EXHIBIT 4.3
AMENDMENT NO. 1 TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amendment No. 1 to Amended and Restated Stockholders
Agreement (the "Amendment") is entered into effective as of August 18, 2003 by
and among Fountain View, Inc., a Delaware corporation (the "Company"), Heritage
Fund II, L.P., a Delaware limited partnership ("Heritage"), Robert Snukal ("RS")
and Sheila Snukal ("SS", and together with RS, the "Snukals").
INTRODUCTION
Reference is hereby made to that certain Stockholders
Agreement dated as of March 27, 1998 (the "Stockholders Agreement") among the
Company, Heritage, Heritage Investors II, L.L.C., Heritage Fund II Investment
Corporation, RS, SS, William Scott and certain other parties signatories
thereto, as amended May 4, 1998 by and among the Company, Heritage, Baylor
Health Care System, and Buckner Foundation (as so amended, the "First Amended
Agreement"). Reference is hereby made to that certain Amended and Restated
Stockholders Agreement effective as of August 15, 2003 (the "Amended and
Restated Stockholders Agreement") among the Company and the individuals and
entities listed on Schedule A attached thereto.
On October 2, 2001, the Company filed a petition in the United
States Bankruptcy Court for the Central District of California, Los Angeles
Division (the "Bankruptcy Court") seeking relief under Chapter 11 of the United
States Bankruptcy Code, 11 U.S.C. Section 101-1130 (the "Bankruptcy Code"). The
Amended and Restated Stockholders Agreement amended and restated the First
Amended Agreement and was adopted pursuant to the Debtors' Third Amended Joint
Plan of Reorganization, dated April 22, 2003, (the "Reorganization Plan"),
confirmed by an order (the "Confirmation Order") of the Bankruptcy Court on July
10, 2003.
Pursuant to that certain Stipulation between (i) the Debtors,
and (ii) Robert Snukal and Sheila Snukal (the "Stipulation"), confirmed by an
order of the Bankruptcy Court on August 19, 2003, RS and SS have agreed and
consented to amend the Amended and Restated Stockholders Agreement to provide
that the Snukals may designate only one director to serve on the Board of
Directors of the Company, without regard to the total size of the Board.
Capitalized terms used herein and not otherwise herein defined
shall have the respective meanings given to them in the Amended and Restated
Stockholders Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
herein expressed, the parties hereto hereby agree as follows:
1. RS Director.
a. Section 1.02 (a) of the Amended and Restated
Stockholders Agreement is hereby deleted in its
entirety and replaced with the following:
"RS Director. One nominee of RS (the "RS
Director"), as long as RS holds any shares
of Stock."
b. All references in the Amended and Restated
Stockholders Agreement to "RS Directors" or "any RS
Director" shall hereby be deemed references to the RS
Director.
2. Other Provisions. Except as otherwise expressly provided
herein, all provisions of the Amended and Restated Stockholders Agreement shall
remain in full force and effect.
3. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
4. Facsimile Signatures. This Amendment may be executed by
facsimile transmission and such facsimile will be valid and binding to the same
extent as if it were an original.
5. Governing Law. This Amendment shall be governed by and
interpreted, construed and enforced in accordance with the internal laws of the
Commonwealth of Massachusetts, without giving effect to principles of conflicts
of laws or choice of laws of the State of Massachusetts, and with respect to
matters covered thereby, the General Corporation Law of the State of Delaware.
6. Severability. In the event any one or more of the provisions
contained in this Amendment shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Amendment.
7. Entire Agreement. This Amendment, together with the Amended
and Restated Stockholders Agreement, constitutes the entire agreement between
the parties hereto pertaining to the subject matter hereof, and may not be
changed or modified except by an agreement in writing signed by the parties in
accordance with the provisions of the Amended and Restated Stockholders
Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
FOUNTAIN VIEW, INC., a Delaware
corporation
By: \s\ Roland Rapp
--------------------------------
Name: Roland G. Rapp
Title: Secretary
HERITAGE FUND II, L.P., a Delaware limited
partnership
By: HF Partners II, LLC, its General Partner
By: \s\ Mark Jrolf
-------------------------------
Name: Mark Jrolf
Title: ____________________________
ROBERT SNUKAL
By: \s\ Robert Snukal
---------------------------
Name: Robert Snukal
SHEILA SNUKAL
By: \s\ Sheila Snukal
-----------------------------
Name: Sheila Snukal
[Amendment No. 1 Amended and Restated Stockholders Agreement]
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