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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") dated as of
August 30, 1996, between Hawthorn Health Properties, Inc., a California
corporation ("Seller"), and Balanced Care Corporation, a Delaware corporation
("Buyer").
Seller owns all of the issued and outstanding shares of
capital stock (the "Shares") of Xxxxx Management, Inc., a Missouri corporation
(the "Company"). Seller desires to sell and transfer to Buyer, and Buyer
desires to purchase from Seller, the Shares on the terms and subject to the
conditions set forth below. In consideration of the mutual promises, covenants
and agreements contained herein, Seller and Buyer, intending to be legally
bound, agree as follows:
ARTICLE I.
THE TRANSACTION
1.01. SALE AND PURCHASE OF ASSETS. At the Closing, Seller shall sell,
assign, transfer and deliver to Buyer, and Buyer shall purchase from Seller and
take delivery of the Shares free and clear of all encumbrances.
1.02. PURCHASE PRICE. The aggregate purchase price for the Shares
shall be $81,000, payable in cash at the Closing.
1.03. CLOSING. The consummation of the purchase and sale of the Shares
and the other transactions contemplated hereby (the "Closing") shall take place
contemporaneously with the Closing under the Stock Purchase Agreement dated as
of July 26, 1996 (the "Xxxxxx Stock Purchase Agreement"), by and between
Seller, Xxxxx Xxx Xxxxxx, Xx., both individually and as Trustee of the
Revocable Inter Vivos Trust Agreement of Xxxxx Xxx Xxxxxx, Xx., J. Xxxx Xxxxxx
Xxxxxx, Xxxxxx Xxxxxxx Xxxxxx and Xxxx Xxxxxxx Xxxxxx (collectively, "Xxxxxx"),
at the offices of Mercantile Bank of Springfield, 000 Xx. Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxx, or at such other place as the parties agree.
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Buyer to enter into this Agreement and consummate
the transactions contemplated hereby, Seller represents and warrants to Buyer
as follows:
2.01. SHARES; CAPITALIZATION. As of the date of this Agreement, the
authorized capital stock of the Company consists solely of the number of shares
of common stock at the par value per share of such common stock identified on
Schedule 2.01. Schedule 2.01 identifies the number of shares of Stock issued
and outstanding and the number of shares of Stock held in the treasury of the
Company. All of the Shares are owned of record, legally and beneficially, by
Seller, except for any Shares identified on Schedule 2.01 as treasury stock.
Except as may be disclosed on Schedule 2.01, the Shares are free and clear of
any and all encumbrances, including without limitation any and encumbrances
resulting from the acquisition by Seller of the Shares, and upon delivery of
all the Shares hereunder, Buyer will acquire title thereto, free and clear of
any and all encumbrances. There are no options, warrants, subscription rights,
preemptive rights, other rights, proxies, puts, calls, demands, plans,
commitments, agreements, understandings or arrangements of any kind relating to
the Shares. All of the Shares are validly issued, fully paid and non-assessable
and were acquired by Seller in full compliance with all applicable laws, except
as disclosed in Schedule 2.01.
2.02. ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of California, and has the
corporate power and authority to enter into this Agreement and perform its
obligations hereunder and thereunder. The Company is a corporation duly
organized, validly existing and in good standing under the laws of Missouri,
and has the corporate power and authority to own or lease its properties and to
carry on its business.
2.03. AUTHORIZATION; ENFORCEABILITY. This Agreement has been duly
executed and delivered by and constitute the legal, valid and binding
obligations of Seller, enforceable against it in accordance with its terms. All
actions contemplated by this Section 2.03 have been duly and validly authorized
by all necessary corporate proceedings by Seller.
2.04. FINDERS' FEES. Neither Seller, the Company nor any of their
respective officers, directors or employees has employed any broker or finder
or incurred any liability for any brokerage fee, commission or finders' fee in
connection with any of the transactions contemplated hereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Seller to enter into this Agreement and consummate
the transactions contemplated hereby, Buyer represents and warrants to Seller
as follows:
3.01. ORGANIZATION. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of Delaware and has the power and
authority to own or lease its properties, carry on its business, enter into
this Agreement and perform its obligations hereunder.
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3.02. AUTHORIZATION; ENFORCEABILITY. This Agreement has been duly
executed and delivered by and constitute the legal, valid and binding
obligations of Buyer, enforceable against it in accordance with its terms. All
actions contemplated by this Section 3.02 have been duly and validly authorized
by all necessary proceedings by Buyer.
3.03. FINDERS' FEES. Neither Buyer nor any of its officers, directors
or employees has employed any broker or finder or incurred any liability for
any brokerage fee, commission or finders' fee in connection with any of the
transactions contemplated hereby.
ARTICLE IV.
