Exhibit 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made on January 22, 2002 by and
between Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxx (the "Buyers") and Jericho Capital
Corp. SEP f/b/o Xxxxxxx X. Xxxxxx (the "Seller").
The Seller owns 168,100 shares of Common Stock, par value $.001 per
share ("Common Stock") of Star Multi Care Services, Inc. (the "Company").
Buyer desires to purchase from the Seller, and the Seller desires to
sell to Buyer, all of the shares of Common Stock of the Company owned by it all
upon the terms and conditions set forth below.
Now, therefore, in consideration of, and in reliance upon, the
covenants, representations and warranties contained in this Agreement, the
parties agree as follows:
1. Purchase and Sale of Stock. Upon the terms and provisions of this
Agreement, Buyer agrees to purchase and accept delivery from the Seller and the
Seller agrees to sell, assign, transfer and deliver to Buyer, at the Closing
provided for in Section 3, the Common Stock, free and clear of all liens,
claims, charges, restrictions, equities or encumbrances of any kind.
2. Consideration. The purchase price (the "Purchase Price") to be paid
by Buyer for the shares of Common Stock to be purchased by it pursuant hereto
shall be Thirty-five Thousand Dollars ($35,000). The Purchase Price shall be
paid in the form of a certified check or bank check.
3. Closing. The Closing of the purchase and sale of the Common Stock
(the "Closing") shall take place at the office of the Company, 00 Xxxx Xxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxxx, XX 00000 (or at such other place as the
parties may mutually agree) contemporaneously with the execution of this
Agreement, or on such other date upon which the parties shall mutually agree.
The date of the Closing is referred to as the Closing Date.
3.1. Documents to Be Delivered by the Seller. At the Closing, the
Seller will:
(A) deliver to Buyer stock certificates for the shares of Common Stock
to be sold by the Seller, free and clear of all liens, claims, charges,
restrictions, equities or encumbrances of any kind, and with any necessary stock
transfer stamps, along with duly executed stock powers in form satisfactory to
Buyer bearing a medallion signature guarantee stamp from a commercial bank or
broker/dealer; and
(B) Executed copy of this Stock Purchase Agreement, and
3.2. Documents To Be Delivered by Buyer to the Seller. At the Closing,
Buyer will deliver to the Seller:
(A) The Purchase Price in the form of a certified check or bank check,
and
(B) Executed copy of this Stock Purchase Agreement, and
4. Representations and Warranties by The Seller. The Seller represents
and warrants to Buyer as follows:
4.1. Stock Ownership. The Seller owns all of the shares of Common
Stock, which constitute all of the outstanding shares of capital stock of the
Company owned by the Seller, free and clear of all liens, claims, charges,
restrictions, equities and encumbrances of any kind. The Seller has full power
and the legal right to sell, assign, transfer and deliver to Buyer the stock
described in this paragraph.
4.2. Authorization of Agreement; No Violation. The Seller has all
necessary power and authority to execute, deliver and perform this Agreement and
to consummate the sale of the shares of Common Stock owned by the Seller and the
other transactions contemplated by this Agreement. This Agreement has been duly
executed by or on behalf of the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms...
Neither the execution, delivery or performance of this Agreement nor
the consummation of any of the transactions provided for in this Agreement (i)
will result in any breach of or default under any provision of any contract or
agreement of any kind to which the Seller is a party or by which the Seller is
bound or to which any property or asset of the Seller is subject; (ii) is
prohibited by or, except for the filing with the Securities and Exchange
Commission (the "SEC") of a Form 4 and/or an amendment to the Seller's Schedule
13D, requires the Seller to obtain or make any consent, authorization, approval,
registration or filing under any statute, law, ordinance, regulation, rule,
judgment, decree or order of any court or governmental agency, board, bureau,
body, department or authority, or of any other person.
