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EXHIBIT 10.1
AGREEMENT
This Agreement is made and entered into as of the Effective Date (as
hereinafter defined) by and among Just Like Home, Inc., a Florida corporation
("JLH/F"), Just Like Home, Inc., a Nevada corporation ("JLH/N"), Xxxxxxxx'x
Landing, Inc., a Florida corporation ("WL"), Xxxxx Xxxxxxxxxx ("JD"), Xxxxx
Xxxxxxxxxx and Xxxxxxx X. Xxxxxxx as Co-Personal Representatives of the Estate
of Xxxxxxx X. Xxxxxxxxxx (the "Estate"), Community Assisted Living Centers,
Inc., a Florida corporation ("CAL") and Xxxxxxx X. Xxxxxx and Xxxxxxxxx X.
Xxxxxx, husband and wife (collectively, "Xxxxxx").
SECTION 1. RECITATION OF FACTS.
1.1 JD and WL are plaintiffs and JLH/F and JLH/N are defendants in
that certain litigation filed in the Circuit Court of the Twelfth Judicial
District in and for Sarasota County, Florida being Case No. 96-1978-CA-01 (the
"Litigation"). The Estate is the successor in interest to Xxxxxxx X. Xxxxxxxxxx
as shareholder relative to the stock of WL.
1.2 The Litigation involves, inter alia, (i) claims associated
with the issuance to JD and Xxxxxxx X. Xxxxxxxxxx of share certificate No. JLH
0036 for seventy five thousand (75,000) shares of the common stock of JLH/F and
the issuance to WL of share certificate No. JLH 0035 for one hundred and thirty
nine thousand eight hundred and eighty two (139,882) shares of the common stock
of JLH/F (collectively, the "Stock") and (ii) and claims associated with the
obligations of JLH/N and JLH/F under certain promissory notes in favor of WL in
the aggregate amount of Four Hundred and Twenty Five Thousand Dollars
($425,000.00) (collectively, the "Notes").
1.3 CAL is contemplating a merger (the "Merger") with JLH/F which
will result in JLH/F being the surviving corporation. The Xxxxxx'x are the
original incorporators of and stockholders of JLH/F.
1.4 Xxxxxx was previously a stockholder in Conosier, Inc., a
Florida corporation ("Conosier"). Conosier is the owner of certain real
property situated in Manatee County, Florida. Xxxxxx holds an unrecorded
quit-claim deed (the "Deed") to that portion of the Conosier property described
in Exhibit 1 hereof.
1.5 As a condition precedent to their obligations hereunder, JD,
the Estate and WL have required that CAL, Conard, JLH/F and JLH/N enter into
this Agreement and perform the terms hereof. As a condition precedent to the
Merger, CAL has required that the Litigation be dismissed.
1.6 As specified above, although JLH/F will be the surviving
corporation upon the completion of the Merger, its chief operating, executive
officers and management personnel will be the current chief operating,
executive officers and management personnel of CAL.
1.7 The parties have entered into this Agreement in consideration
of the mutual covenants and undertakings contained herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by all of the parties hereto.
1.8 The parties acknowledge and agree that the Stock was duly and
validly issued, is outstanding, is duly paid and non-assessable, has no
restrictions on its alienation or transferability and was never cancelled,
rescinded or revoked and JLH/F acknowledges and agrees that any purported
cancellation of the Stock was and is void ab initio.
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SECTION 2. AGREEMENTS OF JLH/F.
2.1 JLH/F will grant in favor of JD, as to a thirty-five percent
(35%) interest and WL as to a sixty-five percent (65%) interest, at the time of
the Merger, the option to purchase fifty thousand (50,000) shares of the common
stock of JLH/F (the "Option Stock") within two (2) years of the effective date
of the Merger at a purchase price of Two Dollars ($2.00) per share (the
"Option"). The parties agree that the Stock and the Option Stock (as and when
the latter is acquired pursuant to the terms of the Option) shall, at the option
of JD and/or WL (collectively, the "Owners") be purchased by JLH/F in the manner
and under the terms specified below (the "Put").
2.1.1 JLH/F shall be required to purchase the Stock and/or
the Option Stock at any time for a thirty (30) day period after the second
anniversary of the Closing Date (as defined below) for a price per share equal
to the Purchase Price (as defined below).
