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Exhibit 2.2.1
UNISON -- PLASH/XXXXXXXXX
AGREEMENT FOR PURCHASE OF SHARES
AS OF NOVEMBER 24, 1996
This Agreement is by and among Unison HealthCare Corporation, a
Delaware corporation ("Unison"), Xxxx X. Xxxxxxxxx ("Xxxxxxxxx") and Xxxxx X.
Xxxxx ("Plash" and together with Xxxxxxxxx, "Sellers").
Unison desires to buy and Sellers desire to sell all of the issued and
outstanding stock of four corporations, namely, Decatur SportsFit & Wellness
Center, Inc., an Alabama corporation, Therapy Health Systems, Inc., a
Mississippi corporation, Xxxxxxxxx & Associates Rehabilitation, Inc., an Alabama
corporation, and Sunbelt Therapy Management Services, Inc., an Alabama
corporation (collectively, "Sunbelt"), owned by Sellers, on the terms and
conditions set forth in this Agreement (the "Transaction").
1. The Sale of Stock. Effective as of January 1, 1996, or such later
date as the parties may determine, but subject to the approval of this
transaction by Unison's Board of Directors and such other approvals, if any, as
may be required pursuant to Unison's Indenture dated October 31, 1996, in
respect of its Senior Notes due 2006, Sellers shall transfer to Unison all of
the shares of issued and outstanding common stock of Sunbelt owned by them or
either of them (the "Shares"). The Shares shall include all issued and
outstanding shares of Sunbelt which are not currently owned by Unison. At the
time of the transfer of the Shares, all of the Shares shall be owned
beneficially and of record by Sellers, and shall be free and clear of liens,
encumbrances, security agreements, options, claims, charges and restrictions of
any type.
2. Purchase Price. The purchase price for the Shares (the "Purchase
Price") shall be $1,417,500, plus a contingency payment determined in accordance
with Section 2(c), all of which shall be payable at the times and in the manner
described in Sections 2(a) through 2(f). For purposes of this Agreement, the
notes described in Sections 2(a) and 2(b) are described collectively as the
"Notes."
(a) $125,000 shall be payable to each of the Sellers in the form
of a note dated November 27, 1996, in the principal amount of
$125,000, which shall bear simple interest at a rate of 9% per
year, with all principal and interest payable on January 17,
1997.
(b) $458,750 shall be payable to each of the Sellers in the form
of a note dated November 27, 1996, in the principal amount of
$458,750, which shall bear simple interest at a rate of 9% per
year, with interest payable on January 17, 1997 and quarterly
on the first business day of each quarter thereafter beginning
in April 1997, and all principal due in a single payment on
January 5, 1998.
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Unison -- Plash/Xxxxxxxxx
November 24, 1996
Page 2
(c) An additional amount (the "Contingency Payment") shall be paid
to Sellers on the basis of the extent to which Sunbelt
achieves its budgeted pretax profit for 1997. Such payments
will be calculated in the manner set forth in this Section
2(c), and 50% of any amount so calculated will be paid to each
of the Sellers.
(i) If Sunbelt achieves 100% of its budgeted pretax
profit for 1997, Sellers shall be entitled to receive
a Contingency Payment totalling $1,417,500. If
Sunbelt achieves a higher or lower percentage of its
budgeted pretax profit for 1997, the same percentage
shall be applied to $1,417,500 in determining the
amount of the Contingency Payment; provided that the
total Contingency Payment shall never be less than
$708,750 (the "Guaranteed Amount"), nor more than
$2,126,250. Thus, by way of example, if Sunbelt
achieves 110% of its budgeted pretax profit, the
total Contingency Payment will equal 110% of
$1,417,500, or $1,559,250. Similarly, if Sunbelt
achieves only 90% of its budgeted pretax profit, the
total contingency will equal 90% of $1,417,500, or
$1,275,750.
(ii) Budgeted pretax profits for Sunbelt for 1997 shall be
as determined by the Board of Directors of Unison,
but shall not exceed $6,715,000.
(d) The Guaranteed Amount ($708,750) shall bear simple interest at
a rate of 9% per year from November 27, 1996. Interest on the
Guaranteed Amount shall be payable on January 17, 1997 and
quarterly on the first business day of each quarter thereafter
beginning in April 1997. The actual amount of the Contingency
Payment will be determined by the Unison Board promptly after
the completion of Unison's audit for the fiscal year ending
December 31, 1997. One half of the Contingency Payment, plus
all accrued but unpaid interest on the Guaranteed Amount,
shall be payable to each of the Sellers, in a single payment,
on January 4, 1999.
(e) No later than five days before the principal payment date of
any of the Notes, or the date on which the Contingency Payment
is due to be paid, either Unison or Sellers may notify the
other parties to this Agreement that a portion of the
principal or Contingent Payment, which may not exceed 50%,
will be paid in Unison Common Stock. The number of shares of
Unison Common Stock used in payment of such principal or
Contingent Payment shall be determined by dividing the dollar
amount for which the shares are being issued by the average
closing price for Unison Common Stock for the 20 trading days
immediately preceding the date on which the note in question
becomes due.
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Unison -- Plash/Xxxxxxxxx
November 24, 1996
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(f) Promptly after the execution of this Agreement, Unison will
issue to each Seller 13,971 shares of Unison's Common Stock.