4.3. Litigation. There are no actions, suits, proceedings or
investigations, either at law or in equity, or before any commission or other
administrative authority in any United States or foreign jurisdiction, of any
kind now pending or, to the best of the Seller's knowledge, threatened against
the Seller that (i) question the validity of this Agreement or (ii) seek to
delay, prohibit or restrict in any manner any action taken or to be taken by the
Seller under this Agreement.
4.4. Brokers. All negotiations relative to this Agreement and the
transactions contemplated by it have been carried on by the Seller directly with
Buyer and without the intervention of any other person and in a manner as not to
give rise to any valid claim against any of the parties for any finder's fee,
brokerage commission or like payment.
4.5. No Untrue Statements. No statement by the Seller contained in this
Agreement and no written statement contained in any certificate, schedule or
other document required to be furnished by the Seller to Buyer pursuant to this
Agreement contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary in order to make the
statements not misleading.
4.6. Acknowledgments by Seller. The Seller acknowledges that it has
been afforded the opportunity to ask questions of the Buyer and/or the Company.
Without limiting the generality of the foregoing, the Seller has also had the
opportunity to obtain and to review the Company's (1) Annual Report on Form 10-K
for the fiscal year ended May 31, 2002 and any amendments thereof, (2) Quarterly
Reports on Form 10-Q for the fiscal quarters ended August 31, 2002 and November
30, 2002, (3) Current Report on Form 8-K dated October 31, 2002 and (4) the
Company's press releases that have been released from time to time prior to the
date hereof (and which are available on the Internet site
"xxxx://xxx.xxxxx.xxx/x/x/xxxx.xx.xxxx") (collectively, the "Company's Public
Documents").
The Seller further acknowledges that the Seller has had the benefit of
financial and legal advisors with respect to this Agreement and that the Seller
is not relying on Buyer or any person on behalf of or retained by Buyer for any
disclosure of information with respect to the Company and its subsidiaries.
Nothing in this Section 4.6 shall be a defense to or mitigation of any breach by
Buyer of its representations and warranties contained in Section 5 of this
Agreement.
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5. Representations and Warranties by the Buyer. The Buyer severally
represents and warrants to Buyer as follows:
5.1. Authorization of Agreement; No Violation. The Buyer has all
necessary power and authority to execute, deliver and perform this Agreement and
to consummate the purchase of the shares of Common Stock owned by the Seller and
the other transactions contemplated by this Agreement. This Agreement has been
duly executed by or on behalf of the Buyer and constitutes the legal, valid and
binding obligation of the Buyer, enforceable against the Buyer in accordance
with its terms.
Neither the execution, delivery or performance of this Agreement nor
the consummation of any of the transactions provided for in this Agreement (i)
will result in any breach of or default under any provision of any contract or
agreement of any kind to which the Buyer is a party or by which the Buyer is
bound or to which any property or asset of the Buyer is subject; (ii) is
prohibited by or, except for the filing with the SEC of a Form 4 and/or an
amendment to the Buyer's Schedule 13D, requires the Buyer to obtain or make any
consent, authorization, approval, registration or filing under any statute, law,
ordinance, regulation, rule, judgment, decree or order of any court or
governmental agency, board, bureau, body, department or authority, or of any
other person; (iii) will cause any acceleration of maturity of any note,
instrument or other obligation to which the Buyer is a party or by which the
Buyer is bound or with respect to which the Buyer is an obligor or guarantor; or
(iv) will result in the creation or imposition of any lien, claim, charge,
restriction, equity or encumbrance of any kind whatever upon or give to any
other person any interest or right (including any right of termination or
cancellation) in or with respect to any of the properties, assets, business,
agreements or contracts of the Buyer.
5.3. Litigation. There are no actions, suits, proceedings or
investigations, either at law or in equity, or before any commission or other
administrative authority in any United States or foreign jurisdiction, of any
kind now pending or, to the best of the Buyer's knowledge, threatened against
the Buyer that (i) question the validity of this Agreement, (ii) seek to delay,
prohibit or restrict in any manner any action taken or to be taken by the Buyer
under this Agreement or (iii) if adversely determined would have a material
adverse effect upon Buyer's financial condition or earnings.