2.1.2 The purchase price (the "Purchase Price") for any
portion of the Stock and/or the Option Stock which is tendered pursuant to the
Put shall be the sum of Four Dollars ($4.00) per share. In the event of any
stock splits, recapitalizations, reverse splits or other similar actions by
JLH/F, the Purchase Price shall be applicable on a pro-rata basis to the number
of shares then held by the Owners, but in no event shall the Purchase Price be
less than that applicable to the Stock and the Option Stock if the Put were
exercisable as of the date hereof and if a diminution in the number of shares
of the Stock and/or the Option Stock should occur by virtue of corporate
actions taken by JLH/F, then the Put shall be applicable, and the Purchase
Price shall be determined, as though such diminution has not occurred.
2.1.3 The number of shares of Option Stock and the Purchase
Price for the Put will be adjusted to give effect to any stock dividends paid
with respect to Stock prior to the second anniversary of the Merger. Such
stock dividends shall be subject to the Put by the Owners at the Purchase
Price, as adjusted, in the same manner as the Stock and the Option Stock are
subject to the Put hereunder
2.1.4 The Put may be exercised by the Owners, or either of
them, or their permitted assignees (as defined below), in one transaction as to
a portion or all of the Stock and/or the Option Stock, but the Put shall expire
as to all of the Stock and/or the Option Stock as to which the Put has not been
exercised thirty (30) days after the second anniversary of the Closing Date.
2.1.5 In order to exercise the Put as to any or all of the
Stock and/or the Option Stock, the Owners, or either of them or their permitted
assignees, shall notify JLH/F of its or their intention to exercise in the
manner provided for notices herein (the "Notice"). The Notice shall specify
the number of shares for which the Put is to be exercised and the date upon
which presentment of the shares for which the Put has been exercised will be
made, which such date (the "Presentment Date") shall be not less than ten (10)
days from the date on which the Notice has been mailed to JLH/F. Presentment
of the shares for which the Put has been exercised on the Presentment Date
shall be made in person at the principal office of JLH/F, which such principal
office shall be deemed to be at the address within the State of Florida as
filed with the Secretary of State of the State of Florida for JLH/F, unless
JLH/F shall notify the Owners, in the manner provided herein, of a change of
address of the registered office of JLH/F.
2.1.6 Certificates for the Stock and/or the Option Stock
held by the Owner or the permitted assignee who is exercising the Put shall be
presented on the Presentment Date, duly endorsed for transfer, and JLH/F shall
(i) deliver to such Owner or permitted assignee the Purchase Price relative to
the number of shares for which the Put has been exercised in the form of a
cashier's check issued from the office of a bank doing business in Sarasota
County, Florida and payable at the office or branch office of
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such institution in Sarasota County, Florida and (ii) deliver to such Owner or
permitted assignee at the time of presentment, a replacement certificate for
the number of shares of JLH/F owned by the Owner making the presentment as are
not being purchased pursuant to the terms of Put, as specified in the Notice
from such Owner or permitted assignee. Such replacement certificate shall be
executed by the president and secretary of JLH/F and shall be deemed as fully
paid and non-assessable.
2.2 It is understood and agreed by the parties that the Put is
exercisable solely at the option of the Owners or their permitted assignees.
The Owners have the right to transfer the Stock and/or the Option Stock in any
market transaction without reference to the Put. The Put can be initiated only
by an Owner, or the permitted assignee of an Owner, and upon a Notice being
given by an Owner and after the giving of a Notice, JLH/F shall be obligated to
purchase the Stock and/or the Option Stock in such amounts as may be specified
in the Notice. For the purposes of this Agreement, a "permitted assignee"
shall be limited to any entity in which JD, the Estate or the beneficiaries of
the Estate own the legal or beneficial interests of such entity.
2.3 JLH/F agrees that if JD and/or WL and/or a permitted assignee
wishes to exercise the Put relative to the Option Stock at the time they
exercise the Option, they may notify JLH/F of both the exercise of the Option
and the exercise of the Put at any time during the term of the Option. Should
this occur, the Option Stock will not be issued to JD and/or WL or a permitted
assignee and on the date the Put becomes operative, JLH/F will pay the Purchase
Price relative to the Option Stock to JD and/or WL and/or a permitted assignee
without the necessity of the issuance and tender of the Option Stock.
