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EXHIBIT 10.72
MANAGEMENT AND
STOCK OPTION AGREEMENT
BY AND BETWEEN
TIME INSURANCE COMPANY
AND
STAFF BUILDERS, INC.
DATED AS OF FEBRUARY 29, 1996
MANAGEMENT AND STOCK OPTION AGREEMENT
THIS MANAGEMENT AND STOCK OPTION AGREEMENT (this
"Agreement") is made and entered into this 29th day of
February, 1996, by and between TIME INSURANCE COMPANY, a
Wisconsin corporation ("Time"), and STAFF BUILDERS, INC., a
Delaware corporation ("Staff Builders").
RECITALS
WHEREAS, Staff Builders owns one hundred percent (100%)
of the issued and outstanding capital stock of AdultCare,
Inc., a Florida corporation ("AdultCare"), which has in the
past provided network management and case management services
for insurance companies, and acted as an intermediary between
insurance companies and providers (the "Business"); and
WHEREAS, Staff Builders desires to grant an option, and
Time desires to purchase such option, to purchase one hundred
percent (100%) of the issued and outstanding capital stock of
AdultCare, in accordance with the terms set forth in this
Agreement; and
WHEREAS, in anticipation of Time's possible exercise of
such option, Time desires that AdultCare change the Business
so that AdultCare will in the future provide national
eldercare referral and resource services; and
WHEREAS, Staff Builders and Time desire that, in order to
effect Time's desired change in the Business, Time shall
manage the operations of AdultCare prior to its exercise of
the option, in accordance with the terms set forth in this
Agreement.
NOW THEREFORE, in consideration of the mutual promises,
covenants, representations and warranties contained herein,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
MANAGEMENT
1.1 Management. Staff Builders hereby appoints Time as
agent of Staff Builders, and Time hereby agrees, to assume all
management responsibilities for AdultCare, including, but
without limitation, supervising all employees, making all
business decisions in the ordinary course and managing any
other activities which are customary and usual in connection
with operating such a business ("Management Services").
Except as otherwise specifically limited under this Agreement,
Time, as agent of Staff Builders, shall have the sole and
exclusive right to manage and control the operation of
AdultCare. Without limiting the generality of the foregoing,
no officer, director or agent of Staff Builders, or officer or
director of AdultCare, shall have the authority to cause
AdultCare to incur any obligation without the prior written
consent of Time. Furthermore, in the event Time enters into
a contract or obligation that extends beyond the term of the
Management Services and Time subsequently chooses not to
exercise the Option, such contract or obligation shall be the
responsibility of Time, unless Staff Builders expressly
decides to incur such contract or obligation. Staff Builders
and Time agree that during the term of this Agreement the
employees of AdultCare will remain AdultCare employees and not
be deemed Time employees. Additionally, from time to time
throughout the duration of the Management Services, Time may
provide to Staff Builders the names of proposed officers of
AdultCare, and Staff Builders will cause the Board of
Directors of AdultCare to elect such officers, provided that
such request by Time would not result in a violation of
AdultCare's articles of incorporation or bylaws.
1.2 Working Capital. As part of the Management
Services, Time will fund all direct net operating costs of
AdultCare, as determined necessary and appropriate by Time,
beginning January 1, 1996 and continuing for so long as Time
is providing the Management Services hereunder (the "Working
Capital"). Such Working Capital shall be deemed loans from
Time to AdultCare for which AdultCare will execute such
promissory notes as Time may reasonably request containing
appropriate and customary terms and conditions. In the event
Time exercises its Option (as defined herein), the Working
Capital loans will be converted into equity as an additional
capital contribution by Time (thereby increasing Time's basis
in its holdings of AdultCare stock). In the event Time elects
not to exercise its Option, such loans will be forgiven by
Time, and AdultCare shall have no obligation to repay such
debt. As a result of this loan forgiveness, for federal
income tax purposes, AdultCare will be deemed to have received
income, and Time will receive a bad debt write-off (deduction)
for such loan amounts.
1.3 Term. The term of the Management Services shall be
deemed to have commenced on November 1, 1995 and shall
continue in effect through February 28, 1997, unless sooner
terminated in accordance with Section 1.4 below.
1.4 Termination.
(a) Time may terminate this Agreement: (i) for any
reason whatsoever upon 60 days' notice to Staff Builders or
(ii) immediately, without any notice to Staff Builders, in the
event of a material breach of this Agreement by Staff
Builders, which breach is not cured within ten (10) business
days after notice thereof from Time. If Time terminates this
Agreement pursuant to (a)(i) above without exercising its
Option:
(x) Time shall continue to fund all of AdultCare's
direct net operating costs, as determined necessary and
appropriate by Time (but in no event to exceed $100,000), for
a period of thirty (30) days from the date of termination of
the Management Services, and Staff Builders shall reimburse
Time fifty percent (50%) of all such costs within sixty (60)
days from the date of termination;
(y) If AdultCare's stockholder's equity, determined
pursuant to a balance sheet prepared in accordance with
generally accepted accounting principles, as of the effective
date of the termination is less than $396,468, Time shall pay
an amount to Staff Builders equal to the difference; and
(z) If AdultCare's stockholder's equity, determined
pursuant to a balance sheet prepared in accordance with
generally accepted accounting principles, as of the effective
date of the termination is more than $396,468, Staff Builders
shall pay an amount to Time equal to the difference. Time
shall determine the stockholder's equity number and shall
deliver to Staff Builders in writing such determination, with
supporting information in reasonable detail. Staff Builders
shall then have 30 days in which to have its independent
auditors review Time's determination. If Staff Builders does
not object to Time's determination by sending a written notice
to Time within such 30-day period, then Time's determination
shall be deemed binding for purposes of this Agreement. If
Staff Builders makes a timely objection, the parties shall
negotiate in good faith to resolve the objection, and if no
resolution is reached within 15 days after Staff Builders'
delivery of its objection notice, the matter may then be
submitted to arbitration by either party, in accordance with
Article IX hereof.
(b) Staff Builders shall not have any right to
terminate this Agreement prior to the close of business on
February 28, 1997.
1.5 Current Information. For so long as Time is
providing the Management Services, Time and AdultCare shall
(a) confer from time to time as Time deems appropriate, but
not less often than quarterly, with Staff Builders to report
material operational matters and to report the general status
of ongoing operations, (b) notify Staff Builders of any
material adverse effect on AdultCare's business or properties,
and of any governmental or other third-party complaints,
investigations, hearings or adjudicatory proceedings involving
AdultCare, and (c) provide Staff Builders with AdultCare's
internally produced financial information on a month-to-month
basis within 20 days of its production and other information
about AdultCare as Staff Builders may reasonably require. For
so long as Time is providing the Management Services, Staff
Builders shall notify Time promptly of any notice or
communication that Staff Builders receives, or any other
information of which it becomes aware, regarding any
governmental or other third-party complaints, investigations,
hearings or adjudicatory proceedings involving AdultCare, or
any facts that could have an adverse impact on AdultCare.
ARTICLE II
OPTION
2.1 Grant. Staff Builders hereby irrevocably grants,
sells and conveys to Time an option (the "Option") to purchase
from Staff Builders at the Purchase Price (as herein defined):
(a) 600 shares of the Common Stock, no par value, of AdultCare
("Option Shares") which constitutes one hundred percent (100%)
of the issued and outstanding capital stock of AdultCare; and
(b) Staff Builders' agreement not to compete with AdultCare as
set forth in Section 6.1(a), all upon the terms and conditions
contained herein.