5.5. Brokers. All negotiations relative to this Agreement and the
transactions contemplated by it have been carried on by the Buyer directly with
the Seller and without the intervention of any other person and in a manner as
not to give rise to any valid claim against any of the parties for any finder's
fee, brokerage commission or like payment.
5.5. No Untrue Statements. No statement by the Buyer contained in this
Agreement and no written statement contained in any certificate, schedule or
other document required to be furnished by the Buyer to Buyer pursuant to this
Agreement contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary in order to make the
statements not misleading.
6. Survival of Representations and Warranties; Indemnification.
6.1. Survival of Representations and Warranties. All representations
and warranties contained in this Agreement, any Schedule or Attachment and any
certificate delivered at the Closing of any of the Seller or Buyer shall be
deemed to have been relied upon in spite of any investigation that has been or
will be made or omitted by any party to this Agreement and shall survive the
Closing to the extent provided in this Section 6.
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6.2. Seller's Indemnification Obligations. Subject to the terms and
conditions of this Section 6, the Seller agrees to indemnify and hold Buyer
harmless against and in respect of any and all losses, liabilities, damages and
expenses (including reasonable legal fees and expenses) relating to or arising
out of (A) any material misrepresentation or breach of warranty of the Seller
contained in Section 4 of this Agreement or in any statement or certificate
delivered by the Seller; and (B) any material breach of any covenant of the
Seller contained in this Agreement.
6.3. Buyer's Indemnification Obligations. Subject to the terms and
conditions of this Section 6, Buyer agrees to indemnify and hold the Seller
harmless against and in respect of (A) any and all losses, liabilities, damages
or expenses (including legal fees and expenses) relating to or arising out of
any material misrepresentation or breach of warranty of Buyer contained in
Section 5 of this Agreement or in any statement or certificate delivered by
Buyer; (B) any material breach of any covenant of Buyer contained in this
Agreement; and (C) the purchase by Buyer from Seller of the shares of Common
Stock set forth on the attached Schedule A (it being understood that in no event
shall Buyer indemnify the Seller for any losses suffered or taxes payable in
respect of profits realized upon the sale by the Seller of the Common Stock
pursuant to this Agreement).
6.4. Procedure for Indemnification Claims. The respective
indemnification obligations of the Seller and Buyer pursuant to Sections 6.2 and
6.3 shall be conditioned upon compliance by the Seller and Buyer with the
following procedures for indemnification claims based upon or arising out of any
claim, action or proceeding by any person not a party to this Agreement:
(A) If at any time a claim shall be made, or an action or proceeding
shall be commenced, against a party to this Agreement (the "Aggrieved Party")
which could result in liability of the other party (the "Indemnifying Party")
under its indemnification obligations under this Agreement, the Aggrieved Party
shall give to the Indemnifying Party notice of that claim, action or proceeding
within as soon as reasonably practical after the Aggrieved Party has received
notice or the claim (except that failure to give timely notice shall not excuse
the Indemnifying Party except to the extent that it is materially prejudiced by
that failure). The notice shall state the basis for the claim, action or
proceeding and the amount claimed, (to the extent that amount is determinable at
the time when the notice is given) and shall permit the Indemnifying Party to
assume the defense of any such claim, action or proceeding (including any action
or proceeding resulting from any such claim) with counsel which is reasonably
acceptable to the Aggrieved Party. Failure by the Indemnifying Party to notify
the Aggrieved Party of his, her or its election to defend the claim, action or
proceeding within a reasonable time, but in no event more than 15 days after the
notice shall have been given to the Indemnifying Party, shall be deemed a waiver
by the Indemnifying Party of his, her, or its right to defend the claim, action
or proceeding if and to the extent that the Aggrieved Party was materially
prejudiced by the delay; provided, however, that the Indemnifying Party shall
not be deemed to have waived the right to contest and defend against any claim
of the Aggrieved Party for indemnification under this Agreement based upon or
arising out of that claim, action or proceeding.
