THIS SHARE
EXCHANGE AGREEMENT (“ Agreement ”) is entered
into as of February ___, 2009 by and among Healthcare Services,
Inc., a Delaware corporation (the “ Company ”)
and
(the “ Stockholder ”).
A. The common
stock of the Company is divided into two series, each with a par
value of $.01 per share: Series B Common Stock, which has
voting rights and Series C Common Stock, which has no voting
rights.
B. The
Stockholder owns
shares of the Company’s Series C Common
Stock.
C. The
Company has offered the Stockholder the opportunity to exchange
such shares for an equivalent number of shares of its Series B
Common Stock (the “ Exchange ”).
NOW, THEREFORE, in
consideration of the mutual promises and agreements contained
herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
(a) Subject to the
terms and conditions set forth in this Agreement, the Stockholder
hereby transfers, assigns and delivers all of the
Stockholder’s right, title and interest in and to the
shares of Series C Common Stock owned by the Stockholder
(the “ Transferred Shares ”), free and clear of
all liens, pledges, encumbrances, security interests, claims and
equities of every kind other than those arising under the Company
Documents.
(b) In exchange
for such Transferred Shares, the Company hereby issues, transfers,
assigns and delivers to the Stockholder, and the Stockholder hereby
accepts that
shares of Series B Common Stock (collectively, the
“ New Shares ”).
(c) The
Stockholder acknowledges and agrees that the Stockholder, by virtue
of the Exchange, shall not be relieved of any restriction,
limitation, obligation or other constraint upon any Transferred
Shares owned or held by the Stockholder and that all New Shares
issued to the Stockholder shall be subject to all restrictions,
limitations, obligations and other constraints to which the
Transferred Shares were subject.
(d) The
Stockholder has executed and delivered to the Company, in
connection with this Agreement, that certain Third Amended and
Restated Stockholders’ Agreement, dated as of the date
hereof, by and among the Company, Accretive LP, Oak
Hill, Tolan,
Accretive V and the other parties signatory thereto (the “
Stockholders’ Agreement ”).
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2.
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Stockholder Representations,
Warranties and Agreements . The Stockholder hereby represents
and warrants to the Company that:
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(a)
Capacity . The Stockholder has sufficient legal capacity to
execute this Agreement.
(b) Due
Authorization; No Breach . The Stockholder has duly authorized,
executed and delivered this Agreement, and the Stockholder is not a
party to, or bound by, any contract, charter, agreement, mortgage,
deed of trust or other instrument, nor to the Stockholder’s
knowledge, is the Stockholder subject to any order or license of
any governmental authority or any provision of law, under the terms
of which performance by the Stockholder according to the terms of
this Agreement shall be a default, breach, event of acceleration,
or grounds for termination, or whereby the timely performance by
the Stockholder according to the terms of this Agreement may be
prohibited, prevented or delayed.
(c) Title to
Transferred Shares . The Transferred Shares to be transferred
by the Stockholder represent all of the shares of Series C
Common Stock owned by the Stockholder prior to the consummation of
the Exchange. Each of the Transferred Shares was validly issued,
and is a fully paid and non-assessable share of Series C
Common Stock of the Company, owned beneficially and of record by
the Stockholder, free and clear of all liens, pledges,
encumbrances, security interests, claims and equities of every
kind, except for those imposed by the Company Documents. Other than
the Company Documents, there are no agreements, arrangements,
options, warrants, calls, rights or commitments of any character
relating to the sale, purchase, redemption or other transfer of the
Transferred Shares to be sold, assigned, conveyed, transferred and
delivered by the Stockholder to the Company hereunder. The
Stockholder has sole voting power and sole power of disposition and
sole power to agree to all of the matters set forth in this
Agreement with respect to all of the Transferred Shares, with no
limitations, qualifications or restrictions on such rights and
powers (other than as set forth in the Company Documents), and the
Stockholder has not granted and will not grant such rights and
powers to any other Person.
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(d) Investment
Representations .
(i)
The Stockholder confirms that the New Shares were not offered to
the Stockholder by any means of general solicitation or general
advertising.
(ii)
The Stockholder understands that the New Shares have not been
registered under the securities laws of any state, under the
Securities Act of 1933, as amended, or under the securities laws of
any other country and are offered in reliance on exemptions
therefrom, that the class of stock of the Company has not been
approved or disapproved by the Securities and Exchange Commission,
by any other federal or state agency or by any other equivalent
foreign agency.
(iii)
The Stockholder acknowledges that the Stockholder has been advised
to consult with the Stockholder’s own attorney regarding
legal matters concerning the Company and to consult with his own
tax advisor regarding the tax consequences of the Exchange to the
Stockholder.
(e) The
Stockholder acknowledges and agrees that the Company is only
entering into this Agreement with the Stockholder because the
Stockholder is entering into the Stockholders’ Agreement, and
that the Company would not have entered into this Ag
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