EXHIBIT 10.94
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of August 13, 1996 by and
among Xxxx Xxxxxx Holdings Pty. Limited, an Australian corporation (the
"Acquiror"), Ramsay Health Care, Inc., a Delaware corporation (the "Seller"),
and, solely for the purposes of Sections I, III and IV hereof, Ramsay Health
Care Pty. Limited, an Australian corporation (the "Manager").
W I T N E S S E T H:
WHEREAS, the Manager is an affiliate of the Acquiror and a
party to that certain Amended and Restated Management Agreement dated as of June
25, 1992 with the Seller (the "Management Agreement") pursuant to which the
Seller, among other matters, is obligated to pay certain management fees
("Management Fees") and other amounts to the Manager;
WHEREAS, an agreement of the Seller with certain of its
lenders restricts or may restrict the payment in cash of the amounts now and
hereafter due pursuant to the Management Agreement; and
WHEREAS, the Seller, the Acquiror and the Manager desire to
provide for the issuance of 275,546 shares of common stock, $.01 par value (the
"Common Stock"), of the Seller (the "Shares") for a purchase price of
$757,752.00, payable $2,755.46 in cash and as a prepayment by the Seller of
$754,996.54 in Management Fees;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
SECTION I
PURCHASE AND SALE OF THE SHARES
A. Purchase and Sale of the Shares. Subject to the terms and
conditions of this Agreement and on the basis of the representations,
warranties, covenants and agreements herein contained, the Manager hereby
directs the Seller to, the Seller does hereby, issue and convey to the Acquiror
on the date hereof, and the Acquiror hereby acquires and accepts from the Seller
on the date hereof, the Shares.
B. Consideration for the Shares. The Shares are being issued
for a purchase price of $757,752.00 payable
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$2,755.46 in cash and as a prepayment by the Seller of $754,996.54 of amounts
now and hereafter due during the Seller's current fiscal year pursuant to the
Management Agreement, representing a purchase price of $2.75 per share of Common
Stock. The Manager hereby accepts the issuance by the Seller to the Acquiror of
the Shares as a prepayment of $754,996.54 of the amounts now or hereafter due
during the Seller's current fiscal year pursuant to the Management Agreement.
The Seller hereby acknowledges receipt of $2,755.46 in cash from the Manager in
payment of the cash portion of the purchase price for the Shares.
C. Delivery of the Shares. The Acquiror hereby acknowledges
receipt of a certificate of the Seller representing the Shares.
SECTION II
REPRESENTATIONS AND WARRANTIES
OF THE SELLER
The Seller hereby represents and warrants to the Acquiror and
the Manager, as of the date hereof, that:
A. Organization; Good Standing. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has full corporate power and authority to own
its properties and to conduct the businesses in which it is now engaged.
B. Authority. The Seller has full corporate power and
authority to execute and deliver this Agreement and to perform all of its
obligations hereunder, and no consent or approval of any other person or
governmental authority is required therefor. The execution and delivery of this
Agreement by the Seller, the performance by the Seller of its covenants and
agreements hereunder and the consummation by the Seller of the transactions
contemplated hereby have been duly authorized by all necessary corporate action.
This Agreement constitutes a valid and legally binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application relating to or affecting the enforcement of creditors'
rights or by general principles of equity.
C. No Legal Bar; Conflicts. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated hereby,
violates any provision of the Certificate of Incorporation or By-Laws of the
Seller or any law, statute, ordinance, regulation, order, judgment or decree of
any
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court or governmental agency, or conflicts with or results in any breach of any
of the terms of or constitutes a default under or results in the termination of
or the creation of any lien pursuant to the terms of any contract or agreement
to which the Seller is a party or by which the Seller or any of its assets is
bound.
D. Authorization of Shares. The Shares being purchased by the
Acquiror hereunder have been duly and validly authorized and, upon delivery of
the certificate representing ownership by the Acquiror of the Shares as herein
provided, for the consideration herein provided, such Shares will be duly and
validly issued, fully paid and nonassessable.
SECTION III
REPRESENTATIONS AND WARRANTIES
OF THE ACQUIROR AND THE MANAGER
Each of the Acquiror and the Manager, jointly and severally,
hereby represents and warrants to the Seller, as of the date hereof, that:
A. Authority. It has full corporate power and authority to
execute and deliver this Agreement and to perform all of its obligations
hereunder, and no consent or approval of any other person or governmental
authority is required therefor. The execution and delivery of this Agreement by
it, the performance by it of its covenants and agreements hereunder and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action. This Agreement constitutes a valid
and legally binding obligation of it, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws of general application relating to or affecting
the enforcement of creditors' rights or by general principles of equity.
