SUBSCRIPTION
AGREEMENT, dated as of May 15, 2007 (this “
Agreement ”) by and among Healthcare Services, Inc., a
Delaware corporation (the “ Company ”) and
Ascension Health, a Missouri not-for-profit corporation (“
Ascension ” or “ Purchaser
”).
WHEREAS, Purchaser
currently owns shares of the Company’s Series B Common
Stock subject to that certain Restricted Stock Agreement dated as
of November 7, 2004 between Ascension Health and the Company
(the “ Restricted Stock Agreement ”);
and
WHEREAS,
Purchaser, wishes to purchase, and the Company wishes to sell to
Purchaser, 669,284 additional shares of the Company’s
Series B Common Stock, par value $0.01 per share (the “
Additional Series B Stock ” or the “
Purchased Shares ”) on the terms and subject to the
conditions set forth in this Agreement and those of the Restricted
Stock Agreement.
NOW THEREFORE, in
consideration of the mutual covenants of the parties as hereinafter
set forth and other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the parties
hereto, intending to be legally bound hereby, agree as
follows:
Section 1.01. Issuance, Sale and
Delivery of Shares . Subject to the terms and conditions of
this Agreement, and the Restricted Stock Agreement, at the Closing
(as defined in Section 1.02), the Company agrees to issue and
sell to each Purchaser, and Purchaser hereby agrees to purchase
from the Company, 669,284 shares, at the aggregate purchase price
of $5,488,128 (“ Purchase Price for Purchased Shares
”).
Section 1.02. Closing . The closing
shall take place at the offices of Katten Muchin Rosenman LLP, 525
W. Monroe Street, Chicago, Illinois 60661-3693, at 10:00 a.m.,
Central time, on June 7, 2007, or at such other location, date
and time as may be agreed upon between the Purchaser and the
Company (such closing being called the “ Closing
” and such date and time being called the “ Closing
Date ”). At the Closing, the Company shall issue and
deliver to Purchaser a stock certificate in definitive form,
registered in the name of Purchaser, representing the Purchased
Shares being purchased by it at the Closing. As payment in full for
the Purchased Shares being purchased by it under this Agreement,
and against delivery of the stock certificates therefor as
aforesaid, on the Closing Date Purchaser shall transfer the amount
of $5,488,128, to the account of the Company by wire transfer of
immediately available funds.
COMPANY REPRESENTATIONS AND
WARRANTIES
The Company
hereby represents and warrants to the Subscriber as of the date
hereof that:
Section 2.01. Organization and Good
Standing . The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own
its properties and assets and to carry on its business as now
conducted and as presently proposed to be conducted.
Section 2.02. Validity of Securities
. The Securities, when issued in accordance with the terms of this
Agreement, will be duly authorized, validly issued, fully paid and
nonassessable.
Section 2.03. Capitalization. The
outstanding capital of the Company, on a fully diluted basis, as of
12-31-06 is set forth on Exhibit A hereto and there have been
no changes to the outstanding capital since that time, other than
the transaction contemplated by this Subscription
Agreement.
Section 2.04. Due Authorization .
All action on the part of the Company necessary for the
authorization, execution and delivery of, and the performance of
all obligations of the Company under, this Agreement has been
taken.
Section 2.05. Valid Issuance of
Purchased Shares . The Purchased Shares which are being
purchased by Purchaser hereunder, when issued, sold and delivered
in accordance with the terms hereof for the consideration expressed
herein, will be duly and validly issued, fully paid and
nonassessable and, based in part upon the representations of
Purchaser in this Agreement, will be issued in compliance with all
applicable federal and state securities laws.
Section 2.06. Governmental Consents
. Assuming the accuracy of the representations made by the
Purchaser in Article III of this Agreement, no consent,
approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any
federal, state, local or provincial governmental authority on the
part of the Company is required in connection with the consummation
of the transactions contemplated by this Agreement, except such
filings as have been made prior to the Closing, or such
post-closing filings as may be required under Rule 506 of
Regulation D of the Securities Act of 1933, as amended, and
applicable state securities laws, which will be timely filed within
the applicable periods therefore
Section 2.07. Litigation . There is
no action, suit, proceeding or investigation pending or currently
threatened in writing against the Company which questions the
validity of this Agreement or the right of the Company to enter
into it, or to consummate the transactions contemplated hereby, or
which might result, either individually or in the aggregate, in any
material adverse changes in the assets, condition, affairs or
prospects of the Company, financially or otherwise, or any change
in the current equity ownership of the Company, nor is the Company
aware that there is any basis for the foregoing. The Company is not
a
2
party or
subject to the provisions of any order, writ, injunction, judgment
or decree of any court or government agency or
instrumentality.
Section 2.08. Compliance with Other
Instruments . The Company is not in violation or default of any
provisions of its Restated Articles or Amended and Restated Bylaws
or in any material respect of any provision of any mortgage,
indenture, agreement, instrument, or contract to which it is a
party or by which it is bound, or to its knowledge, of any federal
or state judgment, order, writ, decree, statute, rule, or
regulation applicable to the Company. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in any such
violation or be in material conflict with or constitute, with or
without the passage of time and giving of notice, either a material
default under any such provision, instrument, judgment, order,
writ, decree or contract or an event which results in the creation
of any material lien, charge or encumbrance upon any assets of the
Company.
Section 2.09. Title to Property and
Assets . The Company owns its property and assets free and
clear of all mortgages, liens, loans and encumbrances, except such
encumbrances and liens which arise in the ordinary course of
business and do not materially impair the Company’s ownership
or use of such property or assets. With respect to the property and
assets it leases, the Company is in compliance with such leases
and, to its knowledge, holds a valid leasehold interest free of any
liens, claims or encumbrances.
Section 2.10. Insurance . The
Company has in full force and effect valid policies of
workers’ compensation insurance and of insurance with respect
to their properties and business of the kinds and amounts not less
than is customarily obtained by corporations of similar size
engaged in the same or similar businesses and similarly situated,
including, without limitation, insurance against loss, damage,
fire, theft, public liability and other risks.
Section 2.11. Obligations to Related
Parties . Except as provided in the Schedule of Exceptions,
there are no obligations of the Company to officers, directors,
stockholders, or employees of the Company or its affiliates other
than (i) for payment of salary for services rendered,
(ii) reimbursement for reasonable expenses incurred on behalf
of the
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