ William R. Bassett
__________________________________
William R. Bassett, as Trustee
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WILLIAM R. BASSETT, AS TRUSTEE OF
CHARLOTTE RICH KELLETT IRREVOCABLE
TRUST DATED 11/1/91
By: /s/ William R. Bassett
__________________________________
William R. Bassett, as Trustee
WILLIAM R. BASSETT, AS TRUSTEE OF
STILES A. KELLETT III IRREVOCABLE
TRUST DATED 11/1/91
By: /s/ William R. Bassett
__________________________________
William R. Bassett, as Trustee
WILLIAM R. BASSETT, AS TRUSTEE OF
BARBARA KATHERINE KELLETT
IRREVOCABLE TRUST DATED 11/1/91
By: /s/ William R. Bassett
__________________________________
William R. Bassett, as Trustee
KELLETT PARTNERS, L.P.
By: /s/ Stiles A. Kellett
__________________________________
Stiles A. Kellett, Jr.
Its Sole General Partner
/s/ Stiles A. Kellett III
___________________________________
Stiles A. Kellett III
/s/ Barbara Katherine Kellett
___________________________________
Barbara Katherine Kellett
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Schedule I
Number of Voting Securities
to be Transferred to the
Name of Stockholder Partnership
___________________ ___________________________
Stiles A. Kellett, Jr. 8,628
William R. Bassett as Trustee
of the Stiles A. Kellett III
Irrevocable Trust Dated 11/1/91 427,066
William R. Bassett as Trustee
of the Barbara Katherine Kellett
Irrevocable Trust Dated 11/1/91 427,066
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