Exhibit 10.8
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This Agreement is made this 10th day of October, 1997, by and among
Genesis Health Ventures, Inc., a Pennsylvania corporation, and/or its designee
pursuant to Section 9.2 hereof (the "Buyer"), The Multicare Companies, Inc., a
Delaware corporation, Concord Health Group, Inc., a Delaware corporation,
Horizon Associates, Inc., a West Virginia corporation, and Horizon Medical
Equipment and Supply, Inc., a West Virginia corporation (collectively, the
"Sellers"), and Institutional Health Care Services, Inc., a New Jersey
corporation, Care4, L.P., a Delaware limited partnership, Concord Pharmacy
Services, Inc., a Pennsylvania corporation, Compass Health Services, Inc., a
West Virginia corporation, and Encare of Massachusetts, Inc., a Delaware
corporation (each a "Company" and collectively, the "Companies").
BACKGROUND
WHEREAS, the Sellers and each of the Companies have agreed to sell and
Buyer has agreed to purchase, all of the issued and outstanding capital stock
and limited partnership interests, whichever is applicable, of each of the
Companies on the terms and conditions provided for in this Agreement.
AGREEMENT
NOW, THEREFORE, in order to consummate such transactions and in
consideration of the mutual agreements set forth herein, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, unless otherwise
defined herein or unless the context otherwise requires, the following terms
shall have the following meanings:
"Agreement" means this Stock Purchase Agreement, all schedules hereto
and all amendments, modifications, and supplements hereto.
"Buyer" is defined in the preamble hereto.
"Closing" has the meaning specified in Section 2.2 hereof.
"Closing Date" has the meaning specified in Section 2.2 hereof.
"Company" or "Companies" is defined in the preamble hereto.
"Encumbrance" means any mortgage, claim, lien, pledge, option, charge,
security interest or other similar interest, easement, judgment or imperfection
of title of any nature whatsoever.
"Material Adverse Effect" means any change or effect that would or
would reasonably be expected to materially and adversely affect the financial
condition, results of operations, assets or business of each of the Companies,
the each of the Sellers, or Buyer and its subsidiaries taken as a whole, as the
case may be.
"Merger Agreement" means the Merger Agreement, dated as of June 16,
1997, by and among Genesis ElderCare Corp. (formerly known as Waltz Corp.), a
Delaware corporation, Genesis ElderCare Acquisition Corp. (formerly known as
Waltz Acquisition Corp.), a Delaware corporation, and The Multicare Companies,
Inc. pursuant to which Genesis ElderCare Acquisition Corp. shall merge with and
into The Multicare Companies, Inc.
"Purchase Price" means Fifty Million Dollars ($50,000,000) to be paid
by Buyer for the Shares in accordance with an allocation to be mutually
determined by the parties.
"Sellers" is defined in the preamble hereto.
"Shares" means all of the outstanding capital stock and limited
partnership interests, whichever is applicable, of each of the Companies.
ARTICLE 2. SALE OF SHARES AND PURCHASE PRICE
Section 2.1 Sale of Shares. On the terms and subject to the conditions
set forth in this Agreement, the Sellers shall cause the sale, transfer and
delivery to Buyer, and Buyer shall purchase, on the Closing Date, all right,
title and interest in and to all of the Shares.
Section 2.2 Closing. The closing of the purchase and sale of the Shares
(the "Closing") shall take place as soon as practicable after the closing under
the Merger Agreement at the offices of Blank Rome Xxxxxxx & XxXxxxxx, Xxx Xxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other place as shall be
mutually agreeable to the parties hereto (which time and place are designated as
the "Closing Date"), subject to the satisfaction or waiver of the conditions
specified in Article 6; provided, however, that if acceptable to the parties,
the Closing may be effected by facsimile transmission of executed copies of the
documents (including without limitation, this Agreement) delivered at the
Closing and payment of the purchase price specified in Section 2.3 and by
sending original copies of the documents (including without limitation, this
Agreement) delivered at the Closing by reputable overnight delivery service,
postage or delivery charges prepaid, for delivery to the parties at their
respective addresses set forth in Section 9.1 herein by the third business day
following the Closing.
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Section 2.3 Purchase Price. On the Closing Date, Buyer shall pay the
Purchase Price for the Shares. Buyer shall pay the Purchase Price, against
delivery of the certificates and the amended limited partnership agreement,
whichever is applicable, for the Shares required by Section 2.4, by wire
transfer of immediately available funds to such accounts as the Sellers shall
designate. The parties agree to allocate the Purchase Price among the Shares in
a manner to be mutually determined by the parties.