SECTION 3. ACTIONS BY ALL PARTIES. Subject to the conditions precedent
specified herein, on the date the Merger is consummated (the "Closing Date"),
but in no event later than April 11, 1997, the following shall occur:
3.1 JLH/F shall execute and deliver the Option in favor of JD, as
to a thirty-five percent (35%) interest, and WL as to a sixty-five percent
(65%) interest.
3.2 Xxxxxx shall deliver to the Estate the original of the Deed
and shall execute and deliver to Conosier, Inc., in recordable form, a
quit-claim deed for the property described in Exhibit 1 hereof.
3.3 Xxxxxx, JLH/F and JLH/N shall be deemed to have released and
by their execution hereof shall have released on behalf of themselves and on
behalf of all their predecessors, successors, affiliates, subsidiaries, parent
companies, heirs, administrators, personal representatives and assigns, JD, the
Estate, WL and Conosier, Inc., their predecessors, successors, affiliates,
subsidiaries, parent companies, heirs, administrators, personal
representatives, their past and present employees, officers, directors and
shareholders and assigns of and from any and all claims, disputes, demands,
causes of action, damages, judgments or suits at law or equity of any kind
whatsoever, through the Closing Date, whether direct or contingent, liquidated
or unliquidated, patent or latent, known or unknown, foreseen or unforeseen;
provided, however, that this release shall not be applicable to any obligations
of the released parties pursuant to this Agreement.
3.4 JD and WL shall be deemed to have released and by their
execution hereof shall have released JLH/N and JLH/F from any and all liability
relative to the indebtedness represented by the Notes, inclusive of principal,
interest, penalties or any other sums due and owning thereunder.
3.5 JD, the Estate, WL and Conosier, Inc., shall be deemed to have
released and by their execution hereof shall have released on behalf of
themselves and on behalf of all their predecessors,
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successors, affiliates, subsidiaries, parent companies, heirs, administrators,
personal representatives and assigns in favor of Xxxxxx, JLH/F and JLH/N, their
predecessors, successors, affiliates, subsidiaries, parent companies, heirs,
administrators, personal representatives, their past and present employees,
officers, directors and shareholders and assigns of and from any and all claims,
disputes, demands, causes of action, damages, judgments or suits at law or
equity of any kind whatsoever, through the Closing Date, whether direct or
contingent, liquidated or unliquidated, patent or latent, known or unknown,
foreseen or unforeseen; provided, however, that this release shall not be
applicable to any obligations of the released parties pursuant to this
Agreement.
3.6 The plaintiffs and defendants relative to the Litigation shall
dismiss all claims, counterclaims, crossclaims and third-party claims by and
between the said parties, with prejudice and each party shall bear its own
costs, attorneys' fees, paralegals' fees and legal assistants' fees relative
thereto.
SECTION 4. CONDITIONS PRECEDENT. The following, at the option of the
party for whom the condition must be satisfied, shall be conditions precedent
to such party's obligation to perform hereunder, and in the event any of said
conditions are not satisfied on or before the date specified, such affected
party may terminate this Agreement by delivering to the other parties hereto
written notice so indicating within the applicable time period.
4.1 The Merger shall occur and the Plan and Agreement of Merger
shall be accepted by and filed with the Secretary of State of the State of
Florida on or before March 31, 1997 (the "Closing Date").
4.2 WL, the Estate and JD shall have received, on or before the
Closing Date, an opinion of the securities counsel for CAL and JLH/F, in form
and content satisfactory to counsel for WL, the Estate and JD to the effect that
(i) the Option and Put are the valid and binding obligations of JLH/F, according
to their terms and conditions; (ii) immediately after the Merger, the
obligations specified in this Agreement relative to the Put shall be the valid
and binding obligations of JLH/F; (iii) all necessary corporate action has been
taken by CAL and JLH/F to authorize the transactions contemplated by this
Agreement and performance of same thereunder; and (iv) the execution and
delivery of the this Agreement by CAL, the subsequent performance of this
Agreement by JLH/F and the resolution of JLH/F specified in sub-section 4.3
below do not violate either CAL's or JLH/F's Articles of Incorporation or bylaws
or other organizational documents
4.3 CAL shall have caused to be delivered to JD, the Estate and WL
on or before the date of the Merger a corporate resolution of JLH/F, in form
and content satisfactory to counsel for JD, the Estate and WL which ratifys and
acknowledges the obligations of JLH/F pursuant to this Agreement, including,
without limitation, the rights of JD, the Estate and WL with respect to the
Option and the Put and the warranty of JLH/F and CAL that this Agreement does
not constitute a breach of or a default under any agreement or document to
which either corporation is a party or by which it or its assets are bound or
violate any judgment, decree or order of any court or administrative tribunal,
which judgment, decree or order is binding upon either corporation or its
assets or violate any federal or Florida law, rule or regulation.
