Exhibit 10.18
This STOCK PURCHASE AGREEMENT, dated as of Otober 31, 1996
(this "Agreement"), by and among EXTENDED FAMILY CARE CORPORATION, a New York
corporation, with its principal place of business at Xxx Xxx Xxxxxxx Xxxx, Xxxxx
Xxxxx, Xxx Xxxx 00000 (the "Company") and ARBOR HOME HEALTH CARE HOLDING, LLC, a
New York limited liability company, with its principal place of business at 000
Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Option
Agreement dated October 31, 1995 ("Option Agreement"), the Company (formerly
named Cosmetic Sciences, Inc.) has granted to Purchaser the Second Option, as
defined therein ("Second Option"), which entitles the Purchaser to purchase
6,500,000 shares of the Company's common stock, $.01 par value, as adjusted for
stock splits, stock dividends, capital reorganizations and similar events
("Second Option Shares"); and
WHEREAS, pursuant to the Option Agreement, Purchaser has the right to
compel the Company to enter into a stock purchase agreement pursuant to which
Purchaser may exercise the Second Option and the Company will make various
representations and warranties as specified in the Option Agreement;
NOW, THEREFORE, in reliance upon the representations, warranties and
agreements made herein and in consideration of the premises and mutual promises
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I
MATTERS RELATING TO THE EXERCISE OF THE SECOND OPTION
Section 1.01. Exercise of the Second Option. Subject to the terms and
provisions hereof, upon the Purchaser's compliance with Section 1.02(i) herein,
which provides for (i) the delivery by Purchaser to the Company of a notice of
exercise of the Second Option and (ii) delivery by Purchaser to the Company the
amount of Six Hundred Fifty Thousand ($650,000.00) Dollars representing the
purchase price of the Second Option Shares ("Purchase Price"), the Company shall
issue to Purchaser the Second Option Shares.
Section 1.02. The Closing. The closing of the exercise of the Second
Option (the "Closing") shall be held at the offices of Xxxxxxx, Lippe,
Goldstein, Wolf & Xxxxxxxxx, P.C., 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 or
at such other place or places as the parties may agree upon, at 11:00 o'clock
A.M., New York time, on October 31, 1996 or such other time and date as may be
mutually approved by the parties in writing, but not later than November 1, 1996
(the "Closing Date"). At the Closing, the following shall occur:
(i) Purchaser will deliver to the Company the Purchase Price,
by certified check or wire transfer in the amount of $650,000, along
with a notice of exercise as required under the Option Agreement, in
the form annexed hereto as Exhibit B.
(ii) If Purchaser has complied with subparagraph 1.02(i), the
Company will issue an Acknowledgement of Exercise of Option, in the
form annexed hereto as Exhibit C, and a stock certificate representing
the Second Option Shares.
Section 1.03. Failure to Timely Close. If, other than through fault of
Purchaser, the Closing does not occur in the time periods provided for above,
then Purchaser may, in its discretion, extend the time period for the Closing to
occur for so long as it may deem appropriate. Such extension shall not be in
derogation of any other rights of Purchaser under this Agreement or the Option
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser, as of the date
hereof, and as of Closing, as follows:
Section 2.01. Title. The Second Option Shares, when issued and
delivered to Purchaser in accordance with Section 1.01 and Section 1.02 hereof,
shall be duly and validly authorized, issued and outstanding, fully paid and
non-assessable. The Second Option Shares are being sold to Purchaser free and
clear of any and all liens, claims and encumbrances.
Section 2.02. Due Incorporation. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of New York and has full corporate and other power and authority to conduct its
business and own its properties as now conducted and owned. The Company is
qualified as a foreign corporation in all jurisdictions in which the nature of
its properties and business requires such qualification and in which
noncompliance with such qualification would materially affect the business of
the Company.
Section 2.03. Capital Structure. The Company's current capital
structure is as follows: 50,000,000 shares of common stock authorized, of which
25,500,226 shares are outstanding; 10,000,000 shares of Preferred Stock
authorized, none of which are outstanding. Other than the Option Agreement,
there are no agreements to issue any of the Company's securities, including, but
not limited to, subscriptions, warrants, options, convertible securities or the
rights to purchase or otherwise acquire the Company's securities. All issued
securities of the Company are validly issued and fully paid, non-assessable
(subject to the provisions of Section 630 of the Business Corporation Law of the
State of New York), are owned free and clear of any liens, pledges or
encumbrances (except as specifically noted herein), and all
issued securities have been issued in compliance with all applicable Federal and
state securities laws.
Section 2.04. Power and Authority; No Defaults. The Company has full
power and authority and has taken all required corporate and other action
necessary to permit the Company to execute and deliver this Agreement, and
otherwise to carry out the terms of this Agreement and all other documents,
instruments or transactions required or contemplated by this Agreement. None of
such actions will violate any provision of the Certificate of Incorporation or
By-laws of the Company, or result in the breach of or constitute a default under
any agreement or instrument or court order to which the Company is a party or by
which it is bound or result in the creation or imposition of any material lien,
claim or encumbrance on any asset of the Company. No event has occurred and no
conditions exist which would constitute violations of this Agreement or the
Option Agreement.
