18
STOCK PURCHASE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is made
as of May 2, 1997, by and between Chase Manhattan Bank, Xxxx X.
Xxxxx & Xxxxxx Xxxxxxxxx Trustees U/A DTD 5/30/84 As Amended made
by and for Xxxx X. Xxxxx (the "Buyer") and Xxxxxxx X. Xxxxxxx, an
individual residing in Virginia (the "Seller"). The Buyer and
the Seller are referred to collectively herein as the "Parties."
WHEREAS, the Buyer intends to purchase from the Seller, and
the Seller intends to sell to the Buyer, 300,000 shares (the
"Shares") of PHP Healthcare Corporation's (the "Company") Common
Stock, $.01 par value, on the terms and subject to the conditions
herein provided;
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements herein
made, and upon the terms and subject to the conditions herein
contained, the Parties agree as follows:
SECTION 1
Purchase and Sale of Shares
1.1 Transaction. On and subject to the terms and conditions
of this Agreement, the Buyer agrees to purchase from the Seller,
and the Seller agrees to sell to the Buyer, the Shares for the
consideration specified below in this Section 1.2.
1.2 Purchase Price. The Buyer agrees to pay to the Seller,
by wire transfer of same day funds, at the Closing (as defined in
Section 2) $13.00 per share, for a total payment of $3,900,000.00
(the "Purchase Price"), to the account, or accounts, designated
by the Seller in writing prior to the Closing (as defined
herein).
1.3 Taxes. The Buyer shall bear the cost of any
documentary, stamp, sales, excise, transfer or other taxes
payable (other than income taxes payable by the Seller) in
respect of the sale of Shares.
19
SECTION 2
Closing Dates; Delivery
2.1 Closing Dates. The closing of the transactions
contemplated by this Agreement shall be held at the offices of
Xxxxxx, Flyer & Xxxxx, 1615 L Street, N.W., Washington, D. C., or
such other place as the Parties may agree, at no later than 2:00
p.m., local time, on the day which is one business day after the
day on which the last of the conditions set forth in Section 5
and 6 shall have been satisfied or waived (the "Closing") or at
such other time and place upon which the Seller and the Buyer
shall agree (the date of the Closing is hereinafter referred to
as the "Closing Date").
2.2 Delivery. At the Closing, (i) the Seller will deliver
to Buyer a certificate or certificate(s) for the Shares, and (ii)
the Buyer will deliver via wire transfer to the Seller the
Purchase Price specified in Section 1.2 above in immediately
available funds. Each of the certificates shall be duly endorsed
for transfer or accompanied by appropriate stock powers duly
executed, in either case in favor of the Buyer.
SECTION 3
Representations, Warranties and Agreements of the Seller
The Seller represents and warrants to the Buyer that the
statements contained in this Section 3 are correct and complete
as of the date of this Agreement and will be correct and complete
as of the Closing Date:
3.1 Ownership of Shares. The Seller owns the Shares free
and clear of all liens, claims or encumbrances (except for the
restrictions set forth in the Employment Agreement (the
"Employment Agreement") dated February 24, 1997 by and between
the Company and the Seller).
3.2 Legal Capacity. The Seller has full legal capacity to
execute and deliver this Agreement and to perform his obligations
hereunder (except for the restrictions set forth in the
Employment Agreement). This Agreement constitutes the valid and
legally binding obligation of the Seller, enforceable in
accordance with its terms and conditions. Except as may be
20
required by the Federal or state securities laws, the Seller need
not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
3.3 Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency or court to which the Seller is subject or (ii) except for
the Employment Agreement, violate or result in a breach or
constitute a default under the terms of any contract or agreement
to which the Seller is a party.
3.4 Brokers or Finders. The Seller has not incurred, and
will not incur, directly or indirectly, as a result of any action
taken by the Seller, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with
this Agreement.
3.5 Other Agreements. Except for the Employment Agreement,
the Seller is not a party to any agreements, contracts,
arrangements or understandings with respect to the
transferability or voting of the Shares.