Section 2.4 Delivery of Certificates, Amended Limited Partnership
Agreement.
(i) On the Closing Date, the Sellers and the Companies shall
cause to be delivered to Buyer certificates (with respect to only those
Companies that are corporations) evidencing all of the Shares, duly endorsed in
blank (or in such name as may be designated by Buyer), and accompanied by stock
powers duly executed in blank (or in such name as may be designated by Buyer),
in proper form to transfer all right, title and interest in and to all Shares to
Buyer. Buyer shall have no obligation to purchase any of the Shares unless the
Sellers and the Companies deliver certificates for all of the Shares.
(ii) On the Closing Date, the Sellers and the Companies shall
cause to be delivered to Buyer an amended limited partnership agreement (with
respect to only those Companies that are limited partnerships) stating, among
other things, that Buyer is the sole limited partner for the Company that is a
partnership on and as of the Closing Date. Buyer shall have no obligation to
purchase any of the Shares unless the Sellers and the Companies deliver such
amended limited partnership agreement.
ARTICLE 3. CERTAIN UNDERSTANDINGS AND AGREEMENTS
Section 3.1 Conduct of Business. From the date of this Agreement to the
Closing Date, the Companies shall, and the Sellers shall cause the Companies to,
conduct their operations according to their ordinary and usual course of
business, to preserve their business organization intact, keep available the
services of their officers and employees and maintain satisfactory relationships
with suppliers, customers and others having business relationships with them.
Section 3.2 Pre-Closing Access to Properties and Records;
Confidentiality. Between the date hereof and the Closing Date, the Companies
shall, and the Sellers shall cause the Companies to, give authorized
representatives of Buyer, reasonable access to the premises, properties,
contracts, books, records and affairs of the Companies (including reasonable
access to the properties of the Companies for the purposes of conducting a Phase
1 environmental assessment of such properties) and will cause the Companies'
officers to furnish such financial, technical and operating data and other
information pertaining to the Companies' businesses as Buyer shall from time to
time reasonably request.
Section 3.3 Reasonable Efforts. Subject to the terms and conditions of
this Agreement, each party shall use all commercially reasonable efforts to
take, or cause to be taken, all actions necessary to consummate the transactions
contemplated by this Agreement. The parties shall
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cooperate with one another (a) in determining whether any action by or in
respect of, or filing with, any governmental authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any contracts and (b) subject to the terms and conditions of this Agreement,
in taking such actions or making any such filings, furnishing information
required in connection therewith and seeking to obtain in a timely fashion any
such actions, consents approvals or waivers.
Section 3.4 Notice of Certain Events. The Companies and, to the extent
known by it, the Sellers shall give notice to Buyer promptly of:
(a) any notice of breach or default received subsequent to the date of
this Agreement, or any instrument or agreement to which the Companies or any of
the Sellers is a party or by which it is bound; or
(b) any suit, action, proceeding or investigation instituted or, to the
Companies' and the Sellers' knowledge, threatened against or affecting any of
the Sellers or Companies subsequent to the date of this Agreement and prior to
the Closing.
Section 3.5 Section 338(h)(10) Election. With respect to the Buyer's
acquisition of the Shares pursuant to this Agreement, Buyer and the Sellers
shall jointly make a timely election under Section 338(h)(10) of the Internal
Revenue Code of 1986, as amended (the "Code") (and any corresponding elections
under any state or local tax laws) (such elections being hereinafter
collectively referred to as the "338(h)(10) Election"). The Sellers shall
cooperate with Buyer and take such action as may be necessary to cause each of
the Companies to cooperate with Buyer and take any and all action reasonably
necessary or appropriate (including filing such forms, returns, elections,
schedules and other documents as may reasonably be required) to effect and
preserve a timely 338(h)(10) Election in accordance with Code Section 338 and
the applicable regulations thereunder. The allocation of values to the assets of
the Companies shall be in accordance with the allocation set forth in Schedule D
attached hereto. Thereafter, Buyer and the Sellers shall report the sale of the
stock and other equity interests of the Companies pursuant to this Agreement in
a manner which is consistent with the 338(h)(10) Election and shall take no
position contrary thereto or inconsistent therewith in any tax returns in any
discussion with or proceeding before any taxing authority or otherwise. The
Sellers will pay any tax attributable to the making of the Section 338(h)(10)
Election and arising out of a deemed sale of assets as of the Closing.