2.2 Option Price. In full consideration for the grant
of the aforesaid Option, Time (i) will pay to Staff Builders
the sum of $300,000 on March 1, 1996; and (ii) has paid to
Staff Builders the amounts of the net direct operating costs
of AdultCare for the months of October, November and
December 1995 in the amounts of $53,937, $52,907, and $53,486,
respectively (the "1995 Payments"). The aggregate amount of
the payments described in (i) and (ii) above (collectively,
the "Option Payment") shall be applied to the Purchase Price
as set forth in Section 2.5 below, if Time determines to
exercise its Option. If Time elects not to exercise the
Option, the Option Payment shall be retained by Staff
Builders.
2.3 Exercise Rights. Subject to and upon the terms of
this Agreement, Time shall have the right to exercise this
Option, in its sole discretion, at any time during the Option
Term. Any such exercise of this Option shall be only for all
of the Option Shares.
2.4 Option Term. Time may provide notice to Staff
Builders of its intent to exercise the Option at any time
prior to 5:00 p.m., Eastern Standard time, on the earlier of
January 31, 1997 or 30 days after termination of the
Management Services. Closing of the purchase of the Option
Shares must occur within 60 days after the date of the
exercise notice, but not later than February 28, 1997. The
date upon which such closing occurs is the "Closing Date," and
the period from the date hereof through the earlier of the
Closing Date or February 28, 1997, is the "Option Term."
2.5 Purchase Price.
(a) The purchase price for the exercise of the
Option shall be $1,460,330 ("Purchase Price"). The Purchase
Price shall be paid as follows: (i) application of an amount
equal to the net tax benefit to the Staff Builders
consolidated tax group resulting from its use, for federal
income tax purposes, of the net operating losses generated by
AdultCare that are based on the amount of funding provided by
Time for the period from January 1, 1996 through the date of
exercise of the Option; (ii) application of the Option Payment
and (iii) the remainder of the Purchase Price shall be paid by
Time in cash, by means of a certified check.
(b) On or before the Closing Date, Time and Staff
Builders will mutually determine the amount of the net
operating losses described in Section 2.5(a)(i), and the
parties will mutually agree on the effective federal income
tax rate for the Group (as defined in Section 3.13(a)) that
will be applied to AdultCare's net operating losses to
determine the benefit to Time.
(c) In the event that Time exercises its Option to
purchase AdultCare, and then sells AdultCare to an
unaffiliated third party prior to March 31, 1997, Staff
Builders will share in the proceeds of such sale.
Specifically, Staff Builders will receive one-half the amount
derived by the following formula (if the formula produces a
positive number): Net sales price received by Time less each
of the following items: (i) the amount of the Working Capital
less a 15% return thereon, (ii) the Purchase Price, and
(iii) an aggregate of 20% of such net sales price, which shall
be paid 10% to Xxxxxx Xxxxxxx and 10% to Xxxxx X. Xxxx.
2.6 Manner of Exercise. To exercise this Option, Time
shall deliver to Staff Builders prior to January 31, 1997 a
notice of intent to exercise in writing. The subsequent
closing shall take place, on a date specified by Time but in
accordance with Section 2.4, at the offices of Fortis, Inc.,
One Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000. Time and Staff Builders agree to use their best
efforts to achieve satisfaction of the conditions to closing
set forth in this Agreement and to consummate a closing upon
the exercise of this Option on the terms and subject to the
conditions set forth in this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES BY STAFF BUILDERS
Staff Builders hereby represents and warrants to Time as
follows:
3.1 Title to Shares; Capitalization. Staff Builders is
the owner of all right, title and interests (legal and
beneficial) in and to 600 shares of AdultCare's Common Stock,
no par value, and such stock constitutes one hundred percent
(100%) of the issued and outstanding capital stock of
AdultCare. The Option Shares are validly issued and
outstanding, fully paid and non-assessable. Upon exercise of
the Option, Staff Builders will convey to Time the Option
Shares free and clear of all mortgages, pledges, liens,
charges, security interests, adverse claims, demands and
encumbrances whatsoever. Except as specifically contemplated
by this Agreement, no person or entity has any agreement or
option or any right or privilege (whether preemptive or
contractual) capable of becoming an agreement or option for
the purchase of any of the Option Shares. There are no
outstanding options, warrants, rights, agreements, calls,
commitments or demands of any character relating to the
capital stock of AdultCare and no securities convertible into
or exchangeable for any such capital stock.
3.2 Capacity and Validity. Staff Builders has the full
power and capacity necessary to enter into and perform its
obligations under this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been
duly executed and delivered by Staff Builders, and constitutes
a legal, valid and binding obligation, enforceable in
accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, or other
laws affecting creditor's rights. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly
authorized by the Boards of Directors of Staff Builders and
AdultCare, that being the only corporate action necessary to
approve this Agreement or the transactions contemplated
hereby.
3.3 Organization and Good Standing of AdultCare.
AdultCare is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida
and has full corporate power to own or lease its properties
and to carry on its business as it is now being conducted.
AdultCare is duly qualified or licensed to do business and is
in good standing in each jurisdiction in which the ownership
of its properties or the conduct of its business requires such
qualification, except where the failure to so qualify would
not have a material adverse effect on AdultCare. Staff
Builders has previously delivered to Time true, complete and
correct copies of the Articles of Incorporation and Bylaws of
AdultCare, records of the proceedings of incorporators,
stockholders and directors of AdultCare ("Minute Books") and
the stock record books of AdultCare ("Stock Record Books").
3.4 No Conflict. Neither the execution and delivery of
this Agreement nor the consummation of the transactions and
agreements contemplated hereby shall (a) conflict with or
result in a violation, contravention or breach of any of the
terms, conditions or provisions of (i) the Articles of
Incorporation or Bylaws of Staff Builders or AdultCare or
(ii) any agreement or instrument to which Staff Builders or
AdultCare is a party, or by which Staff Builders or AdultCare
is bound, or constitute a material default thereunder, or
(b) result in the violation of any statute, regulation,
judgment, decree or law or in the creation or imposition of
any mortgage, lien, charge or encumbrance of any nature
whatsoever upon any of the assets of AdultCare or any of the
Option Shares.
3.5 Subsidiaries and Investments. AdultCare does not
have any subsidiaries and does not own, directly or
indirectly, any capital stock or other equity, ownership or
proprietary interest in any corporation, partnership,
association, trust, joint venture or other entity.
3.6 Financial Statements.
(a) Set forth on Schedule 3.6 hereto are (a) the
unaudited balance sheet of AdultCare as of October 31, 1995
and the related statements of earnings and shareholders equity
for the eight months then ended, and (b) the unaudited balance
sheets of AdultCare as of February 28, 1995 and December 31,
1993 and the related statements of earnings, shareholders
equity and cash flows for the fiscal years then ended
(including the notes related thereto) (the "AdultCare
Financial Statements"). The AdultCare Financial Statements
are (i) in accordance with the books and records of AdultCare,
which have been properly maintained and are complete and
correct in all material respects, (ii) have been prepared in
accordance with GAAP consistently applied, (iii) present
fairly the financial position of AdultCare as of the dates
indicated and present fairly the results of AdultCare's
operations for the periods then ended, and (iv) include all
necessary recurring accruals.
(b) Also set forth on Schedule 3.6 hereto are (a) the
consolidated unaudited balance sheets of Staff Builders as of
October 31 and December 31, 1995 and the related statements of
earnings and shareholders equity for the ten months then
ended, and (b) the consolidated audited balance sheets of
Staff Builders as of February 28, 1995, 1994 and 1993 and the
related statements of earnings, shareholders equity and cash
flows for the fiscal years then ended (including the notes
related thereto and the independent auditors' reports thereon)
(the "Staff Builders Financial Statements"). The Staff
Builders Financial Statements are (i) in accordance with the
books and records of Staff Builders, which have been properly
maintained and are complete and correct in all material
respects, (ii) have been prepared in accordance with GAAP
consistently applied (except that the December 31, 1995
statements do not have footnotes and are subject to normal
year-end audit adjustments that are not material),
(iii) present fairly the financial position of Staff Builders
as of the dates indicated and present fairly the results of
Staff Builders' operations for the periods then ended, and
(iv) reflect reserves in conformity with GAAP which are
adequate for all known liabilities and reasonably anticipated
losses. The independent auditors' reports included with the
Staff Builders Financial Statements have not been revoked or
qualified in any manner since their respective dates.