(B) If the Indemnifying Party assumes the defense of any such claim,
action or proceeding, the obligation of the Indemnifying Party as to that claim,
action or proceeding shall be limited to taking all steps reasonably necessary
in the defense or settlement of it and, provided the Indemnifying Party is held
to be liable for indemnification under this Agreement, paying all losses,
damages and liabilities caused by or arising out of any settlement approved by
the Indemnifying Party or any judgment or award rendered in connection with that
claim, action or proceeding. The Aggrieved Party may participate, at his, her,
or its expense, in the defense of that claim, action or proceeding provided that
the Indemnifying Party shall direct and control the defense of that claim,
action or proceeding. The Aggrieved Party agrees to cooperate and make available
to the Indemnifying Party all books and records and such officers, employees and
agents as are reasonably necessary and useful in connection with the defense.
The Indemnifying Party shall not, in the defense of the claim, action or
proceeding, enter into any settlement without the prior written consent of the
Aggrieved Party, which consent shall not be unreasonably withheld. If the
Aggrieved Party and the Indemnifying Party are both defendants in any action and
either (i) the Indemnifying Party agrees, or (ii) in the opinion of counsel for
the Aggrieved Party, representation of both the Indemnifying Party and the
Aggrieved Party by the same counsel is inappropriate under applicable standards
of professional conduct because of actual or potential conflicting interests
between them, then the Aggrieved Party shall have the right to select separate
counsel, at the cost and expense of the Indemnified Party, to assume such legal
defense and to otherwise participate in the defense of such action.
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(C) If the Indemnifying Party does not assume or proceed with the
defense of any such claim, action or proceeding, the Aggrieved Party may, at the
risk, cost and expense of the Indemnifying Party, defend against the claim,
action or proceeding in a manner as he, she, or it may deem appropriate. The
Indemnifying Party agrees to cooperate and make available to the Aggrieved Party
all books and records and such officers, employees and agents as are reasonably
necessary and useful in connection with the defense. The Aggrieved Party shall
not, in the defense of any such claim, action or proceeding, enter into any
settlement without the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld.
7. Standstill. The Seller and Xxxxxxx X. Xxxxxx ("Xxxxxx") agree that
from the date hereof commencing on the Closing Date to the end of time, it, or
any Affiliate of the Seller and/or Xxxxxx will not:
(A) be or become the beneficial owner (as determined pursuant to
Section 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of any shares of the Common Stock of the Company which are
purchased for any reason;
(B) without the prior approval of the Board of Directors of the
Company, solicit or encourage any person to propose a business combination or
similar transaction with, or a change of control of, the Company or to make a
tender offer for shares of the Common Stock of the Company;
(C) publicly (or in a manner requiring the Company to disclose
publicly) (i) propose any business combination or similar transaction with, or a
change of control of, the Company; (ii) make or propose a tender offer for
shares of the Common Stock of the Company; (iii) otherwise act to seek control
of or influence the Board of Directors of the Company or the management,
policies or affairs of the Company; or (iv) propose any amendment to or waiver
under this Agreement;
(D) directly or indirectly solicit proxies or encourage any other
person to solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A promulgated under the Exchange Act) in
opposition to the recommendation of the Board of Directors of the Company with
respect to the election of directors of the Company or any other matter; or
(E) directly or indirectly join or encourage the formation of a
partnership, limited partnership, syndicate or other group (within the meaning
of Section 13(d) (3) of the Exchange Act), or otherwise act in concert with any
other person, for the purpose of affecting control of the Company or acquiring,
holding, voting or disposing of shares of the Common Stock of the Company.