Section 3.6 Adjustment of Assets. It is the intention of the parties
that the Companies comprise the institutional pharmacy services companies of
Multicare which have generated year to date annualized revenues of $82.3 million
and EBITDAR of $13.4 million. To the extent that (i) any of the Companies are
not included in the institutional pharmacy services companies which generated
such annualized revenues and EBITDAR or (ii) other entities owned by Seller are
included in such annualized revenues or EBITDAR but are not sold to Buyer
hereunder, the parties agree to make appropriate adjustment of the assets sold
hereunder.
Section 3.7 Tax Adjustment. To the extent that any taxes are imposed
upon Seller as a result of the sale of the Companies hereunder, Buyer will pay
to Seller the amount of such taxes
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when Seller is required to pay such taxes. To the extent that the sale of
Companies hereunder generates tax losses to Seller, Seller will pay to Buyer the
tax savings realized from such tax losses when Seller receives the benefit from
such tax losses.
ARTICLE 4. CONDITIONS TO OBLIGATIONS OF EACH PARTY
The obligations of each party to consummate the transactions
contemplated hereby shall be subject to the fulfillment, at or prior to the
Closing Date, of the following conditions, each of which may be waived by the
parties in writing:
Section 4.1 No Action or Proceeding. No claim, action, suit or other
proceeding shall be pending or threatened by any public authority or person
before any court, agency or administrative body which creates a substantial
likelihood that the consummation of this Agreement or the transactions
contemplated hereby will be restrained, enjoined or otherwise prevented or that
any material damages will be recovered or other material relief obtained as a
result of the transactions contemplated hereby or as a result of any agreement
entered into in connection with, or as a condition precedent to, the
consummation of the transactions contemplated hereby.
Section 4.2 Compliance with Law. No provision of any applicable law and
no judgment, injunction, order or decree shall prohibit the Closing. There shall
have been obtained any and all permits, approvals and consents of any
governmental body or agency which Buyer or the Sellers may reasonably deem
necessary so that consummation of the transactions contemplated by this
Agreement will be in compliance in all material respects with the applicable
laws.
Section 4.3 Xxxx-Xxxxx-Xxxxxx Requirements. The waiting periods (as
such may be extended by the governmental agencies involved) applicable to the
consummation of the transactions contemplated hereby under the provisions of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules
thereunder shall have expired or have been terminated by the appropriate
governmental agency.
Section 4.4. Regulatory Approvals. Any material approval, permit,
authorization, consent or waiting period of any governmental authority
applicable to (i) the purchase of all of the outstanding shares of common stock,
par value $.01 per share, of Multicare at a purchase price of $28.00 per share
(the "Equity Tender Offer"), (ii) the merger of Genesis ElderCare Acquisition
Corp. with and into Multicare (the "Merger") pursuant to the terms and
conditions of the Merger Agreement or (iii) the ownership or operation by
Multicare, Genesis ElderCare Corp. or Genesis Health Ventures, Inc. of all or a
material portion of the business or assets of Multicare shall have been obtained
or satisfied on terms satisfactory to Genesis ElderCare Corp. in its reasonable
discretion.
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ARTICLE 5. TERMINATION
This Agreement may be terminated at any time prior to the Closing Date
as follows:
(a) by mutual consent in writing of the parties hereto;
(b) at any time on or prior to the Closing Date, by either the Buyer,
on the one hand, or the Companies and Sellers, on the other hand, as the case
may be, if the other party(ies) has, in any material respect, breached any
covenant or undertaking contained herein and such breach has not been cured
within thirty days.
ARTICLE 6. MISCELLANEOUS
Section 6.1 Notices. All notices, requests, demands and other
communications hereunder shall be in writing (including telecopy or similar
writing) and shall be given:
If to Buyer:
Genesis Health Ventures, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Blank Rome Xxxxxxx & XxXxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Sellers or Companies:
Genesis ElderCare Corp.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice to the other party. Each
such notice, request, demand or other communication shall be effective (a) if
given by telecopy, when such telecopy is transmitted to the telecopy number
specified in this Section and evidence of receipt is received or (b) if given by
any other means, upon delivery or refusal of delivery at the address specified
in this Section.