SECTION 4
Representations and Warranties of the Buyer
The Buyer hereby represents and warrants to the Seller that
the Statements contained in this Section 4 are correct and
complete as of the date of this Agreement and will be correct and
complete as of the Closing Date.
4.1 Accredited Investor. The Buyer is an "accredited
investor" within the meaning of Rule 501(a)(3) of Regulation D,
under the Securities Act of 1933, as amended (the "Securities
Act").
4.2 Purchase for Investment. The Buyer is purchasing the
Shares for investment for its own account, not as a nominee or
21
agent, and not with a view to any public resale or other
distribution thereof except in compliance with applicable
securities laws. The Buyer understands that the Shares are not
registered under the Securities Act or under any state or foreign
securities laws.
4.3 Access to Information. The Buyer acknowledges that it
has reviewed all public information which it considers necessary
or advisable to enable it to make a decision concerning its
purchase of Shares.
4.4 Legal Capacity. The Buyer has full legal capacity to
execute and deliver this Agreement and to perform his obligations
hereunder. This Agreement constitutes the valid and legally
binding obligation of the Buyer, enforceable in accordance with
its terms and conditions. Except as may be required by the
Federal or state securities laws, the Buyer need not give any
notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this
Agreement.
4.5 Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency or court to which the Buyer is subject or (ii) except for
the Employment Agreement, violate or result in a breach or
constitute a default under the terms of any contract or agreement
to which the Seller is a party
4.6 Brokers or Finders. The Buyer has not, and will not,
incur, directly or indirectly, as a result of any action taken by
such Buyer, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with
this Agreement.
22
SECTION 5
Buyer's Conditions to Closing
The Buyer's obligations to purchase the Shares at the
Closing are subject to the fulfillment of the following
conditions, the waiver of which shall not be effective unless
the Buyer consents in writing thereto:
5.1 Representations and Warranties Correct. The
representations and warranties made by the Seller in Section 3
hereof shall be true and correct when made, and shall be true and
correct on the Closing Date in all material respects.
5.2 Compliance with State Securities Laws. The Seller
shall have obtained all permits and qualifications required by
any state for the offer and sale of the Shares, or shall have the
availability of exemptions therefrom.
5.3 No Prohibition. No statute, rule or regulation or
order of any court or administrative agency shall be in effect
which prohibits Buyer from consummating the transactions
contemplated hereby.
5.4 Opinion of Counsel for the Seller. The Seller shall
have received an opinion from Xxxxxx, Flyer & Xxxxx, counsel to
the Seller, dated the Closing Date, in form and substance
reasonably satisfactory to the Buyer.
5.5 Agreement with the Company. The Seller shall have
entered into a valid and binding agreement with the Company,
substantially in the form attached hereto as Exhibit 5.4,
modifying the Employment Agreement, which (i) provides for the
termination of the Put Right (as defined in the Employment
Agreement) which was exercised by the Seller on April 30, 1997
and (ii) permits the sale of the Shares to the Buyer.
5.6 No Claims. There are no claims pending or, to the
knowledge of the Seller, threatened against or involving the
Seller which individually or in the aggregate would have an
material adverse effect on the transactions contemplated hereby.
23
5.7 Registration Rights Agreement. The Buyer and the
Company shall have entered into a Registration Rights Agreement,
in the substantially the form attached hereto as Exhibit 5.6.
SECTION 6
Seller's Conditions to Closing
The Seller's obligation to sell and issue the Shares at the
Closing Date is subject to the fulfillment as of the Closing Date
of the following conditions, the waiver of which shall not be
effective unless the Seller consents in writing thereto:
6.1 Representations. The representations made by the Buyer
in Section 4 hereof shall be true and correct when made, and
shall be true and correct on the Closing Date in all material
respects, and the Seller shall have received on the Closing Date
a certificate from the Buyer stating that all such
representations and warranties are true and correct on the
Closing Date in all material respects.
6.2 Compliance with State Securities Laws. The Seller
shall have obtained all permits and qualifications required by
any state for the offer and sale of the Shares or shall have the
availability of exemptions therefrom.