Without limiting the right of Buyer to pursue all other legal and
equitable rights available to it for violation of this Section by the Seller,
the Seller acknowledges that Buyer shall be entitled to injunctive relief to
prevent any violation or continuing violation of this Section because other
remedies cannot fully compensate Buyer for such violations. If in any action
before any court or agency legally empowered to enforce this Section any term,
restriction or covenant is found to be unreasonable or for any reason
unenforceable, then that term, restriction or covenant shall be deemed modified
to the extent necessary to make it enforceable. The Seller acknowledges that the
provisions of this Section are reasonable and necessary for the protection of
Buyer.
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For the purposes of this Agreement, the term "Affiliate" shall have the
meaning set forth in Rule 12b-2 of the Exchange Act.
8. Miscellaneous.
8.1. Assurance of Further Action. From time to time after the Closing
and without further consideration, each of the parties to this Agreement shall
execute and deliver, or cause to be executed and delivered, such further
instruments and agreements, and shall take such other actions, as any other
party may reasonably request in order to more effectively effectuate the
transactions contemplated by this Agreement.
8.2. Expenses. Seller and Buyer each agree to shall each bear there own
expenses including without limitation fees, disbursements, and other costs of
any, attorneys, accountants and other advisors in connection with this Stock
Purchase Agreement and related documents.
8.3. [Intentionally omitted]
8.4 Waiver. The parties to this Agreement may by written agreement (i)
extend the time for or waive or modify the performance of any of the obligations
or other acts of the parties to this Agreement or (ii) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement.
8.4. Notices. All notices, requests or other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered by hand or sent by overnight courier which provides evidence of
delivery or by first class certified mail, postage prepaid, addressed as
follows: if to Buyer, to Xxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxx, c/o Star Multi
Care Services, Inc., 33 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxxx, XX
00000, (with a copy to Xxxxxxxx X. Xxxxx, Esquire, Meritz & Xxxxx LLP, 0 Xxxxxx
Xxxxx, Xxxxxxxxxx Xxxxxxx, XX 11746); if to Seller, at 000 Xxxx Xxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxx 00000 (with a copy to Xxxxx X. Xxxxxxxx P.C., Esanu Katsky
Xxxxxx & Siger, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 10158) or to such other
address as may have been furnished by notice in the matter provided in this
Section 8.4.
8.5. Entire Agreement. This Agreement embodies the entire agreement
among the parties and there has been and are no agreements, representations or
warranties, oral or written, among the parties other than those set forth or
provided for in this Agreement. This Agreement may not be modified or changed,
in whole or in part, except by a supplemental agreement signed by each of the
parties.
8.6. Rights Under This Agreement; Non-assignability. This Agreement
shall bind and inure to the benefit of the parties to this Agreement and their
respective heirs, legal representatives, successors and permitted assigns, but
shall not be assignable by any party without the prior written consent of the
other parties. Nothing contained in this Agreement is intended to confer upon
any person, other than the parties to this Agreement and their respective heirs,
legal representatives, successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
8.7. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to the
conflicts of laws principles of that State.
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8.8. Headings; References to Sections, Attachments and Schedules. The
headings of the Sections, paragraphs and subparagraphs of this Agreement are
solely for convenience of reference and shall not limit or otherwise affect the
meaning of any of the terms or provisions of this Agreement. The references in
this Agreement to Sections and Schedules, unless otherwise indicated, are
references to sections of and schedules to this Agreement.
8.9. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but which together constitute one and the same
instrument.