Section 2.05. Enforceability. This Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally, and except that no representation or
warranty is made as to the availability of the remedy of specific performance or
other equitable remedies. No agreement to which the Company is a party gives any
rights to any person to terminate any agreements with the Company or otherwise
to exercise rights against the Company, as a result of the execution of this
Agreement or the performance of the transactions hereby contemplated.
Section 2.06. Litigation. There are no suits, proceedings or
investigations pending or threatened against or affecting the Company, its
assets or any officer or director of the Company, which has or could have a
material adverse effect on the business, assets or financial condition of the
Company, or which concern in any way the transactions contemplated by this
Agreement.
Section 2.07. Title to Assets. The Company has good and sufficient
title to all of the properties and assets which it currently deems necessary for
the conduct of its business. The Company owns not less than 80% of the
outstanding stock of TPC Home Care Services, Inc., its operating subsidiary
("TPC").
Section 2.08. Permits, Licenses, etc. The Company has all franchises,
permits, licenses, and other rights which it currently deems necessary for the
conduct of its business (including, but not limited to, the license of the New
York State Department of Health to operate TPC as a home care services agency)
and it knows of no basis for the denial of such rights in the future. The
Company is not in violation of any order or decree of any court, or of the
provisions of any contract or agreement to which it is a party or by which it
may be bound, or, to the best of its knowledge, of any
law, order or regulation of any governmental authority, and neither the
execution of this Agreement nor the transactions contemplated hereby will result
in any such violation.
Section 2.09. Order and Consents. Except for Federal or State
securities law requirements, if any, the Company is not required to obtain any
order, consent, approval or authorization of, or presently required to make any
declaration or filing with, any United States federal, state or local
governmental authority in connection with the execution and delivery of this
Agreement or its performance of the transactions contemplated herein.
Section 2.10. Financial Information. The Company has furnished to
Purchaser the audited Consolidated Balance Sheet of the Company as at December
31, 1995 and 1994 and the related statements of income, shareholders' equity and
cash flows of the Company for the years then ended. The Company has also
furnished to Purchaser its unaudited Balance Sheet as at June 30, 1996, and
related statement of income, stockholder's equity and cash flow for the three
months then ended. All such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present the financial position of the Company, as at the dates and
for the periods to which they relate. Since the date of the Company's Balance
Sheet as at June 30, 1996 (i) there has been no change in the assets,
liabilities or financial condition of the Company from that reflected in said
Balance Sheet except for changes in the ordinary course of business which in the
aggregate have not been materially adverse and (ii) none of the business,
prospects, financial condition, operations, property or affairs of the Company
has been materially adversely affected by any occurrence or development,
individually or in the aggregate, whether or not insured against.
The Company will be liable to Purchaser for any damages to Purchaser
resulting from breach or inaccuracy of any of the above representations and
warranties.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby represents and warrants to the Company as follows:
(a) Purchaser is a limited liability company duly organized
and validly subsisting under the laws of the State of New York.
(b) This Agreement and the transactions contemplated hereby
have been duly authorized by Purchaser and the person executing this
Agreement on behalf of Purchaser has all the required power and
authority necessary to permit Purchaser to execute and deliver this
Agreement.
(c) Neither the execution of this Agreement nor the
performance of the transactions contemplated hereby will violate the
governing operating agreement of Purchaser or result in the breach of
or constitute a default under any agreement or instrument to which
Purchaser is a party or by which it is bound.
(d) Neither Purchaser nor Xxxx Xxxxxxx has been engaged in any
of the events described in Item 401(f) of Regulation S- K, as
promulgated under the Securities Exchange Act of 1934, as amended.
(e) Xxxx Xxxxxxx owns not less than a 90% interest in
Purchaser.
ARTICLE IV
SURVIVAL OF VARIOUS AGREEMENTS
The Registration Rights and Conditional Put Option Agreement dated
October 31, 1995 between Xxxx and the Company, the Financial Services Agreement
dated October 31, 1995 between the Company and Arbor Management, LLC and the
Voting Trust Agreement dated June 10, 1996 between Xxxx, the Purchaser and the
Company shall all remain in full force and effect. The Option Agreement shall
also remain in full force and effect.
ARTICLE V
FURTHER ASSURANCES
The parties hereto agree that they will cooperate with each other and
will execute and deliver, or cause to be executed and delivered, all such other
instruments and will take all such other actions, as either party hereto may
reasonably request from time to time in order to effectuate the provisions
hereof.
ARTICLE VI
CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The obligations of Purchaser to purchase the Second Option Shares
pursuant to this Agreement shall be subject to the satisfaction of the following
conditions:
Section 6.01. Representations and Warranties. The representations and
warranties of the Company contained in this Agreement shall be true in all
material respects at the execution of this Agreement, and as of the Closing.
Section 6.02. Making of Required Deliveries under Section 1.02(i).