Section 6.2 Assignability; Parties in Interest. This Agreement shall
not be assignable by any of the parties hereto, except that this Agreement shall
be assignable in whole or in part by Buyer to any subsidiary or subsidiaries of
Buyer, provided that no such assignment shall relieve the assignor of its
obligations hereunder. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns. Except as specifically referred to herein, this Agreement is for the
sole and exclusive benefit of the parties to this Agreement and their successors
and assigns and nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any legal or equitable rights, remedies or
claims under or by reason of this Agreement.
Section 6.3 Governing Law; Jurisdiction. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of Pennsylvania, without regard to conflicts of laws. In any action
between or among any of the parties, whether arising out of this Agreement or
otherwise, (a) each of the parties irrevocably consents to the exclusive
jurisdiction and venue of the federal and state courts located in the
Commonwealth of Pennsylvania; (b) each of the parties irrevocably waives the
right to trial by jury; (c) each of the parties irrevocably consents to service
of process by first class certified mail, return receipt requested, postage
prepaid, to the address at which such party is to receive notice in accordance
with Section 11.1.
Section 6.4 Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party shall have
received a counterpart signed by the other party.
Section 6.5 Publicity. The Sellers, the Companies and Buyer agree that
press releases and other announcements with respect to the transactions
contemplated hereby shall be subject to mutual agreement; provided, however,
that Buyer may make such announcements as in the opinion of its counsel, such
party is required to make pursuant to comply with law or the requirements of any
stock exchange or other applicable self-regulatory organization, but in such
event Buyer shall, to the extent
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practicable, give the Sellers and the Companies reasonable prior notice and an
opportunity to comment on the proposed announcement.
Section 6.6 Complete Agreement. This Agreement, the exhibits hereto and
the schedules and documents delivered pursuant hereto or referred to herein
contain the entire agreement between the parties hereto with respect to the
transactions contemplated herein and supersede all previous negotiations,
commitments and writings.
Section 6.7 Amendments and Waivers. The parties hereto may (a) extend
the time for the performance of any of the obligations or other acts of the
parties hereto, (b) waive any inaccuracies in the representations and warranties
contained in this Agreement or in any or documents delivered pursuant hereto,
(c) waive compliance with any of the covenants or agreements contained in this
Agreement or (d) amend this Agreement, if and only, in the case of an extension
or amendment, if such action is set forth in a written agreement signed by both
parties, or, in the case of a waiver, if such waiver is signed by the party
against whom the waiver is to be effective.
Section 6.8 Expenses. Except as specifically provided in this
Agreement, each party shall bear the expenses incurred by it in connection with
the transactions contemplated by this Agreement.
Section 6.9 Consents. Notwithstanding anything herein to the contrary,
this Agreement shall not constitute an agreement to assign any contract,
license, lease, commitment or other arrangement if an attempted assignment would
constitute a breach thereof. Whenever such consent is required, the Sellers will
use commercially reasonable efforts to cause such consents to be obtained and
Buyer agrees to cooperate with the Sellers and to enter into any reasonable
arrangement designed to provide for Buyer the benefits under such contracts and
agreements.
Section 6.10 Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 6.11 Severability. Any portion or provision of the Agreement
which is invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining portions or
provisions hereof in such jurisdiction or, to the extent permitted by law,
rendering that or any other portion or provision of the Agreement invalid,
illegal or unenforceable in any other jurisdiction.
Section 6.12 Further Assurances. Each party hereto agrees to execute
any and all documents and to perform such other acts as may be necessary or
expedient to further the purposes of this Agreement and the transactions
contemplated hereby.
Section 6.13. Waiver. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
or the documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such
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right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
GENESIS HEALTH VENTURES, INC., THE MULTICARE COMPANIES, INC.
or its designee
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Title: Chairman and Chief
Executive Officer Executive Officer
CONCORD HEALTH GROUP, INC. HORIZON ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Title: Chairman and Chief
Executive Officer Executive Officer
INSTITUTIONAL HEALTH CARE CARE4, L.P.
SERVICES, INC.
By: Institutional Health Care Services, Inc.,
By: /s/ Xxxxxxx X. Xxxxxx General Partner of Care4, L.P.
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief By: /s/ Xxxxxxx X. Xxxxxx
Executive Officer Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
CONCORD PHARMACY SERVICES, INC. COMPASS HEALTH SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Title: Chairman and Chief
Executive Officer Executive Officer
ENCARE OF MASSACHUSETTS, INC. HORIZON MEDICAL EQUIPMENT
AND SUPPLY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Name: Xxxxxxx X. Xxxxxx
Executive Officer Title: Chairman and Chief
Executive Officer