4.4 The beneficiaries of the Estate shall have approved the terms
and conditions of this Agreement on or before the date of the Merger.
4.5 WL, the Estate and JD will have received, on or before the
Closing Date, an opinion of securities counsel for CAL and JLH/F addressed to
the stock transfer agent for JLH/F authorizing the stock transfer agent to
remove the restrictive legend on the stock certificates for the Stock which
such opinion will be effective for any date after April 29, 1997.
SECTION 5. MISCELLANEOUS.
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5.1 Any notice, demand or other communication required or
permitted to be given to any party hereunder shall be in writing, and shall be
deemed to have been delivered when actually received or, regardless of whether
or not received, the third business day after deposit in the United States
mail, registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective party at the address indicated below, or to such
other address as may hereafter be indicated by written notice delivered in
accordance with the terms hereof to the other parties:
If to WL, JD, or the Estate: % Xxxxxxx X. Xxxxxxx, Esq., Xxxx, Band, Russell,
Collier, Xxxxxxxxx and Xxxxxx Chartered, 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx, 00000.
If to CAL, XXX/X, XXX, XXX/X, or Xxxxxx: % ______________________
_________________________________________________________________.
5.2 In the event of breach of this Agreement by any party, the
non-defaulting parties shall have the right to pursue any remedy provided by
applicable law, including specific performance.
5.3 Any party failing to comply with the terms of this Agreement
will pay all expenses, including reasonable attorneys' fees, paralegal, legal
assistant and similar fees and costs, including those incurred on the appellate
level, incurred by any other party to this Agreement as a result of such
failure.
5.4 This Agreement and documents relating to same shall be
construed under the laws of the State of Florida. The venue of any action or
suit brought in connection herewith shall be in Sarasota County, Florida.
5.5 The provisions of this Agreement shall bind the heirs,
successors, personal representatives and assigns of the parties hereto.
5.6 The parties hereto acknowledge that they have read, understand
and have had the opportunity to be advised by legal counsel as to each and
every one of the terms, conditions, restrictions and effect of all of the
provisions of this Agreement, and each agrees to the enforcement of any and all
of these provisions and executes this Agreement with full knowledge of these
provisions. Should any provision of this Agreement require judicial
interpretation, it is agreed that the court interpreting or construing the
provision shall not apply a presumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
a document is to be construed more strictly against the party who itself or
through its agent prepared the document. Any handwritten or typed additions to
this Agreement which have been initialed by the parties shall control over any
inconsistent printed terms.
5.7 Time is of the essence to this Agreement.
5.8 The provisions of this Agreement shall survive the
consummation of the transactions contemplated hereunder.
5.9 The Effective Date of this Agreement will be the date on which
the last of the parties hereto executes same.
5.10 This Agreement may be executed in one or more counterparts.
It shall be fully executed when each party whose signature is required has
signed at least one counterpart even though no one counterpart contains the
signatures of all the parties.
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In witness whereof the parties have executed this Agreement as of the
date set forth in the signature line for each party.