Purchaser shall make the deliveries specified in Section 1.02(i), it being
understood that nothing in this Agreement shall require that such deliveries be
made and the Purchaser will have no liability of any kind if it chooses not to
make such deliveries.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Representations and Warranties. The representations and
warranties made in this Agreement shall survive the execution of this Agreement
and the Closing Date for a period of three years from the date hereof.
Section 7.02. Governing Law. This Agreement shall be construed and
enforced in accordance with the internal, substantive laws of the State of New
York, without giving effect to the conflict of law rules thereof.
Section 7.03. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein shall be deemed validly
given, made or served if in writing and delivered personally (as of such
delivery) or sent by certified mail (as of two days after deposit in a United
States post office), postage prepaid:
(a) if to Purchaser, addressed to:
Arbor Home Health Care Holding, LLC
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
with a copy to:
Xxxxxxx, Lippe, Goldstein,
Wolf & Xxxxxxxxx, P.C.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
(b) if to Company, addressed to:
Cosmetic Sciences, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx Page
with a copy to:
Xxxxxxx Xxxx, Esq.
Xxx Xxx Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
or such other address as shall be furnished in writing by either
party to the other.
Section 7.04 Jurisdiction. Legal proceedings commenced by the
parties arising out of any of the transactions or obligations contemplated by
this Agreement shall be brought exclusively in the state courts of the State of
New York or if properly removed, to the federal courts, in either case in Nassau
County, New York. The parties irrevocably and unconditionally submit to the
jurisdiction of such courts and agree to take any and all future action
necessary to submit to the jurisdiction of such courts. Each of the parties
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding brought in any federal or
state court in Nassau County, New York and further irrevocably waives any claims
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
Section 7.05. Assignment; Amendments, Waivers. Neither the
Company nor the Purchaser shall assign any of its rights or obligations under
this Agreement without the prior written consent of the other, except Purchaser
may assign rights or delegate duties hereunder as long as the majority in
interest of the entity entitled to the rights and subject to the duties under
this Agreement is owned by Xxxx Xxxxxxx, subject to Article 36 of the New York
Public Health Law. No provision of this Agreement may be amended, modified or
waived except by written agreement duly
executed by each of the parties.
Section 7.06. Entire Agreement. This Agreement represents the
entire agreement between the parties related to the exercise of the Second
Option and supersedes and cancels any prior oral or written agreement, letter of
intent or understanding related to that subject matter.
Section 7.07. Binding Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and, to the extent permitted hereunder, their respective
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement.
Section 7.08. Counterparts. This Agreement may be
executed in one or more counterparts, and shall become effective
when one or more counterparts have been signed by each of the
parties.
IN WITNESS WHEREOF, this Stock Purchase Agreement has been
duly executed by the parties hereto on the day and year first above written.
EXTENDED FAMILY CARE CORPORATION
By:Xxxx Xxx Page
Name:Xxxx Xxx Page
Title:Vice President
ARBOR HOME HEALTH CARE HOLDING, LLC
By:Xxxxxx Xxxxxx
Name:Xxxxxx Xxxxxx
Title:Vice President
STATE OF NEW YORK)
) ss.:
COUNTY OF NASSAU )
On the 31st day of October, 1996 before me personally came
Xxxxxx Xxxxxx, to me known to be the Vice President of ARBOR HOME HEALTH CARE
HOLDING, LLC, in and who executed the foregoing Stock Purchase Agreement, and he
acknowledged to me that he executed the same on behalf of ARBOR HOME HEALTH CARE
HOLDING, LLC.
XXXXXX XXXX
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF NEW YORK)
) ss.:
COUNTY OF NASSAU )
On the 31st day of October, 1996 before me personally came
Xxxx Xxx Page, to me known to be the Vice President of EXTENDED FAMILY CARE
CORPORATION, in and who executed the foregoing Stock Purchase Agreement, and he
acknowledged to me that he executed the same on behalf of EXTENDED FAMILY CARE
CORPORATION.
XXXXXX XXXX
NOTARY PUBLIC
[NOTARIAL SEAL]
EXHIBIT B
NOTICE OF EXERCISE OF OPTION
All defined terms used herein have the same meaning as specified in the Stock
Purchase Agreement as to which this Notice of Exercise constitutes Exhibit B.
Pursuant to Section 1(f) of the Option Agreement, the undersigned
Purchaser hereby notifies the Company of the exercise of the Second Option.
As provided in Section 8(a) of the Option Agreement, the undersigned
hereby represents to you that the Second Option Shares are being acquired by the
undersigned for investment and not with a view to the distribution thereof.
ARBOR HOME HEALTH CARE HOLDING, LLC
By: Xxxxxx Xxxxxx
Vice President
EXHIBIT C
ACKNOWLEDGMENT OF EXERCISE OF OPTION
All defined terms used herein have the same meaning as specified in the Stock
Purchase Agreement as to which this Acknowledgment
constitutes Exhibit C.
The Company hereby acknowledges the Purchaser's exercise of the Second
Option as in conformity with the requirements specified for such exercise in the
Option Agreement. The Company hereby acknowledges that Purchaser's obligations
specified in Section 1.02(i) have been complied with by Purchaser.
EXTENDED FAMILY CARE CORPORATION
By: Xxxx Xxx Page