The number of shares issuable to each Seller was calculated by
dividing $125,000 by $8.94685, which is the average closing
price for Unison Common Stock for the 20 trading days
immediately preceding November 27, 1996.
(g) Unison, Sunbelt Therapy Management Services, Inc., an Arizona
corporation, and Sellers entered into a Purchase and Sale
Agreement dated as of February 1, 1996 (the "Purchase
Agreement"). Pursuant to the Purchase Agreement, Unison and
Sellers agreed to the terms and conditions of a registration
rights agreement covering the shares of Unison Common Stock
issuable upon conversion of the Convertible Debentures and
Notes (collectively, the "Convertible Instruments") issued by
Unison to Sellers under the Purchase Agreement but did not
execute a writing evidencing such rights. Unison and Sellers
now agree to execute and deliver a registration rights
agreement on substantially the following terms: (i) extension
of the registration rights previously granted to shares of
Unison Common Stock issued pursuant to Sections 2(e) and 2(f),
above; (ii) Sellers will have three demand registration rights
on Form S-3; (iii) Sellers will not be entitled to
registration of shares if the shares may then be sold under
Rule 144; (iv) registration may be limited by a managing
underwriter as necessary to complete an offering and
reasonably postponed by Unison under limited, customary
circumstances; (v) agreements of Sellers to execute any
underwriting agreements; (vi) customary provisions relating to
mutual indemnification and responsibility for registration and
selling costs; and (vii) a mutually acceptable time period for
exercise of such rights.
3. Investigation. Unison hereby grants to Sellers, and the agents,
accountants, attorneys and representatives of Sellers, full and complete access
to all of the books, records, financial statements, facilities, key personnel
and other documents and materials relating to Unison's financial condition,
assets, liabilities and business.
4. Representations and Warranties of Sellers. Each Seller hereby
represents and warrants to Unison that:
a. Such Seller owns good and marketable title to all of his Shares,
free and clear of all liens, encumbrances, security agreements, options, claims,
charges and restrictions of any type and has full right, and all necessary power
and authority, to enter into this Agreement, to sell assign, transfer and
deliver the Shares to Unison as contemplated herein and to enter into all
documents contemplated hereby, to perform his obligations hereunder and
thereunder and
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Unison -- Plash/Xxxxxxxxx
November 24, 1996
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to consummate the transactions contemplated hereby and thereby. Such Seller is
not party to any voting trust agreement or similar arrangement restricting
voting rights or transferability of any of the Shares.
b. The Notes to be acquired by such Seller hereunder and any of
Unison's Common Stock issuable with respect to the Notes are being acquired by
such Seller for his own account and not with the view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act of 1933 (the "1933 Act"). Such Seller understands that
neither the Notes nor the shares of Unison Common Stock issuable upon conversion
of the Notes have been registered under the 1933 Act by reason of their issuance
in transactions exempt from the registration and prospectus delivery
requirements of the 1933 Act pursuant to Section 4(2) thereof and agrees to
deliver to Unison, if requested by Unison, an investment letter in customary
form. Such Seller understands that neither the Notes, nor any interest therein,
nor the Unison Common Stock may be sold, transferred or otherwise disposed of
without registration under the 1933 Act or an exemption therefrom, and that in
the absence of an effective registration statement covering the Unison Common
Stock, or an available exemption from registration under the 1933 Act, the
Unison Common Stock must be held indefinitely. In particular, such Seller is
aware that no interest in the Notes, or Unison Common Stock may be sold pursuant
to Rule 144 promulgated under the Securities Act unless all of the conditions of
that Rule are met. Such Seller further understands that the Notes and the
certificates representing the Unison Common Stock will bear the a legend
substantially in the following form and agrees that he will hold such Notes and
such shares subject thereto:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND ANY SHARES THAT MAY
BE ISSUED UPON THE CONVERSION OF SUCH SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR
INTEREST HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE AND THE COMPANY SHALL HAVE RECEIVED, AT THE
EXPENSE OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY
SATISFACTORY TO THE COMPANY (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY).
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November 24, 1996
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c. (i) Such Seller has such knowledge and experience in financial and
business matters that he is capable of evaluating independently the risks and
merits of purchasing Unison's Notes and Common Stock; (ii) Such Seller has
independently evaluated the risks and merits of purchasing Unison's Notes and
Common Stock and has independently determined that Unison's Notes and Common
Stock are suitable investments for such Seller; and (iii) such Seller has
sufficient financial resources to bear the loss of his entire investment in
Unison's Notes and Common Stock.
d. Such Seller further represents that he has had an opportunity to ask
questions and receive answers from the officers and directors of Unison
regarding the business, properties, prospects and financial condition of Unison
and to obtain additional information (to the extent Unison possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to such Seller or
to which such Seller had access.
5. Publicity. Sellers each agree that they will not make public
statements regarding the Transaction contemplated by this Agreement without
first consulting Unison in order that such public statement shall be jointly
issued by the parties.
6. Counterparts. This Agreement may be executed by facsimile or manual
signatures. It may be executed in several counterparts, each of which shall be
deemed an original, but such counterparts shall together constitute one
agreement.
UNISON HEALTHCARE CORPORATION
By: /S/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
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Unison -- Plash/Xxxxxxxxx
November 24, 1996
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ACCEPTED AND AGREED TO
The foregoing correctly sets forth our mutual agreement.
SELLERS
/S/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
/S/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