3.7 Absence of Undisclosed Liabilities. Except as set
forth on Schedule 3.7 hereto, AdultCare does not have any
liability or obligation, whether liquidated or contingent,
that is not fully reflected or reserved against in AdultCare's
October 31, 1995 balance sheet or disclosed herein, including,
without limitation, any tax liabilities due or to become due
or contingent losses for unasserted claims which are probable
of assertion.
3.8 Consents and Approvals. Except as set forth on
Schedule 3.8, the execution, delivery, and performance of this
Agreement by Staff Builders and the consummation of the
transactions contemplated hereby do not require any consent,
approval or authorization of, or registration or filing with,
any person or governmental authority.
3.9 Absence of Changes. Except as set forth on
Schedule 3.9 or expressly contemplated by this Agreement,
since October 31, 1995: (a) AdultCare has conducted its
business only in the ordinary course; (b) there has been no
material adverse change in the business, assets, properties or
financial condition or prospects of AdultCare; (c) AdultCare
has not directly or indirectly declared, paid or authorized
any dividends or other distributions on or payments in respect
of its shares or securities; and (d) there has been no damage
resulting from fire or other hazard to the physical assets of
AdultCare.
3.10 Guarantees. AdultCare is not a party to nor bound
by any agreement or guarantee, indemnification, assumption,
power of attorney or endorsement or any like commitment with
respect to the obligations, liabilities (contingent or
otherwise) or indebtedness of any other person, firm or corporation.
3.11 Pending Litigation or Proceedings. Except as set
forth on Schedule 3.11, there is no litigation, proceeding or
governmental investigation in progress, pending, threatened or
contemplated against or relating to AdultCare, the conduct of
business of AdultCare, the Option or the transactions
contemplated by this Agreement, nor is there presently
outstanding against AdultCare any judgment, decree,
injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator.
3.12 Compliance with Laws, Etc. AdultCare has conducted,
and is conducting, its business in compliance with all
applicable laws, rules and regulations and orders of each
jurisdiction in which its business has been and is being
carried on and is not in breach of any such laws, rules or
regulations or orders in any material respect, including
without limitation, all applicable federal, state and local
laws, rules and regulations relating to the treatment,
handling or disposal of hazardous or toxic substances or waste
and petroleum, petroleum products and oil. AdultCare has not
used any real property owned or leased by AdultCare for the
handling, treatment, storage or disposal of any such hazardous
or toxic substances and no release, discharge, spillage or
disposal thereof has occurred or is occurring thereon.
AdultCare has obtained all, and is not in default under, any
permits, licenses, certificates and other authorizations for
the complete operation of its business. Set forth in
Schedule 3.12 hereof is a true, complete and correct list of
all such permits, licenses, certificates, approvals and other
authorizations. All such permits, licenses, certificates,
approvals and other authorizations are presently valid and in
full force, and no revocation, cancellation, or withdrawal
thereof has been effected or, to the knowledge of Staff
Builders, threatened. The execution of this Agreement and the
performance of the transactions contemplated hereby will not
change or result in the termination of, any such permits,
licenses, certificates and other authorizations.
3.13 Tax Returns.
(a) Staff Builders and AdultCare and certain other
affiliates of Staff Builders constitute an affiliated group of
corporations (the "Group") within the meaning of Section 1504
of the Internal Revenue Code of 1986, as amended (the "Code"),
and AdultCare has joined in the filing of a consolidated
federal income tax return with the Group for taxable years
beginning with the fiscal year ended February 28, 1995.
(b) AdultCare, or Staff Builders on behalf of
AdultCare, has duly and timely filed with the appropriate
federal, state, county and local government agencies any and
all tax returns and reports required to be filed by AdultCare,
and has paid, or accrued in full on AdultCare's financial
statements, all taxes, assessments, reassessments, and all
other taxes, customs and excise duties, governmental charges,
penalties, interest and fines required to be paid by AdultCare
in respect of the periods covered by such returns and reports.
All tax returns of AdultCare, and of the Group with respect to
AdultCare, (i) have been prepared in accordance with all
applicable laws, and (ii) accurately reflect the taxable
income (or other measure of tax) of the corporation or
corporations filing the same. All taxes of AdultCare have
been paid or are adequately reserved against on the books of
AdultCare. AdultCare, or Staff Builders on behalf of
AdultCare, has timely filed all information returns or
reports, including Forms 1099, that are required to be filed
and have accurately reported all information required to be
included on such returns or reports. A true, correct and
complete copy of the federal income tax return of AdultCare
for the fiscal year ended February 28, 1995 has been delivered
to Time, and a true, correct and complete copy of the federal
income tax return of AdultCare included in the consolidated
tax return of the Group for the fiscal year ended February 29,
1996 will be delivered to Time at the time that it is filed.
True copies of the state tax returns of AdultCare filed most
recently in each state, respectively, in which AdultCare has
filed tax returns have been delivered to Time.
(c) There is no action, suit, proceeding,
investigation, audit or claim pending or proposed with respect
to any liability for tax that relates to AdultCare, and there
are no proposed assessments of taxes against AdultCare, no
proposed adjustments to any tax return pending against the
Group with respect to AdultCare's operations or assets, and no
proposed adjustments to the manner in which any tax of the
Group is determined with respect to AdultCare's operations or
assets. No taxing authority in a jurisdiction where AdultCare
does not file tax returns has made a claim or threat that
AdultCare is or may be subject to taxation by that
jurisdiction.
(d) AdultCare has not (i) filed any consent
agreement under Section 341(f) of the Code, (ii) executed or
been the subject of a waiver or consent extending any statute
of limitation for any tax liability that remains outstanding,
(iii) joined in or been required to join in filing a
consolidated or combined federal, state or local tax return
with any corporation other than a current or former member of
the Group, (iv) been the subject of a ruling of the Internal
Revenue Service or any state or local taxing authority that
has continuing application to AdultCare, (v) been the subject
of a closing agreement with any taxing authority that has
continuing effect, (vi) filed an election under Section 338(g)
or Section 338(h)(10) of the Code or caused a deemed election
under Section 338(e) thereof, or (vii) granted a power of
attorney with respect to any tax matters that has continuing
effect. AdultCare has not agreed to make nor is it required
to make any adjustment under Section 481 of the Code or any
comparable provision of state, local or foreign law by reason
of a change in accounting method or otherwise and the Internal
Revenue Service (or other taxing authority) has not proposed
any such change in accounting method in connection with an
ongoing audit of AdultCare. AdultCare has not disposed of
property in a transaction being accounted for under the
installment method pursuant to Section 453 of the Code, or any
comparable state, local or foreign law.
3.14 Owned Property. Set forth on Schedule 3.14 hereto
is a true, complete and correct list of (a) all real property,
(b) all items of tangible personal property, and (c) all
computer software, owned of record or beneficially by
AdultCare (the "Owned Property"). All such properties
constituting personal property are located on real property
which is listed on Schedule 3.14 or 3.15 hereof. AdultCare
has good, valid and marketable (and in the case of real
property, insurable) title to all of the Owned Properties,
free and clear of all mortgages, pledges, liens, charges,
security interests, adverse claims, demands and encumbrances
whatsoever.