WITNESSES: Community Assisted Living
Centers, Inc., a Florida
corporation
By: /s/ Xxxx X. Xxxxxxxx
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/s/ Xxxxxxxxx X. XxXxxxx Print Name:
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Print Name Xxxxxxxxx X. XxXxxxx As Its: President
------------------------ --------------------------------
Date: 4-9-97
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/s/ Xxxxxxxx XxXxxxx
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Print Name Xxxxxxxx XxXxxxx
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Xxxxxxxx'x Landing, Inc.,
a Florida corporation
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxxxxx X. XxXxxxx Print Name:
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Print Name Xxxxxxxxx X. XxXxxxx As Its:
------------------------ --------------------------------
Date: 4-9-97
----------------------------------
/s/ Xxxxxxxx XxXxxxx
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Print Name Xxxxxxxx XxXxxxx
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/s/ Xxxxxxxxx X. XxXxxxx /s/ Xxxxx Xxxxxxxxxx
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Print Name Xxxxxxxxx X. XxXxxxx Xxxxx Xxxxxxxxx
------------------------
/s/ Xxxxxxxx XxXxxxx Date: 4-9-97
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Print Name Xxxxxxxx XxXxxxx
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/s/ Xxxxxxxxx X. XxXxxxx /s/ Xxxxx Xxxxxxxxxx
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Print Name Xxxxxxxxx X. XxXxxxx Xxxxx Xxxxxxxxxx, as
------------------------ Co-Personal Representative
of the Estate of Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxxx XxXxxxx
---------------------------------- Date: 4-9-97
Print Name Xxxxxxxx XxXxxxx ----------------------------------
------------------------
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/s/ Xxxxxxxxx X. XxXxxxx /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- ---------------------------------------
Print Name Xxxxxxxxx X. XxXxxxx Xxxxxxx X. Xxxxxxx, as
------------------------ Co-Personal Representative
of the Estate of Xxxxxxx X.
Xxxxxxxxxx
/s/ Xxxxxxxx XxXxxxx
---------------------------------- Date: 4-9-97
Print Name Xxxxxxxx XxXxxxx ----------------------------------
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/s/ Xxxxxxxxx X. XxXxxxx /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ---------------------------------------
Print Name Xxxxxxxxx X. XxXxxxx Xxxxxxx X. Xxxxxx
------------------------ Date: 4-9-97
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/s/ Xxxxxxxx XxXxxxx
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Print Name Xxxxxxxx XxXxxxx
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/s/ Xxxxxxxxx X. XxXxxxx /s/ Xxxxxxxxx X. Xxxxxx
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Print Name Xxxxxxxxx X. XxXxxxx Xxxxxxxxx X. Xxxxxx
------------------------ Date: 4-9-97
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/s/ Xxxxxxxx XxXxxxx
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Print Name Xxxxxxxx XxXxxxx
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Just Like Home, Inc., a
Florida corporation
/s/ Xxxxxxxxx X. Xxxxxx
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/s/ Xxxxxxxxx X. XxXxxxx Print Name:
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Print Name Xxxxxxxxx X. XxXxxxx As Its: President
------------------------ --------------------------------
Date: 4-9-97
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/s/ Xxxxxxxx XxXxxxx
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Print Name Xxxxxxxx XxXxxxx
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Just Like Home, Inc., a Nevada
corporation
/s/ Xxxxxxxxx X. Xxxxxx
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/s/ Xxxxxxxxx X. XxXxxxx Print Name:
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Print Name Xxxxxxxxx X. XxXxxxx As Its: President
------------------------ --------------------------------
Date: 4-9-97
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/s/ Xxxxxxxx XxXxxxx
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Print Name Xxxxxxxx XxXxxxx
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/s/ Xxxxxxxxx X. XxXxxxx /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- ---------------------------------------
Print Name Xxxxxxxxx X. XxXxxxx Xxxxxxx X. Xxxxxxx, as
------------------------ Co-Personal Representative
of the Estate of Xxxxxxx X.
Xxxxxxxxxx
/s/ Xxxxxxxx XxXxxxx
---------------------------------- Date: 4-9-97
Print Name Xxxxxxxx XxXxxxx ----------------------------------
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/s/ Xxxxxxxxx X. XxXxxxx /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ---------------------------------------
Print Name Xxxxxxxxx X. XxXxxxx Xxxxxxx X. Xxxxxx
------------------------ Date: 4-9-97
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/s/ Xxxxxxxx XxXxxxx
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Print Name Xxxxxxxx XxXxxxx
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/s/ Xxxxxxxxx X. XxXxxxx /s/ Xxxxxxxxx X. Xxxxxx
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Print Name Xxxxxxxxx X. XxXxxxx Xxxxxxxxx X. Xxxxxx
------------------------ Date: 4-9-97
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/s/ Xxxxxxxx XxXxxxx
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Print Name Xxxxxxxx XxXxxxx
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