6.3 No Prohibition. No statute, rule or regulation or
order of any court or administrative agency shall be in effect
which prohibits Seller from consummating the transactions
contemplated hereby.
6.4 Agreement with the Company. The Seller shall have
entered into a valid and binding agreement with the Company, in
the form attached hereto as Exhibit I, modifying the Employment
Agreement. The amendment to the Employment Agreement shall (i)
provide for the termination of the Put Right (as defined in the
Employment Agreement) which was exercised by the Seller on April
30, 1997 and (ii) permit for the sale of the Shares to the Buyer.
24
SECTION 7
Restrictions on Transferability of Securities; Compliance with
Securities Laws
7.1 General Restrictions on Transferability. The Buyer
shall not sell, assign, transfer or pledge the Shares, except
upon satisfaction of the conditions specified in this Section 7,
which conditions are intended to ensure compliance with the
provisions of the Securities Act. The Buyer will cause any
proposed purchaser, assignee, transferee, or pledgee of the
Shares held by the Buyer to agree to take and hold such
securities subject to the provisions and conditions of this
Section 7.
7.2 Restrictive Legend. Each certificate representing the
Shares shall be stamped or otherwise imprinted with a legend in
the following form (in addition to any legend required under
applicable state securities laws):
"THE COMMON STOCK EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, THE COMMON
STOCK MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER SUCH
ACT AND SUCH LAWS OR PURSUANT TO AN EXEMPTION THEREFROM."
The Buyer and any subsequent holder consent to the Company making
a notation on its records and giving instructions to any transfer
agent of the Shares in order to implement the restrictions on
transfer established in this Section 7.
SECTION 8
Termination
8.1 Termination. This Agreement may be terminated (as to
the party electing to so terminate it) at any time prior to the
Closing:
a. by the Buyer if any of the conditions specified in
Section 5 of this Agreement have not been met or waived by the
Investor pursuant to the terms of this Agreement by May 7, 1997
or at such earlier date that it becomes apparent that any such
25
condition can no longer be satisfied; or
b. by the Seller if any of the conditions specified in
Section 6 of this Agreement have not been met or waived by it
pursuant to the terms of this Agreement by May 7, 1997 or at such
earlier date that it becomes apparent that any such condition can
no longer be satisfied.
SECTION 9
Miscellaneous
9.1 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York
without regard to its rules of conflict of laws.
9.2 Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and
administrators of the Parties.
9.3 Entire Agreement; Amendment. This Agreement and the
other documents delivered pursuant hereto at the Closing
constitute the full and entire understanding and agreement
between the Parties with regard to the subjects related to
herein, and neither the Buyer nor the Seller shall be liable or
bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth
herein. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the
party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
9.4 Notices. Any notice or other communication in
connection with this Agreement shall be made in writing and
served by personal delivery (including, without limitation,
courier, Federal Express or other overnight messenger service),
or mailed by United States certified mail, postage prepaid,
return receipt requested, addressed as follows:
26
If to the Seller:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Copies to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxx, Flyer & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
If to the Buyer:
Xxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX
Copies to:
Metromedia Company
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn: General Counsel
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address
set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex,
ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the
intended recipient. Any party may change the address to which
notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
9.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be enforceable
27
against the Parties actually executing such counterparts, and all
of which together shall constitute one instrument.
9.6 Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provision hereof.
9.7 Headings. The titles and subtitles used in this
Agreement are used for convenience only and should not be
considered in construing or interpreting this Agreement.
9.8 Expenses. The Buyer and the Seller shall each bear
their own expenses with respect to this Agreement and the
transactions contemplated hereby.
9.9 Further Assurances. The Parties agree to use their
best efforts to effectuate this Agreement and the transactions
contemplated hereby.
28
IN WITNESS WHEREOF, each of the Parties hereto caused this
Agreement to be executed on its behalf as of the date first above
written.
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
CHASE MANHATTAN BANK, XXXX X. XXXXX
AND XXXXXX XXXXXXXXX, TRUSTEES U/A
DTD 5/30/84 AS AMENDED MADE BY AND
FOR XXXX X. XXXXX
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Trustee