3.15 Leased Property. Set forth on Schedule 3.15 hereof
is a true, complete and correct list of all leases, licenses
or similar arrangements in respect of the use of real or
personal property by AdultCare (the "Leased Property"). Each
of such leases, licenses or similar arrangements is in full
force and effect and no event has occurred which, with the
lapse of time or action by a third party could result in a
material default under any of such leases, licenses or similar
arrangements. AdultCare has good and valid leasehold
interests in all of the Leased Properties, free and clear of
all mortgages, pledges, liens, charges, security interests,
adverse claims, demands and encumbrances whatsoever.
3.16 Proprietary Rights. Set forth on Schedule 3.16
hereof is a true, complete and correct list of all patents,
patent applications, trademarks, trademark applications,
service marks, trade names, franchises, permits, copyrights
and copyright registrations owned in whole or in part or
licensed by or to AdultCare (collectively, the "Patents and
Trademarks"). AdultCare has good, valid and marketable title
to each of the Patents and Trademarks, free and clear of
mortgages, pledges, liens, charges, security interests,
adverse claims, demands or encumbrances whatsoever, including,
without limitation, any right of any other person to receive
a royalty with respect thereto. Other than as described in
Schedule 3.16, there are no licenses granted by or to
AdultCare or other agreements to which it is a party, relating
in whole or in part to any of the Patents and Trademarks, or
to inventions, discoveries, improvements, processes, formulae,
trade secrets, ideas or other know-how, or labels, whether
owned by AdultCare or otherwise.
3.17 Accounts Receivable. The accounts receivable of
AdultCare, net of allowance for doubtful accounts and returns
in the ordinary course of business, as recorded on the books
of AdultCare are bona fide accounts receivable arising and
collectible in the ordinary course of business.
3.18 Title to Assets and Properties. The Owned Property,
Leased Property and Patents and Trademarks constitute all of
the material properties used or required in the conduct of the
business of AdultCare as presently conducted. None of the
assets or properties of AdultCare is owned, possessed, used or
held, nor shall any of the same be retained, by Staff Builders
or any of its affiliates. All of the assets and properties of
AdultCare are in good condition and useful for the purpose
intended, reasonable wear and tear excepted. With respect to
each item of computer software owned or leased by AdultCare,
or otherwise used by AdultCare in its business, AdultCare has
delivered to Time true, correct and complete copies of the
most current versions of all user documentation. AdultCare is
in exclusive possession of the source code for all computer
software owned by it and listed on Schedule 3.14. None of
such computer software, nor any of the proprietary rights
described in Section 3.16, infringes on the rights of others,
nor does Staff Builders have any knowledge of any such
infringement claim or any reason to believe that a basis for
any such claim exists.
3.19 Contracts and Agreements. Set forth on
Schedule 3.19 hereof is a true, complete and correct list of
each contract or agreement, whether written or oral, to which
AdultCare is a party involving the payment or receipt of more
than $1,000.
3.20 Compensation; Agreements with Officers, Directors,
Employees and Agents. Set forth on Schedule 3.20 hereof is a
true, complete and correct list of the name, title, date of
hiring or engagement and current annual rate of compensation
or fees of each director, officer, employee, independent
contractor and agent of AdultCare, together with a summary
(containing estimates to the extent necessary) of existing
bonuses, additional compensation (whether current or deferred)
and other like benefits, if any, paid or payable to such
persons. AdultCare is not a party to, nor is any of its
property bound by, any contract, agreement or other
transaction with any director, officer or employee of
AdultCare, and AdultCare has not made or authorized any
payment to its officers, directors, former directors,
shareholders or employees except in the ordinary course of
business and at the regular rates of salary or other
remuneration payable as set forth on Schedule 3.20, except as
expressly contemplated by this Agreement. AdultCare has
treated each person employed or engaged by it as an employee
or independent contractor as appropriate in each case and has
complied with all tax laws regarding such characterizations.
3.21 Insurance Policies. Set forth on Schedule 3.21
hereof is a true, complete and correct list of all policies of
insurance of AdultCare, including, without limitation, those
covering its properties, buildings, machinery, equipment,
furniture, fixtures, operations and the lives of (or
performance of duties by) its officers and key employees.
Each of the insurance policies listed on such Schedule is in
full force and effect, AdultCare is not in material default
thereunder and all claims thereunder have been filed in a
timely fashion. Together, all such policies are adequate to
insure AdultCare against such risks and in such amounts as
customarily maintained by similar businesses or as may be
required by law. Staff Builders has delivered to Time true,
correct and complete copies of all such policies.
3.22 Employee Benefit Plans. Set forth on Schedule 3.22
hereof is a true, complete and correct list of all employee
profit-sharing, incentive, deferred compensation, welfare,
pension, retirement, group insurance, severance, disability,
medical, vacation, sick leave, bonus, executive compensation,
stock option and other employee benefit plans, arrangements
and practices (including all trust agreements), including, but
not limited to, "employee benefit plans" (as defined in
Section 3(3) of ERISA) in which employees of AdultCare or
their dependents were eligible to participate or to which
AdultCare made contributions on behalf of its employees or
their dependents ("Employee Benefit Plans") and the most
recent determination letters of the United States Internal
Revenue Service relating to such Employee Benefit Plans, where
applicable. AdultCare is not in default under any of the
agreements or Employee Benefit Plans, and none of such plans
has been terminated in whole or in part. Except as set forth
on Schedule 3.22, AdultCare has never sponsored, maintained,
contributed to or been obligated to contribute to any
"employee pension benefit plan" (as defined in Section 3(2) of
ERISA), any "employee welfare benefit plan" (as defined in
Section 3(1) of ERISA), or any "multiemployer plan" (as
defined in Section 3(37) of ERISA) (collectively, "ERISA
Plans"), and no AdultCare employee has at any time during the
employee's AdultCare employment been eligible to participate
in, or participated in, any ERISA Plan that was at any time
maintained, sponsored or contributed to by AdultCare or any
ERISA Affiliate of AdultCare. Neither AdultCare nor Time has
any liability or obligation with respect to any current or
prior Employee Benefit Plan or ERISA Plan of AdultCare or its
ERISA Affiliates. "ERISA" means the Employee Retirement
Income Security Act of 1974, as in effect from time to time.
"ERISA Affiliate" means any entity that together with
AdultCare constitutes a single employer within the meaning of
Code Section 414 for periods prior to and including the
Closing Date.
3.23 Banking Relationships. Set forth on Schedule 3.23
hereof is a true, accurate and complete list of each
institution in which AdultCare has a bank account or safe-
deposit box, the names of all persons authorized to draw
thereon or to have access thereto, and the name of each
person, firm or corporation holding a general or special power
of attorney from AdultCare and a summary of the terms thereof.
3.24 Labor Matters. Except as disclosed in
Schedule 3.24, the employment of all employees of AdultCare is
terminable at will by AdultCare without any penalty or
severance obligation incurred by AdultCare or Staff Builders.
Except as and to the extent set forth in Schedule 3.24,
(a) AdultCare is not a party to any union agreement or
collective bargaining agreement or work rules or practices
agreed to with any labor organization or employee association,
and no attempt to organize AdultCare's employees has been
made, proposed or threatened; (b) within the past five years,
AdultCare has not had any Equal Employment Opportunity
Commission charges or other claims of employment
discrimination made against it by any of its employees;
(c) within the past five years, no Wage and Hour Department
investigations have been made of AdultCare with respect to its
employees or independent contractors; (d) no labor strike,
dispute, slowdown, stoppage or lockout is pending or, to the
knowledge of Staff Builders threatened, against or affecting
AdultCare and during the past five years there has not been
any such action; and (e) no unfair labor practice charge or
complaint against AdultCare is pending, or to the knowledge of
Staff Builders threatened, before the National Labor Relations
Board or any similar governmental authority. Since the
enactment of The Worker Adjustment and Retraining Notification
Act, 29 U.S.C. 2101-2109 (the "WARN Act"), AdultCare has
not effectuated (i) a "plant closing" (as defined in the WARN
Act) affecting any site of employment or one or more
facilities or operating units within any site of employment or
facility of AdultCare; or (ii) a "mass layoff" (as defined in
the WARN Act) affecting any site of employment or facility of
AdultCare; nor has AdultCare been affected by any transaction
or engaged in layoffs or employment terminations sufficient in
number to trigger application of any similar state or local
law. Except as set forth in Schedule 3.24, none of the
employees of AdultCare has suffered an "employment loss" (as
defined in the WARN Act) since six (6) months prior to the
date hereof.