B. No Legal Bar; Conflicts. Neither the execution
and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, violates any law, statute,
ordinance, regulation, order, judgment or decree of any court or
governmental agency, or conflicts with or results in any breach
of any of the terms of or constitutes a default under or results
in the termination of or the creation of any lien pursuant to the
terms of any contract or agreement to which it is a party or by
which it or any of its assets is bound.
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C. Investment in the Seller.
(i) It understands that the Seller proposes to issue
and deliver to the Acquiror the Shares pursuant to this Agreement without
compliance with the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"); that for such purpose the Seller will rely upon
its representations and warranties contained herein; and that such
non-compliance with registration is not permissible unless such representations
and warranties are correct.
(ii) It understands that, under existing rules of the
Securities and Exchange Commission (the "SEC"), the Acquiror may be unable to
sell the Shares except to the extent that the Shares may be sold (i) pursuant to
an effective registration statement covering such sale pursuant to the
Securities Act and applicable state securities laws or an applicable exemption
therefrom or (ii) in a bona fide private placement to a purchaser who shall be
subject to the same restrictions on any resale or (iii) subject to the
restrictions contained in Rule 144 under the Securities Act ("Rule 144").
(iii) It is not relying on the Seller respecting the
financial, tax and other economic considerations of an investment in the Common
Stock, and it has relied on the advice of, or has consulted with, only its own
advisors.
(iv) It is familiar with the provisions of Rule 144
and the limitations upon the availability and applicability of such rule.
(v) It is a sophisticated investor familiar with the
type of risks inherent in the acquisition of restricted securities such as the
Shares and its financial position is such that it can afford to retain the
Shares for an indefinite period of time without realizing any direct or indirect
cash return on its investment.
(vi) It has such knowledge and experience in
financial, tax and business matters so as to enable it to utilize the
information made available to it in connection with the issuance of the Shares
to the Acquiror and to evaluate the merits and risks of an investment in the
Shares and to make an informed investment decision with respect thereto.
(vii) The Acquiror is purchasing the Shares as an
investment for its sole account, and without any present view towards the resale
or other distribution thereof.
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D. Legend. Each certificate representing Shares shall contain
upon its face or upon the reverse side thereof a legend to the following effect:
"These securities have not been registered under the
Securities Act of 1933, as amended, or qualified under state
securities laws and may not be sold, pledged, or otherwise
transferred unless (a) covered by an effective registration
statement under the Securities Act of 1933, as amended, and
qualified under applicable state securities laws, or (b) the
Corporation has been furnished with an opinion of counsel
acceptable to the Corporation to the effect that no
registration or qualification is legally required for such
transfer."
SECTION IV
MISCELLANEOUS
A. Notices. All notices, requests or instructions hereunder
shall be in writing and delivered personally, by telecopy or sent by registered
or certified mail, postage prepaid, as follows:
(1) if to the Acquiror or the Manager:
000 Xxxxxxx Xxxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
Telecopy: (000) 00-0-000-0000
(2) if to the Seller:
One Poydras Plaza
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or delivered by telecopy, and five days after the date of
mailing, if mailed.
B. Survival of Representations. Each representation, warranty,
covenant and agreement of the parties hereto herein
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contained shall survive the execution of this Agreement, notwithstanding any
investigation at any time made by or on behalf of any party hereto.
C. Entire Agreement. This Agreement and the documents referred
to herein contain the entire agreement between the parties hereto with respect
to the transactions contemplated hereby, and amends and restates the Original
Agreement in its entirety. No modification hereof shall be effective unless in
writing and signed by the party against which it is sought to be enforced.
D. Assignment. This Agreement shall not be assignable by the
Seller or the Acquiror except pursuant to a writing executed by each of the
parties hereto; provided that the Acquiror may assign any of its rights
hereunder to any affiliate of the Acquiror which agrees to be bound by all of
the obligations of the Acquiror hereunder or to any lender in connection with
any financing transaction entered into by the Acquiror or any of its affiliates
and that the Manager hereby assigns its rights to acquire the Shares to the
Acquiror.
E. Invalidity, Etc. If any provision of this Agreement, or the
application of any such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby.
F. Expenses. Except as expressly set forth herein, each of the
parties hereto shall bear such party's own expenses in connection with this
Agreement and the transactions contemplated hereby.
G. Headings. The headings of this Agreement are for
convenience of reference only and are not part of the substance of this
Agreement.
H. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
I. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable in the
case of agreements made and to be performed entirely within such State.
J. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
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K. Third Party Beneficiary. This Agreement shall not create
any rights in favor of any person not a party hereto.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first above written.
XXXX XXXXXX HOLDINGS PTY. LIMITED
By_________________________________
Name:
Title:
RAMSAY HEALTH CARE, INC.
By_________________________________
Name:
Title:
Solely for the purposes of Sections I, III and IV:
RAMSAY HEALTH CARE PTY. LIMITED
By_________________________________
Name:
Title:
