EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of May 10, 1997, among COMMUNITY CARE
SERVICES, INC., a New York corporation ("Buyer"), and XXXX XXXXXX ("Seller").
Preliminary Statement
WHEREAS, Seller owns Twenty Five (25) shares of the issued and outstanding
capital stock, par value $10.00 per share (the "Shares"), of METROPOLITAN
RESPIRATOR SERVICE, INC. D/B/A METROPOLITAN HOME CARE SERVICE, a New York
corporation (the "Company");
WHEREAS, Seller wishes to sell and Buyer wishes to buy the Shares;
NOW, THEREFORE, in consideration of the premises and mutual and dependent
promises set forth herein, the parties hereto agree as follows:
ARTICLE 1 CERTAIN DEFINITIONS.
The following defined terms shall have the following meanings:
1.1 "Agreement" means this Agreement, as the same may be extended,
modified, supplemented or terminated from time to time.
1.2 "Outstanding Debt" means the Company's current outstanding line of
credit from Xxxxxxx Xxxxx, bearing interest at the rate of prime plus one
percent% per annum.
1.3 "Related Agreements" means
(a) the stock powers provided for in Section 5.1, below;
(b) a Non-Competition Agreement to be executed by Seller in form
satisfactory to Buyer and Seller;
(c) an Investor's Representation Letter addressed to Buyer in form
satisfactory to Buyer and Seller;
(d) the General Releases referred to in Sections 5.1(c), 5.2(d) and
5.3(a), below and
(e) the Note (as defined in Section 2.2(b), below).
1.4 "Shares" has the meaning set forth in the Preliminary Statement of this
Agreement.
1.5 "Stockholders Agreement" means the Agreement among Xxxxxx Xxxxxx, Xxxxx
Xxxxx ("Xxxxx"), Xxxxxx Xxxxxxxx ("Xxxxxxxx") and the Company dated October 20,
1981.
ARTICLE 2 SALE AND PURCHASE OF SHARES.
Subject to the terms and conditions and on the basis of and in reliance on
the representations, warranties, obligations and agreements set forth in this
Agreement, the parties agree as follows:
2.1 Shares to be Acquired. Upon the execution of this Agreement, Seller
shall sell, assign, transfer and convey, and Buyer shall purchase and accept,
the Shares, free and clear of any liens, claims or encumbrances of any kind.
2.2 Purchase Price. The Purchase Price for the Shares shall be paid by
Buyer as follows:
(a) One Million Three Hundred Thousand Dollars ($1,300,000), payable
by certified check;
(b) One Hundred Thousand Dollars ($100,000), payable by a negotiable
promissory note to be executed and delivered by Buyer simultaneous to the
execution of this Agreement (the "Note") and
(b) Three Hundred Thousand (300,000) shares of Buyer's common stock,
par value $.01 per share (the "Purchase Shares"), it being understood that
(i) the Purchase Shares shall be "restricted securities", as such term is
defined under Rule 144 promulgated under the Securities Act of 1933, as
amended, and shall be subject to all restrictions imposed by law on
restricted securities and (ii) may not otherwise be sold, gifted, pledged,
hypothecated or otherwise transferred until October 18, 1998, or such
earlier time as the restrictions on sales or other transfers of Buyer's
common stock imposed on Xxxx X. Xxxxxxxxx, President and Chief Executive
Officer of Buyer, by Maidstone Financial, Inc. in connection with Buyer's
initial public offering expire, except that Seller may transfer Two Hundred
Thousand (200,000) Purchase Shares to Seller's spouse, Xxxxx Cae Prince,
upon written notification of same to Buyer.
2.3 Tag Along Rights. In the event Buyer conducts a secondary public
offering, Seller and Seller's spouse, shall include all of the Purchase Shares
in such offering to the same extent and in proportion to the rights that
Xxxxxxxx, Xxxxx, Xxxxxxx X. Xxxxx, the other executive officers of Buyer and
Xxxx Xxxxx (collectively, the "Executives") have to include their own
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shares of Buyer's common stock in the offering, subject to the approval of the
underwriter(s) of such offering, if any. If the underwriter(s) determine that
all of the stock which Executives, Seller and his spouse, as a group, wish to
sell in the offering cannot be sold, the amount of shares which each individual
may include in the offering shall be determined by multiplying (a) the total
number of shares owned by the Executives, Seller and his spouse, as a group,
which the underwriter(s) will allow to be included in the offering by (b) a
fraction, the numerator of which is the number of shares an individual Executive
or Seller and his spouse desired to have included in the offering and the
denominator of which is the total number of shares which the Executives, Seller
and his spouse, as a group, desired to have included in the offering. For
example, assume that the Executives, Seller and his spouse, as a group, desired
to include 500,000 shares in the offering, of which 100,000 shares were owned by
Seller. Assume further that the underwriter(s) will permit the Executives,
Seller and his spouse, as a group, to sell only 300,000 shares in the offering.
The number of shares which Seller and his spouse may sell in the offering in the
aggregate shall be 60,000, determined by multiplying 300,000 by 100,000 over
500,000. Notwithstanding anything herein to the contrary, in no event will
Seller and his spouse, collectively, sell more than Two Hundred Thousand
(200,000) Purchase Shares in any secondary offering.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER.
As an inducement to Buyer to enter into this Agreement and to consummate
the transactions contemplated hereby, Seller hereby represents and warrants to
Buyer that as of the date of this Agreement:
3.1 Representations Regarding the Shares. All of the Shares have been
validly issued and are fully paid and non-assessable. The sale of the Shares to
Buyer will not give rise to any rights of first refusal of any person or entity.
No person or entity other than Seller owns or has any interest in the Shares.
Seller owns the Shares free and clear of any encumbrances, pledges, security
interests, liens, charges, claims, equities, options and rights of first refusal
of whatever nature and has the full right and authority to transfer the Shares
to Buyer. Upon transfer of the Shares to Buyer, Buyer shall receive title to the
Shares free and clear of all encumbrances, pledges, security interests, liens,
charges, claims, equities, options and rights of first refusal of whatever
nature.
3.2 Authority and Compliance.
(a) Seller has the unencumbered right to execute and deliver this
Agreement and the Related Agreements and to perform the transactions
contemplated hereby and thereby. This Agreement and each of the Related
Agreements to which Seller is a party constitutes a legal, valid and
binding obligation of Seller enforceable against Seller in accordance with
its terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors rights generally and (ii) the
remedy of specific performance and other forms of equitable relief may be
subject
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to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(b) The execution and the delivery of this Agreement and the Related
Agreements to which Seller is a party and the consummation and performance
by Seller of the transactions contemplated hereby and thereby will not
conflict with or result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, any instrument, agreement,
mortgage, judgment, order, award, or decree to which Seller is a party or
by which Seller is bound.
3.3 Legal Proceedings, Etc. There are no claims or actions pending or,
threatened in writing against Seller before any court, governmental authority,
or arbitrator (i) involving the Shares or (ii) which question or challenge the
validity of this Agreement or any of the Related Agreements or any action taken,
or to be taken, by Seller pursuant to this Agreement or any of the Related
Agreements, or in connection with the transactions contemplated hereby or
thereby, which, if decided adversely against Seller, would have a material
adverse effect upon the ability of Seller to carry out his obligations under
this Agreement or any of the Related Agreements. Seller (with respect to his
ownership of the Shares) is not subject to or in default with respect to any
indictment, order, injunction, decree or award of any court, arbitrator or
governmental agency.
3.4 No Finder. Seller has not paid or become obligated to pay any fee or
commission to any broker, finder or intermediary for or on account of the
transactions provided for in this Agreement.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER.
As an inducement to Seller to enter into this Agreement and to consummate
the transactions contemplated hereby, Buyer hereby represents and warrants to
Seller that as of the date of this Agreement:
4.1 Representations Regarding the Purchase Shares. All of the Purchase
Shares have been validly issued and are fully paid and non-assessable. The sale
of the Purchase Shares to Seller will not give rise to any rights of first
refusal of any person or entity, except for rights, if any, granted by Seller to
third parties. Buyer has the full right and authority to issue the Purchase
Shares to Seller.
4.2 Authority and Compliance.
(a) Buyer has full corporate power and authority to execute and
deliver this Agreement and the Related Agreements to which it is a party
and to perform the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and such Related
Agreements by Buyer has been duly authorized and approved by all requisite
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corporate action on the part of the Buyer. This Agreement and each of the
Related Agreements to be executed by Buyer constitutes a legal, valid and
binding obligation of Buyer enforceable in accordance with its terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors rights generally and (ii) the remedy of specific
performance and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(b) The execution and the delivery of this Agreement and the Related
Agreements and the consummation and performance by Buyer of the
transactions contemplated thereby will not: (i) violate the Certificate of
Incorporation or By-Laws of Buyer or (ii) conflict with or result in a
breach of any of the terms, conditions or provisions of, or constitute a
default under, any instrument, agreement, mortgage, judgment, order, award,
or decree to which Buyer is a party or by which Buyer is bound.
4.3 Legal Proceedings, Etc. Buyer is not subject to or in default with
respect to any indictment, order, injunction, decree or award of any court,
arbitrator or governmental agency which would adversely affect the ability of
the Buyer to execute, deliver and carry out its obligations under this Agreement
and the Related Agreements to which it is a party. There are no claims or
actions pending, or to Buyer's knowledge, threatened in writing against Buyer
before any court, governmental authority, or arbitrator, which question or
challenge the validity of this Agreement or any of the Related Agreements or any
action taken, or to be taken, by Buyer pursuant to this Agreement or any of the
Related Agreements, or in connection with the transactions contemplated hereby
or thereby, which, if decided adversely against Buyer, would have a material
adverse effect upon the ability of Buyer to carry out its obligations under this
Agreement or any Related Agreement.
4.4 No Finder. Buyer has not paid or become obligated to pay any fee or
commission to any broker, finder or intermediary for or on account of the
transactions provided for in this Agreement.
4.5 Representations Regarding the Shares. Purchaser represents that except
as may be specifically set forth in Article 3 hereof, no representations or
warranties have been directly or indirectly made by Seller with respect to the
Shares, the financial condition or the operations of the Company, or any other
aspects or consequences of the purchase of the Shares, and that Purchaser has
not relied upon any information with respect thereto, other than as may be
expressly set forth herein. Purchaser further represents and acknowledges that
it has been separately given access to obtain any and all information,
documents, statements, records and books relating to the Shares and the Company,
and all materials and other information requested by Purchaser or by its
representatives, counsel and/or accountants have been made available and
examined.
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ARTICLE 5 DELIVERIES.
5.1 Deliveries of Seller. Simultaneous to the execution of this Agreement,
Seller shall deliver to Buyer the following:
(a) stock certificate(s) evidencing the Shares (or affidavits of lost
stock certificates in form acceptable to Buyer) and such stock powers and
other instruments as are necessary or reasonably desirable to vest in Buyer
all right, title and interest in and to the Shares;
(b) an Agreement with Xxxxxxxx, Xxxxx and Xxxxx confirming that the
Stockholders Agreement is of no force and effect and waiving any and all
rights of the parties thereto;
(c) General Releases in favor of Xxxxxxxx, Xxxxx, Xxxxx, the Company
and Buyer;
(d) Seller's resignation as a Director, Officer and employee of the
Company and
(e) all of the Related Agreements required to be delivered by Seller
to Buyer or other parties under this Agreement, each duly executed by
Seller.
5.2 Deliveries of Buyer. Simultaneous to the execution of this Agreement,
Buyer shall deliver to Seller the following:
(a) A certified check in the amount of One Million Three Hundred
Thousand Dollars ($1,300,000);
(b) The Note;
(c) a stock certificate for Three Hundred Thousand shares (300,000) of
Buyer's common stock, to be delivered by no later than May 16,1997.
(d) General Releases from the Company and Buyer in favor of Seller
(e) Each of the Related Agreements to which Buyer is a party, duly
executed and delivered by Buyer.
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5.3 Other Deliveries.
(a) As soon as possible following the execution of this Agreement,
Buyer will arrange for the delivery to Seller of General Releases from
Xxxxxxxx, Xxxxx and Xxxxx in favor of Seller.
(b) Buyer will arrange for the return to Seller, by no later than May
31, 1997, of the personal Guaranty issued by Seller guaranteeing the
Outstanding Debt. Buyer shall defend, indemnify and hold harmless Seller
from and against any and all actions, suits, claims, proceedings,
investigations, audits, demands, assessments, fines, judgments, costs and
other reasonable expenses (including reasonable legal fees) arising from
Seller's personal Guaranty of the Outstanding Debt or in causing Buyer to
comply.
5.4 Other Matters. Buyer covenants that it shall fully cooperate with
Prince in delivering the following items as soon as practicable:
(a) Certified copies of the resolutions of the Board of Directors of
Buyer authorizing the transaction contemplated hereby;
(b) an assignment of the Company's existing life insurance policy on
the life of Seller at no additional cost to Seller, it being understood
that Seller is assuming all obligations to pay premiums thereon;
(c) continued medical insurance coverage for Seller and his family
under the Company's medical insurance pursuant to the applicable provisions
of COBRA at Seller's cost and expense;
(d) check(s) made payable to Seller's XXX accounts designated by him
in order to roll over as expeditiously as practicable his entire share of
all of his Company pension accounts (including the defined benefit, 401(k)
savings and profit sharing plans.) and
(e) a check from the Company for Prince's salary due for the last pay
period ending on May 9, 1997.
ARTICLE 6 INDEMNIFICATION
6.1 Indemnification for Fraud. From and after the date hereof, Seller shall
defend, indemnify and hold harmless Buyer and the Company from and against (i)
any and all damages, losses and liabilities resulting from or relating to the
commission of fraud by Seller committed at any time during his tenure as an
officer, director and/or employee of the Company as determined by a court of
competent jurisdiction or governmental agency and (ii) any and all actions,
suits, claims, proceedings, investigations, audits, demands, assessments, fines,
judgments, costs and other reasonable expenses (including reasonable legal fees)
arising out of
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or incident to any of the foregoing. The obligations of Seller set forth in this
Section 6.1 shall expire on the third anniversary of this Agreement.
6.2 Indemnification Procedures. All claims for indemnification by Buyer
pursuant to Section 6.1 shall be made as follows: In the event a claim or demand
is made by a third party against Buyer and Buyer in good faith determines that
such claim or demand is one which would come within Section 6.1, Buyer shall
promptly notify Seller of such claim or demand, specifying the nature and the
amount (the "Claim Notice"). Buyer shall be responsible for handling the defense
of such matter. Buyer shall keep Seller informed of all material developments in
such matter and will permit the Seller (at Seller's sole cost and expense) to
participate in settlement negotiations or the defense of any matter for which
Seller is liable hereunder through counsel chosen by the Seller. Buyer agrees to
preserve and provide access to all evidence that may be useful in defending
against such claim and to provide reasonable cooperation in the defense thereof
or in the prosecution of any action against a third party in connection
therewith. Buyer's defense of any claim or demand shall not constitute an
admission or concession of liability therefor or otherwise operate in derogation
of any rights Buyer may have against Seller or any third party.
ARTICLE 7 CERTAIN COVENANTS.
7.1 Cooperation. Buyer and Seller shall cooperate with each other and
proceed, as promptly as is reasonably practicable, to prepare and file the
notifications and other filings required by applicable law in connection with
the transactions described in this Agreement, if any, to seek to obtain all
necessary consents and approvals from lenders, lessors and other third parties,
if any, and to endeavor to comply with all other legal or contractual
requirements in connection with the execution, consummation and performance of
this Agreement.
7.2 Confidentiality. Seller shall keep all financial, technical and other
information concerning the Company known to him strictly confidential and shall
not disclose any of such information to any third party, except in connection
with (i) disclosure of information which is generally known by others engaged in
activities similar to the Company or which has been publicly disseminated
through no fault of Seller, (ii) information necessary for the preparation of
Seller's tax returns and responses to any audits or inquiries of tax regulatory
authorities and (iii) disclosure of information which is compelled by operation
of law, provided that in each case, Seller will deliver written notice to Buyer
before making any such disclosure. Seller shall use reasonable efforts to ensure
that such information is not used or disclosed by any other persons or entities
except as permitted by this Agreement. Seller acknowledges the competitive value
and confidential nature of such information and the damage that would result to
Buyer and the Company if such information is disclosed to a third party or used
by Seller in violation of this Agreement. Accordingly, Seller agrees that both
injunctive relief and monetary relief, alone or in combination, are appropriate
remedies for any breach of this Section 7.2 by Seller or his advisors.
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ARTICLE 8 MISCELLANEOUS MATTERS.
8.1 Survival of Representations and Warranties. All representations and
warranties of the parties set forth in this Agreement shall survive the Closing
for a period of one year from the date hereof.
8.2 Further Assurances; Access to Records. At any time and from time to
time after the date hereof, at the request of Buyer and without further
consideration, Seller and Buyer shall execute, acknowledge and deliver all such
further documents, and shall do and perform all such further acts and deeds, as
may reasonably be requested to more effectively vest in Buyer the rights and
benefits intended to be conferred hereby and to consummate more effectively the
transactions contemplated hereby. Buyer shall make available to Seller after the
date hereof such records regarding the Company as Seller may require for the
purposes set forth in Section 7.2.
8.3 Mail. After the date hereof and for a period of one year thereafter,
Buyer shall remit to Seller all mail and other communications received by Buyer
that does not relate to the Company, and Seller shall remit to Buyer all mail
and other communications received by Seller that relates to the Company.
8.4 Changes, Waivers. This Agreement may not be changed in any manner
except by a written agreement signed by each of the parties hereto. The failure
of any party to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision, nor in any
way affect the validity of this Agreement or any part thereof or the right of
either party thereafter to enforce each and every such provision. No waiver of
any breach of this Agreement shall be held to be a waiver of any other or
subsequent breach.
8.5 Expenses, Etc. Buyer and Seller shall be responsible for and bear all
of its or their own costs and expenses (including without limitation attorneys'
fees and costs, accountants' fees and costs and other professionals' fees and
costs) incurred in connection with the negotiation, preparation, execution and
delivery of this Agreement and the Related Agreements and the consummation of
the proposed transactions described in this Agreement; provided, however, that
the fees and disbursements of Seller's counsel incurred in such counsel's
capacity as co-counsel to the Company through April 25, 1997 will be paid by
Buyer promptly after the submission of an invoice for such fees and
disbursements and review thereof by Buyer. Seller shall be responsible for the
purchase of any stock transfer stamps and payment of any assignment, recording
or filing fees triggered by or imposed upon the transactions contemplated by
this Agreement. No broker's, finder's or similar fees shall be payable in
connection with the proposed transactions described in this Agreement, and each
party to this Agreement shall indemnify the other parties hereto with respect to
any such fees.
8.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of such
counterparts together shall be deemed to be one and the same instrument.
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8.7 Contents of Agreement; Parties in Interest; Assignment, Etc.
(a) This Agreement, together with the Related Agreements, sets forth
the entire understanding and agreement of the parties hereto with respect
to the subject matter hereof. All previous agreements, promises,
representations, commitments and understandings, whether verbal or written,
between the parties regarding the subject matter hereof are merged into and
superseded by this Agreement. All representations, warranties, covenants,
terms and conditions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective legal representatives,
successors and permitted assigns of the parties hereto. Nothing contained
in this Agreement, express or implied, is intended to confer upon any
person or entity other than the parties hereto and their respective
successors and permitted assigns any rights or remedies under or by reason
of this Agreement or any Related Agreement.
(b) This Agreement may not be assigned by any party hereto without the
prior written consent of the other party.
8.8 Conflict with Related Agreements. In the event that the terms of this
Agreement conflict with the terms of any of the Related Agreements, the terms of
this Agreement shall govern.
8.9 Dispute Resolution.
(a) Good Faith Negotiation. In the event of any controversy, claim or
dispute (other than a breach by Buyer of Section 5.3 hereof, to which this
Section 8.9 will not apply), the party initiating the controversy, claim or
dispute shall provide to the other party a written notice containing a
brief and concise statement of the matter, together with relevant
supporting facts. During a period of sixty (60) days or such longer period
as mutually agreed, the parties shall attempt to settle the matter by good
faith negotiation.
(b) Outside Decisionmaker. If efforts under Section 8.9(a) are not
successful, the dispute shall be referred to an outside decisionmaker. Such
decisionmaker shall be a person reasonably acceptable to Buyer and Seller.
If the parties cannot agree on one person, then each shall select one
person and those two individuals shall hear the claim. If they cannot
arrive at a unanimous decision, then they shall select a third person who
shall act independently. The decision of the outside decisionmaker(s) shall
not be binding on the parties, but shall be used as a basis for resolving
disputes prior the institution of litigation. In any case, the outside
decisionmaker(s) shall be required to render a decision on the claim in
writing within thirty (30) days of being retained for this purpose by
either party, or sixty (60) days if a third person is necessary. The costs
and expenses of this decisionmaker shall be shared equally by the parties.
Failure to comply with Sections 8.9(a) and 8.9(b) with respect to any
controversy, claim or dispute shall be an absolute bar to the institution
of any litigation or other proceeding.
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(c) In the event any action is required to enforce the terms of this
Agreement, the unsuccessful party in such action shall reimburse the
prevailing party for all costs and expenses (including reasonable
attorneys' fees) incurred by the prevailing party.
8.10 Receipt of Monies or Other Assets. If any monies or other assets are
received by Seller or Buyer to which the other party is entitled in accordance
with the terms of this Agreement, such party shall hold such monies or assets in
trust and shall promptly notify and account therefor to the other within fifteen
(15) days of receipt.
8.11 Section Headings and Gender. The section headings herein have been
inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof. The use of masculine or any
other pronoun herein when referred to any party is for convenience only and
shall be deemed to refer to the particular party intended regardless of the
actual gender of such party.
8.12 Notices. All notices, consents, waivers or other communications which
are required or permitted hereunder shall be in writing and shall be sufficient
if delivered personally (including by means of a nationally recognized overnight
courier service for which a written receipt is given) or by registered or
certified mail, return receipt requested, postage prepaid, or by facsimile
transmission providing a receipt, as follows (or to such other address as shall
be set forth in a notice given in the same manner):
If to Buyer:
Xx. Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
Community Care Services, Inc.
00 Xxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
FAX: 000-000-0000
With a required copy to:
Xxx X. Xxxxxxxxx, Esq.
Nordlicht & Hand
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FAX: 000-000-0000
If to Seller:
Xx. Xxxx Xxxxxx
00 Xxxxxxxx Xxxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000
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With required copies to:
Xxxxx Xxxx, Esq.
Xxxxx, Wiener & Levy, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FAX: 000-000-0000
All such notices shall be deemed to have been given on the date personally
delivered, upon possession of a receipt establishing a facsimile transmission
was received or five (5) days after being mailed in the manner provided above.
8.13 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York without giving effect to the
principles of conflicts of laws.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
/s/ Xxxx Xxxxxx
-----------------------------
Xxxx Xxxxxx
COMMUNITY CARE SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
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