3.25 No Brokers. No broker agent, finder, consultant or
other person has been retained by, or has acted on behalf of
Staff Builders or AdultCare (other than legal and accounting
advisors) or is entitled to be paid based upon any agreements
or understandings made by Staff Builders in connection with
the transactions contemplated by this Agreement. Neither Time
nor AdultCare shall have any liability for any broker's fee,
finder's fee, consultant's fee or similar third party
remuneration by reason of any action of Staff Builders or
AdultCare, including, without limitation, any such fee or
other liability to Emerald Capital Services, Inc.
3.26 Full Disclosure. On the date hereof neither this
Agreement nor any other document, certificate, or written
statement furnished to Time in connection with the
transactions contemplated herein contains any untrue statement
of any material fact or omits to state any material fact
necessary in order to make such statements herein not
misleading to a prospective purchaser of the Option Shares
seeking full information as to AdultCare, its properties,
businesses and affairs.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES BY TIME
Time hereby represents and warrants to Staff Builders as
follows:
4.1 Organization and Good Standing of Time. Time is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Wisconsin and has full
corporate power to own or lease its property and to carry on
its business as it is now being conducted.
4.2 Capacity and Validity. Time has full power and
authority necessary to enter into and perform its obligations
under this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed
and delivered by Time and constitutes a legal, valid and
binding obligation, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditor's rights. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Time, that being the
only corporate action necessary to approve this Agreement or
the transactions contemplated hereby.
4.3 No Conflict. Neither the execution and delivery of
this Agreement nor the consummation of the transactions and
agreements contemplated hereby shall (a) conflict with or
result in a violation, contravention or breach of any of the
terms, conditions or provisions of (i) the Articles of
Incorporation or Bylaws of Time or (ii) any agreement or
instrument to which Time is a party, or by which Time is
bound, or constitute a material default thereunder, or
(b) result in the violation of any statute, regulation,
judgment, decree or law or in the creation or imposition of
any mortgage, lien, charge or encumbrance of any nature
whatsoever upon any of the assets of Time.
4.4 Pending Litigation or Proceedings. There is no
litigation, proceeding or governmental investigation in
progress, pending or, to the knowledge of Time threatened,
against or otherwise relating to or affecting Time which, if
adversely determined, could adversely affect the ability of
Time to consummate the transactions contemplated hereby.
4.5 No Brokers. No broker, agent, finder, consultant or
other person has been retained by or on behalf of Time (other
than legal or accounting advisors) or is entitled to be paid
based upon any agreements or understandings made by Time in
connection with the transactions contemplated hereby. Staff
Builders shall not have any liability for any broker's fee,
finder's fee, consultant's fee or other similar third party
remuneration by reason of any action of Time.
ARTICLE V
CERTAIN ADDITIONAL COVENANTS AND AGREEMENTS
5.1 Changes in Articles of Incorporation or Bylaws.
During the Option Term, without the prior written consent of
Time, there shall be no changes made to the Articles of
Incorporation or Bylaws of AdultCare (except as necessary to
effect the requirements of Section 5.5) or in AdultCare's
authorized or issued capital stock, and AdultCare shall
maintain its corporate existence and powers and its
qualifications as a foreign corporation in any jurisdiction
where such qualification is necessary.
5.2 Company Capital. During the Option Term, Staff
Builders shall not cause AdultCare to, and AdultCare shall
not, without the prior written consent of Time, (i) issue any
additional capital stock or other security, (ii) directly or
indirectly redeem, purchase or otherwise acquire any shares of
its capital stock, (iii) issue to any person options,
warrants, or other rights to acquire any of its securities,
(iv) declare, set aside or pay any dividend or make any other
distribution with respect to its capital stock, (v) sell,
transfer or otherwise dispose of any assets of AdultCare, or
(vi) enter into any agreement to do any of the foregoing.
5.3 Computer Software. If Staff Builders has any rights
to or interests in any computer software or other properties
or assets owned or used by AdultCare, Staff Builders will
promptly hereafter transfer such rights and interests to
AdultCare for $1.00 consideration and in a manner to the
reasonable satisfaction of Time. Staff Builders may retain
reasonable rights to use the computer software as such
software existed on October 1, 1995, but only with respect to
business that does not compete with AdultCare.
5.4 Employee Benefits and Insurance. During the Option
Term, Staff Builders shall cause AdultCare to (i) maintain for
its employees all of the employee benefit plans and
arrangements listed on Schedule 3.22, and (ii) maintain in
force all insurance policies listed on Schedule 3.21, unless
requested otherwise by Time. If Time requests a change in the
employee benefit plans or insurance policies, Staff Builders
will cooperate to effect such changes promptly.
5.5 AdultCare Board of Directors. During the Option
Term, the AdultCare Board of Directors shall at all times
consist of five persons, three of whom shall be officers of
AdultCare and not also officers or directors of Staff
Builders. During the Option Term, Staff Builders shall, and
shall cause AdultCare to, provide to Time (i) prior notice of
all meetings of the AdultCare Board of Directors and all
committees thereof, and (ii) copies of all materials and all
other information that is provided to the AdultCare directors.
Time shall have the right to attend all meetings of the
AdultCare Board of Directors and all committees thereof. In
addition, Staff Builders shall provide to Time notice of all
action taken by it as sole shareholder of AdultCare.
5.6 Section 338 Election; Allocation of Purchase Price.
If Time exercises the Option, at Time's election Staff
Builders will join with Time in making an election under
Section 338(h)(10) of the Code (and any corresponding
elections under state, local or foreign tax law)
(collectively, a "Section 338 Election") with respect to the
purchase and sale of the Option Shares. Staff Builders will
pay any and all federal, state, local or foreign tax
attributable to the making of the Section 338 Election, and
will indemnify Time and AdultCare from and against any and all
such tax and any claim arising out of or any failure to pay
such tax. If Time elects to make such a Section 338 Election,
Time will pay to Staff Builders in cash the amount of the net
present value of the tax effect to Staff Builders as a result
of such Section 338 Election, up to a maximum amount of
$100,000. Time and Staff Builders shall report the purchase
and sale of the Option Shares in a manner consistent with the
Section 338 Election and shall take no position contrary
thereto or inconsistent therewith in any tax return or any
proceeding with any taxing authority. The Purchase Price
shall be allocated to the assets of AdultCare (or the stock if
no Section 338 Election is made) and to the non-compete given
by Staff Builders in a manner mutually determined by Time and
Staff Builders, and Time and Staff Builders shall timely file
all required forms and report the allocation consistent with
such determination by Time.
5.7 Preferred Provider. During the term of the
Management Services, Time will cause AdultCare to use Staff
Builders as a preferred provider in those locations where Time
determines, in its discretion, that Staff Builders has
appropriate facilities and professional skills and expertise.
Any such use shall be on terms with AdultCare that are
commercially reasonable and shall be governed by that certain
provider agreement between Staff Builders and AdultCare, dated
November 1, 1994 (as amended by the letter agreement dated
August 30, 1995).