9. Seller's Release.
9.1 Effective as of the date hereof, Jericho Capital Corp., Jericho
Capital Corp. f/b/o SEP Xxxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxxxx, individually,
for itself or himself, (collectively the "Seller Releasors"), do hereby release,
acquit, and forever discharge Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx and Star Multi
Care Services, Inc. and any parent, subsidiary or affiliate corporation,
partnership, limited liability company, proprietorship, trust, any Affiliate or
other form of business entity related directly or indirectly to the foregoing,
and each of their respective heirs, administrators, executors, beneficiaries,
legatees, devisees, trusts, trustees, insurers, attorneys, experts, consultants,
partners, joint venturers, members, officers, directors, shareholders,
employees, contractors, alter egos, agents, representatives, predecessors,
successors and assigns (collectively the "Buyer Releasees") of and from any and
all claims, actions, causes of action, judgments, awards, costs, expenses,
attorneys' fees, debts, obligations, promises, representations, warranties,
demands, acts, omissions, rights and liabilities, of any kind and nature
whatsoever, including but not limited to those at law, in equity, in tort, in
contract, whether or not asserted to date, and whether known or unknown,
suspected or unsuspected, which have arisen, are arising, or may in the future
arise, directly or indirectly, from, or any other matter or transaction of any
kind or nature undertaken thereunder from the beginning of time until the date
hereof (the matters referred to above being hereinafter referred to as the
"Buyer Released Claims"); provided, however, that nothing in this Release shall
release Buyer Releasees from any of its obligations under this Stock Purchase
Agreement.
9.2. Covenant Not to Xxx by Seller. Except for the enforcement of this
Stock Purchase Agreement, the Seller Releasors hereby covenant that they will
not, based on any Buyer Released Claims, xxx or bring any claim or action
against any Buyer Releasees. This Covenant Not to Xxx shall be a complete
defense to any such claim or suit by any such Seller Releasor.
10. Buyer's Release.
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10.1 Effective as of the date hereof, Xxxxxxx Xxxxxxxxx and Xxxxxxx
Xxxxx, individually and Star Multi Care Services, Inc., for itself or himself,
(collectively the "Buyer Releasors"), does hereby release, acquit, and forever
discharge Jericho Capital Corp., Jericho Capital Corp. f/b/o SEP Xxxxxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxx, individually and any parent, subsidiary or
affiliate corporation, partnership, limited liability company, proprietorship,
trust, any Affiliate or other form of business entity related directly or
indirectly to the foregoing, and each of their respective heirs, administrators,
executors, beneficiaries, legatees, devisees, trusts, trustees, insurers,
attorneys, experts, consultants, partners, joint venturers, members, officers,
directors, shareholders, employees, contractors, alter egos, agents,
representatives, predecessors, successors and assigns (collectively the "Seller
Releasees") of and from any and all claims, actions, causes of action,
judgments, awards, costs, expenses, attorneys' fees, debts, obligations,
promises, representations, warranties, demands, acts, omissions, rights and
liabilities, of any kind and nature whatsoever, including but not limited to
those at law, in equity, in tort, in contract, whether or not asserted to date,
and whether known or unknown, suspected or unsuspected, which have arisen, are
arising, or may in the future arise, directly or indirectly, from, or any other
matter or transaction of any kind or nature undertaken thereunder from the
beginning of time until the date hereof (the matters referred to above being
hereinafter referred to as the "Seller Released Claims"); provided, however,
that nothing in this Release shall release Buyer Releasees from any of its
obligations under this Stock Purchase Agreement.
10.2. Covenant Not to Xxx by Buyer. Except for the enforcement of this
Stock Purchase Agreement, the Buyer Releasors hereby covenant that they will
not, based on any Seller Released Claims, xxx or bring any claim or action
against any Seller Releasees. This Covenant Not to Xxx shall be a complete
defense to any such claim or suit by any such Buyer Releasor.
11. Survival upon Termination. The provisions set forth in Sections 4,
6, 7, 8, 9, 10, 11 and as provided in Section 6.1 will survive the expiration or
termination of this Agreement.
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly signed as of the date first above written.
Jericho Capital Corp. SEP f/b/o Xxxxxxx X. Xxxxxx Xxxxxxx Xxxxxxxxx
By:____________________________ By:__________________
Name:__________________________
Title:_________________________
Date:__________________________ Date:________________
Xxxxxxx X. Xxxxxx [Limited to Sections 7 and 9] Star Multi Care Services, Inc.
[Limited to Sections 10]
By:____________________________ By:___________________________
Name:_________________________
Title:________________________
Date:__________________________ Date:_________________________
Xxxxxxx Xxxxx
By:__________________________________
Date:_________________________________
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