5.8 Tax Returns. For all periods ending on or before
the Closing Date, Staff Builders will prepare, or cause to be
prepared, and filed on a timely basis all tax returns of
AdultCare, and shall pay all taxes owed by AdultCare, and
AdultCare shall continue to be included in the Group's
consolidated federal income tax returns. Staff Builders will
provide copies to Time of all tax returns with respect to
AdultCare at the time they are filed. Effective as of the
Closing Date, all tax sharing agreements and arrangements that
may exist between AdultCare and the Group, and all of
AdultCare's obligations thereunder, shall terminate, and
AdultCare shall have no liability thereunder for any and all
amounts due with respect to periods prior to the Closing Date.
5.9 Certain Consulting Agreements. Any consulting
(excluding the AdultCare Consulting Agreement with Xxxxxxx
Xxxxxxx), broker's, finder's fee or similar agreements entered
into by Staff Builders or AdultCare in connection with Staff
Builder's purchase of 100% of the AdultCare capital stock in
1994 shall remain the obligation of Staff Builders and shall
not be paid either by Time as part of the Working Capital or
by AdultCare. Without limiting the foregoing, Staff Builders
agrees to assume all obligations of the AdultCare Consulting
Agreement with Xxxxx Xxxxxxxxxxx, dated April 8, 1994.
ARTICLE VI
NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY
6.1 Agreements by Staff Builders.
(a) During the term of the Management Services and,
if Time exercises the Option, for a period of three years
after the closing date of Time's purchase of the Option
Shares, Staff Builders will not on its own behalf or on behalf
of any other person, firm or entity, directly or indirectly,
establish or engage in any care management business relating
to eldercare information, resource or referral, and eldercare
referral or resource business that markets benefits to
employee assistance programs, employee benefit programs,
affinity groups and associations, insurance companies, banks,
credit companies and/or directly to the American public or
other payors within the United States ("Eldercare Services").
The parties acknowledge and agree that Staff Builders is
currently engaged in network management, case management,
disease management and capitation arrangements, and that Staff
Builders may continue engaging in such business without
violating the terms of this Section 6.1.
(b) In addition, in furtherance of, and not in
limitation of, Section 6.1(a), Staff Builders agrees that,
during the term of the Management Services and, if Time
exercises the Option, for a period of three (3) years after
the closing date of the purchase of the Option Shares, Staff
Builders shall not solicit, directly or by assisting others,
any individual who is an employee of AdultCare on the date
hereof for purposes of inducing such individual to become
employed by any person or entity that offers Eldercare
Services.
(c) Staff Builders acknowledges and agrees that, as
a result of Time's performance of its duties hereunder, Staff
Builders may have a unique opportunity to acquire confidential
information and trade secrets of Time, including information
about AdultCare that is developed or becomes known during the
term of the Management Services and that may be the result of
Time's efforts. Staff Builders agrees that the
misappropriation, unauthorized use or disclosure of such
confidential information or trade secrets would cause
irreparable harm to Time. Staff Builders agrees that it will
comply with all applicable laws regarding the protection of
such trade secrets, and that, during the Option Term and for
a period of two (2) years thereafter, it will hold in a
fiduciary capacity for the benefit of Time, and shall not
directly or indirectly use or disclose any confidential
information that Staff Builders may have or acquire during the
Option Term. For purposes of this Section 6.1(c), the
"confidential information" shall mean any and all information
of Time, its affiliates, or AdultCare during the term of the
Management Services, that Time or AdultCare takes care to
treat as confidential; but "confidential information" shall
not include any information (i) that becomes publicly
available other than as a result of a disclosure by Staff
Builders in violation of this Agreement, or (ii) that becomes
available to Staff Builders from a source other than Time, if
the source is not bound by a confidentiality agreement with
Time. For purposes of this Agreement, "trade secret" shall
have the meaning set forth under Florida law.
(d) Staff Builders acknowledges and agrees that it
is the sole shareholder of AdultCare, and that if Time
exercises the Option, all of its shares of common stock of
AdultCare will be exchanged for valuable consideration from
Time. Staff Builders further acknowledges and agrees
(i) that, for such valuable consideration, it is selling its
entire equity interest in AdultCare, (ii) that Staff Builders'
agreeing to these non-competition, non-solicitation and
confidentiality provisions are considered by Time to be an
essential aspect of the Option and Management Services
transactions, and (iii) that the covenants contained in this
Section 6.1 are agreed to in the context of Staff Builders'
sale of its business interest. Staff Builders agrees that
because of such sale of business transaction, the restrictions
on competition, non-solicitation and confidentiality contained
in this Section 6.1 are fair and reasonable and necessary for
the protection of the legitimate business interests of Time.
Staff Builders acknowledges and agrees that the restrictions
contained in this Section 6.1 will not deny it the ability to
generate revenue in its accustomed field or unreasonably
restrict that ability.
6.2 Agreements by Time.
(a) In the event that Time does not exercise the
Option, for a period of two (2) years after termination of the
Management Services, Time will not, as a primary source of
revenue, on its own behalf or on behalf of any other person,
firm or entity, directly or indirectly, engage in the business
of disease management for third parties or network management
and case management for long-term care within the United
States, which is the business currently conducted by AdultCare
and which is referred to in the second Recital of this
Agreement as the "Business."
(b) In addition, in furtherance of, and not in
limitation of, Section 6.2(a), Time agrees that, if it does
not exercise the Option, for a period of two (2) years after
termination of the Management Services, Time shall not
solicit, directly or by assisting others, any individual who
is an employee of AdultCare on the date hereof for purposes of
inducing such individual to become employed by any person or
entity that offers services that directly compete with the
Business.
(c) Time acknowledges and agrees that, as a result
of the performance of its duties hereunder, it may have a
unique opportunity to acquire confidential information and
trade secrets of Staff Builders. Time agrees that the
misappropriation, unauthorized use or disclosure of such
confidential information or trade secrets would cause
irreparable harm to Staff Builders. Time agrees that it will
comply with all applicable laws regarding the protection of
such trade secrets, and that, during the Option Term and for
a period of two (2) years thereafter, it will hold in a
fiduciary capacity for the benefit of Staff Builders, and
shall not directly or indirectly use or disclose any
confidential information that Time may have or acquire during
the Option Term. For purposes of this Section 6.2(c), Staff
Builder's "confidential information" shall mean any and all
information of Staff Builders and its affiliates, other than
AdultCare, that Staff Builders takes care to treat as
confidential; but "confidential information" shall not include
any information (i) that becomes publicly available other than
as a result of a disclosure by Time in violation of this
Agreement, or (ii) that becomes available to Time from a
source other than Staff Builders, if the source is not bound
by a confidentiality agreement with Staff Builders. In the
event that Time does not exercise the Option, Time will also
treat the confidential and trade secret information of
AdultCare in the same fashion as such information of Staff
Builders; provided, however, that any process, idea, know-how
or similar data or information developed by Time during the
term of the Management Services shall be the sole and
exclusive property of Time.
6.3 Procedure. The restrictive covenants contained in
this Article VI are independent of each other and of any other
provision of this Agreement, and the existence of a claim
which one party may allege against the other, whether based on
this Agreement or otherwise, will not prevent the enforcement
of any of these covenants. Each party agrees that the other
party's remedies at law for any breach or threat of breach of
the provisions of this Article VI will be inadequate, and that
the aggrieved party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this
Article and to enforce specifically the terms and provisions
hereof, in addition to any other remedy to which such
aggrieved party may be entitled at law or equity. Should any
provision of these covenants be held invalid, illegal or
unenforceable, in whole or in part, the validity, legality or
enforceability of the remaining part of such provision, and
the validity, legality and enforceability of the other
provisions hereof, shall not be affected hereby. If any
invalidity shall be caused by the length of any period of
time, the size of any area, or the scope of activities set
forth in any provision hereof, such period of time, such area,
such scope or all of such factors, shall be considered to be
reduced to the maximum period, area or scope which would cure
such invalidity and still be enforceable. Any provision of
this Agreement which is held invalid, illegal or unenforceable
in any jurisdiction shall not be deemed invalid, illegal or
unenforceable in any other jurisdiction.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions Precedent of Time to Close Exercise of
Option. If Time Exercises the Option, it shall not be
obligated to close the purchase of the Option Shares until the
prior fulfillment of each of the following conditions (any or
all of which may be waived by Time):
(a) The representations and warranties of Staff
Builders contained in Exhibit A hereto shall be true and
correct in all material respects on and as of the time of
Closing, with the same force and effect as though such
representations and warranties had been made on, as of and
with reference to such time, and Time shall have received a
certificate to such effect signed by an authorized officer of
Staff Builders.
(b) Staff Builders shall have performed in all
material respects all of the covenants and complied with all
of the provisions required by this Agreement to be performed
or complied with by them on or before the Closing, and Time
shall have received a certificate to such effect signed by an
authorized officer of Staff Builders.
(c) Staff Builders shall have obtained all required
consents listed on Schedule 3.8 hereto and no consent shall be
conditioned or restricted in a manner, which in the reasonable
judgment of Time, would so materially adversely impact the
economic or business benefits and assumptions of the
transactions contemplated by this Agreement so as to render
inadvisable the consummation of this Agreement.
(d) Time, in deciding whether to exercise its
Option, shall be permitted to conduct additional due diligence
with respect to AdultCare and Staff Builders. Upon the
satisfactory completion of such diligence, Time may elect to
exercise its Option.
(e) Staff Builders shall have delivered to Time the
certificate or certificates evidencing the Option Shares, duly
endorsed in blank for transfer or accompanied by duly executed
irrevocable stock powers in blank, free and clear of all
liens, encumbrances, pledges, options, voting agreements,
contractual rights or other claims whatsoever.
(f) Staff Builders shall provide the cash for, and
shall cause AdultCare to pay, all deferred compensation and
salary that is due and owing to all AdultCare employees and
AdultCare consultants for all periods prior to November 1,
1995.
(g) Staff Builders shall have provided or performed
any other actions, proceedings, certificates, instruments or
documents reasonably deemed necessary by Time to effectuate
and consummate the transactions contemplated hereby.
7.2. Conditions Precedent of Staff Builders to Close
Exercise of Option. If Time exercises the Option, Staff
Builders shall not be obligated to close the purchase of the
Option Shares until the prior fulfillment of each of the
following conditions (any or all of which may be waived by
Staff Builders):
(a) The representations and warranties of Time
contained in this Agreement shall be true and correct in all
material respects on and as of the time of Closing, with the
same force and effect as though such representations and
warranties had been made on, as of and with reference to such
time, and Staff Builders shall have received a certificate to
such effect signed by an authorized officer of Time.
(b) Time shall have performed in all material
respects all of the covenants and complied with all of the
provisions required by this Agreement to be performed or
complied with by them on or before the Closing, and Staff
Builders shall have received a certificate to such effect
signed by an authorized officer of Time.
(c) Time shall have either: (i) taken actions to
cause Staff Builders to no longer be responsible under its
corporate guarantee on AdultCare's lease for office space at
000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx or
(ii) indemnified Staff Builders for the continuing obligation
of said lease.
(d) Time shall have paid to Staff Builders the
Purchase Price in accordance with Section 2.5.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification of Time. Staff Builders hereby
agrees to indemnify and hold Time and AdultCare harmless from
and against (i) any and all demands, claims, actions or causes
of action, assessments, losses, damages or liabilities (any
"Damage") by reason of or resulting from any breach of any
representation or warranty of Staff Builders contained in this
Agreement, or any breach of any covenant or agreement or
failure to perform any agreement or covenant of Staff Builders
contained in this Agreement, (ii) any Damage or liability
arising out of or in connection with a claim by Xxxxx Xxxxx
for consulting fees owed, (iii) any Damage by reason of or
resulting from the operations of AdultCare prior to the
Closing Date, including, but not limited to, any income tax
liability of any member of the Group, and (iv) any actions,
judgments, costs and expenses (including reasonable attorneys'
fees and all other expenses incurred in investigating,
preparing or defending any litigation or proceeding, commenced
or threatened) (any "Costs") incident to any of the foregoing
or the enforcement of this Section 8.1. For purposes of this
Article VIII, the term "Damage" shall include without
limitation, with respect to any undisclosed liability, the
cost of satisfying such undisclosed liability.
8.2 Indemnification of Staff Builders. Time hereby
agrees to indemnify and hold Staff Builders harmless from and
against (i) all Damages by reason of or resulting from any
breach of any representation or warranty of Time contained in
this Agreement, or any breach of any covenant or agreement or
failure to perform any covenant or agreement of Time contained
in this Agreement, (ii) any liability arising solely as the
result of Time's management of AdultCare, but expressly not
including, without limitation, any liabilities that Staff
Builders will remain obligated to pay as a result of its
continued ownership of the capital stock of AdultCare, such as
taxes, costs of performing financial accounting audits and the
like; and (iii) any Costs incident to any of the foregoing or
the enforcement of this Section 8.2.
8.3 Indemnification Procedures.
(a) If a claim is made, or any suit or action is
commenced for which defense or indemnity is claimed to be due
under Section 8.1 or 8.2, or if knowledge is received of any
other state of facts which, if not corrected, may give rise to
a right of defense or indemnification under Sections 8.1 or
8.2, the party seeking defense or indemnity ("Indemnified
Party") shall give written notice to the party claimed to be
liable on the defense or indemnity obligation ("Indemnifying
Party") as soon as practicable after, but in no event (i) more
than ten (10) days following notice to the Indemnified Party
of any claim, suit or action for which defense or indemnity
will be sought, or (ii) more than thirty (30) days following
the Indemnified Party's knowledge of any other state of facts
which may give rise to a right to defense or indemnity under
Sections 8.1 or 8.2. A failure to give prompt notice shall
not relieve an Indemnifying Party of its obligation to defend
or indemnify, except to the extent the Indemnifying Party is
prejudiced by such failure. The Indemnified Party shall make
available to the Indemnifying Party and its counsel and
accountants at reasonable times and for reasonable periods,
during normal business hours, all books and records of the
Indemnified Party relating to the matter for which defense or
indemnity has been claimed, and each party hereunder will
render to the other such assistance as the other may
reasonably require in order to assure prompt and adequate
defense of any suit, claim or proceeding to which this
Section 8.3 applies.
(b) If defense or indemnification is sought with
respect to a claim, suit or other proceeding against the
Indemnified Party, the Indemnifying Party shall have the right
to defend, compromise and settle the matter in the name of the
Indemnified Party to the extent that the Indemnifying Party
may be liable to the Indemnified Party under Section 8.1 or
8.2 hereof; provided, however, that the Indemnifying Party
shall not compromise or settle a suit, claim or proceeding
unless it assumes the obligation to indemnify for all losses
relating thereto. The Indemnifying Party shall notify the
Indemnified Party promptly if the Indemnifying Party elects to
assume the defense of any such claim, suit or action. In
assuming the defense of a matter hereunder, the Indemnifying
Party shall have the right to select counsel, provided that
the Indemnified Party does not object to such counsel in a
reasonable exercise of its discretion. The Indemnified Party
shall have the right to employ its own counsel who may
associate with the counsel designated by the Indemnifying
Party (upon the Indemnifying Party's assumption of the defense
of the matter), but the fees and expenses of such counsel
shall be at the Indemnified Party's expense.
(c) The Indemnified Party may at any time notify
the Indemnifying Party of its intention to settle or
compromise any claim, suit or action against the Indemnified
Party in respect of which indemnification payments may be
sought from the Indemnifying Party hereunder, but shall not
settle nor compromise any matter for which indemnification may
be sought, notwithstanding this Section 8.3(c), in excess of
$1,000 without the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld. Any settlement or
compromise of any claim, suit or action in accordance with the
preceding sentence, or any final judgment or decree entered on
or in, any claim, suit or action in which the Indemnifying
Party did not assume the defense in accordance herewith, shall
be deemed to have been consented to by, and shall be binding
upon, the Indemnifying Party as fully as if the Indemnifying
Party had assumed the defense thereof and a final judgment or
decree had been entered in such suit or action, or with regard
to such claim, by a court of competent jurisdiction for the
amount of such settlement, compromise, judgment or decree.
(d) The Indemnifying Party shall be subrogated to any
claims or rights of the Indemnified Party as against any other
persons with respect to any amount paid by the Indemnifying
Party under this Article VIII. The Indemnified Party shall
cooperate with the Indemnifying Party, at the Indemnifying
Party's expense, in the assertion by the Indemnifying Party of
any such claim against other persons.
ARTICLE IX
ARBITRATION
9.1 Agreement to Arbitrate. Any claim, controversy or
dispute arising out of or relating to this Agreement, on which
an amicable understanding cannot be reached, to the maximum
extent allowed by applicable law and irrespective of the type
of relief sought, shall be submitted to and resolved by
arbitration, and such arbitration shall be the sole remedy for
such matter. Such arbitration shall be heard and conducted in
New York, New York and shall be conducted expeditiously and
confidentially in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"), as such
rules shall be in effect on the date of delivery of demand for
arbitration, with the exception that the arbitrators may not
award any punitive or exemplary damages or any damages other
than compensatory, and except as such rules may be otherwise
inconsistent with the express provisions of this Article IX.
9.2 Initiating Arbitration. To initiate arbitration, a
party shall notify the other party in writing of its desire to
arbitrate, stating the nature of its dispute and the remedy
sought. The receiving party shall acknowledge receipt of the
notice in writing within five (5) days, and thereafter the
parties shall attempt in good faith to resolve the dispute
within fifteen (15) days. If the dispute cannot be resolved
within such fifteen (15) day period, any party may file a
written demand for arbitration by filing a written notice with
the AAA and with the other party, complying with the AAA's
prescribed procedures for such notices. Within fifteen (15)
days of delivery of such demand for arbitration, each party
shall appoint one arbitrator, and the arbitrators so selected
shall, within fifteen (15) days of their appointment, appoint
an additional arbitrator. In the event that the arbitrators
selected by the parties are unable to agree upon the selection
of the additional arbitrator after reasonable efforts within
such fifteen (15) day period, a list of seven (7) qualified
and available persons shall be requested from the AAA. The
parties shall take turns striking one person each from the
list, with the last remaining person being the additional
selected arbitrator. Once selected, the arbitration panel
shall meet as expeditiously as possible, select a chairman,
schedule the arbitration hearing, and notify the parties in
writing of the date, time and place of the hearing.
9.3 Effect. All conclusions of law reached by the
arbitrators shall be made in accordance with the internal laws
of the State of Florida without regard for its conflict of
laws doctrine. Any award rendered by the arbitrators shall be
accompanied by a written opinion setting forth the findings of
fact and conclusions of law relied upon in reaching their
decision. The award rendered by the arbitrators shall be
final, binding and non-appealable, and judgment upon such
award may be entered by any court having jurisdiction thereof.
The parties agree that the existence, conduct and content of
any such arbitration shall be kept confidential and no party
shall disclose to any person any information about such
arbitration, except as may be required by law or for financial
reporting purposes in each party's financial statements.
9.4 Costs. Each party shall pay the fees of its own
arbitrator, attorneys, expenses of witnesses and all other
expenses in connection with the presentation of such party's
case. The remaining costs of the arbitration, including,
without limitation, fees of the additional arbitrator, costs
of records or transcripts and administrative fees, shall be
borne by the parties as designated by the arbitrators.
ARTICLE X
MISCELLANEOUS
10.1 Survival of Representations and Warranties. All
representations, warranties, covenants and agreements made in
this Agreement or in any certificate or instrument delivered
pursuant to this Agreement shall survive the execution hereof
and any exercise and closing of the Option.
10.2 Entire Agreement. This Agreement, and Schedules
attached hereto and the documents specifically referred to
herein or executed and delivered concurrently herewith,
constitute the entire agreement, understanding,
representations and warranties of the parties hereto and
supersede any prior agreement, understanding, representation,
warranty or documents relating to the subject matter of this
Agreement.
10.3 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be
deemed to have been duly given, if delivered in person, by
United States mail (certified postage prepaid, return receipt
requested), by overnight delivery service, or by facsimile
transmission with a confirmation copy by any other means
permitted hereunder, to the respective parties as follows:
(a) If to Time:
Xxxx Xxxxxxxx
Time Insurance Company
000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to Staff Builders:
Staff Builders, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Staff Builders, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Silver
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as the party to be notified shall
have furnished to the other party in writing.
10.5 Amendments. This Agreement may be amended or
modified only by a written instrument executed by each of the
parties hereto, or by their respective successors and assigns.
10.6 Costs and Expenses. All costs and expenses incurred
in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
expenses, including that Staff Builders, and not AdultCare,
shall be responsible for its expenses, regardless of whether
the transactions contemplated hereby are consummated.
10.7 Further Assurances. From time to time after the
date hereof, upon request of Time and without further
consideration, Staff Builders shall execute, acknowledge and
deliver all such other instruments of sale, assignment,
conveyance and transfer, in form and substance satisfactory to
Time, and shall take all such other action as may reasonably
be required for the consummation of the transactions
contemplated hereby.
10.8 Severability, Enforceability. Should any part of
this Agreement for any reason be declared by any court of
competent jurisdiction to be invalid, such decision shall not
affect the validity of the remaining portion, which shall
continue in full force and effect as if this Agreement had
been executed with the invalid portion eliminated therefrom.
Staff Builders acknowledges and agrees that any breach or
nonperformance of this Agreement will cause irreparable damage
to Time, and Staff Builders therefore agrees that this
Agreement and the Option herein contained shall be
specifically enforceable.
10.9 Assignability. This Agreement and the Option
contained herein shall be binding upon and inure to the
benefit of each party's successors, heirs and assigns;
provided, however, that neither party to this Agreement may
assign this Agreement or the Option contained herein without
the prior written consent of the other party, except Time may
assign this Agreement or the Option to a Time affiliate
without the prior written consent of Staff Builders.
10.10 Interpretations. Neither this Agreement nor
any uncertainty or ambiguity herein shall be construed or
resolved against any party hereto, whether under any rule of
construction or otherwise. No party shall be considered the
draftsman. On the contrary, this Agreement has been reviewed,
negotiated and accepted by all parties and their lawyers and
shall be construed and interpreted according to the ordinary
meaning of the words used so as to fairly accomplish the
purposes and intentions of all parties hereto.
10.11 Miscellaneous. This Agreement (i) shall be
construed and enforced in accordance with the internal laws of
the State of Florida without regard for its conflict of laws
principles, and (ii) may be executed in two or more
counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument. The captions and other headings combined in this
Agreement or in the Schedules hereto are for convenience of
reference only and shall not affect in any way the meaning or
interpretation of this Agreement. Nothing in this Agreement,
express or implied, is intended to confer upon any person
other than Time and Staff Builders any rights or remedies
hereunder.
[Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above written.
STAFF BUILDERS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: President
Attest: /s/ Xxxxx Xxxxxxxx
Secretary
TIME INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: President
Attest: /s/ Xxxx X. Xxxxxxxxx
Secretary