CONDITIONS TO CLOSING; TERMINATION
4.01. CONDITIONS PRECEDENT TO OBLIGATION OF BUYER. The obligation of
Buyer to proceed with the Closing under this Agreement is subject to the
fulfillment prior to or at Closing of the following conditions (any one or more
of which may be waived in whole or in part by Buyer at Buyer's sole option
provided that if Buyer elects to waive such condition, Buyer shall have no
claim against Seller for the waived condition):
(a) BRINGDOWN OF REPRESENTATIONS AND WARRANTIES; COVENANTS.
Each of the representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects on and as of the
Closing Date, with the same force and effect as though such representations and
warranties had been made on, as of and with reference to the Closing Date.
Seller shall have performed in all material respects all of the covenants and
complied in all material respects with all of the provisions required by this
Agreement to be performed or complied with by it at or before the Closing.
(b) LITIGATION. No statute, regulation or order of any
governmental body shall be in effect that restrains or prohibits the
transactions contemplated hereby or that would limit or adversely affect the
Buyer's ownership of the Shares and there shall not have been threatened, nor
shall there be pending, any action or proceeding by or before any governmental
body challenging the lawfulness of or seeking to prevent or delay any of the
transactions contemplated by this Agreement or seeking monetary or other relief
by reason of the consummation of any of such transactions.
(c) CLOSING DOCUMENTS. Buyer shall have received the other
documents referred to in Section 4.03(a). All agreements, certificates,
opinions and other documents delivered by Seller to Buyer hereunder shall be in
form and substance satisfactory to counsel for Buyer, in the exercise of such
counsel's reasonable professional judgment.
4.02. CONDITIONS PRECEDENT TO OBLIGATION OF SELLER. The obligation of
Seller to proceed with the Closing under this Agreement is subject to the
fulfillment prior to or at Closing of the following conditions (any one or more
of which may be waived in whole or in
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part by Seller at Seller's sole option provided that if Seller elects to waive
such condition, Seller shall have no claim against Buyer for the waived
condition):
(a) BRINGDOWN OF REPRESENTATIONS AND WARRANTIES; COVENANTS.
Each of the representations and warranties of Buyer contained in this Agreement
shall be true and correct in all material respects on and as of the Closing
Date, with the same force and effect as though such representations and
warranties had been made on, as of and with reference to the Closing Date.
Buyer shall have performed in all material respects the covenants and complied
in all material respects with all of the provisions required by this Agreement
to be performed or complied with by it at or before the Closing.
(b) LITIGATION. No statute, regulation or order of any
governmental body shall be in effect that restrains or prohibits the
transactions contemplated hereby, and there shall not have been threatened, nor
shall there be pending, any action or proceeding by or before any Governmental
Body challenging the lawfulness of or seeking to prevent or delay any of the
transactions contemplated by this Agreement or seeking monetary or other relief
by reason of the consummation of such transactions.
(c) CLOSING DOCUMENTS. Seller shall also have received the
other documents referred to in Section 4.03(b). All agreements, certificates,
opinions and other documents delivered by Buyer to Seller hereunder shall be in
form and substance satisfactory to counsel for Seller, in the exercise of such
counsel's reasonable professional judgment.
4.03. DELIVERIES AND PROCEEDINGS AT CLOSING.
(a) DELIVERIES BY SELLER. Seller shall deliver or cause to be
delivered to Buyer at the Closing:
i) Certificates representing the Shares duly
endorsed in negotiable form or accompanied by stock powers
duly endorsed in blank.
ii) Certificate executed by an officer of Seller
setting forth all resolutions of the Board of Directors of
Seller authorizing the execution and delivery of this
Agreement and the performance by Seller of the transactions
contemplated hereby.
iii) All governmental and third party consents
required to consummate the transactions contemplated hereby.
iv) The minute books, stock ledgers and corporate
seal of the Company.
v) Resignations of the officers and directors of the
Company, effective at the Closing.
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vi) Consent of Xxxxxx to the assignment of Seller's
rights under the Xxxxxx Stock Purchase Agreement.
vii) Such other agreements and documents as Buyer
may reasonably request.
(b) DELIVERIES BY BUYER. Buyer shall deliver or cause to be
delivered to Seller at the Closing:
i) A certificate of the Secretary of Buyer setting
forth all resolutions of the Board of Directors of Buyer
authorizing the execution and delivery of this Agreement and
the performance by Buyer of the transactions contemplated
hereby, certified by the Secretary of Buyer.
ii) Such other agreements and documents as Seller
may reasonably request.
ARTICLE V.
MISCELLANEOUS
5.01. ASSIGNMENT OF RIGHTS. Seller hereby agrees to assign its rights
to indemnification under the Xxxxxx Stock Purchase Agreement to the extent such
rights relate to the Shares and the Company.
5.02. COSTS AND EXPENSES. All applicable transfer, sales and use taxes
and documentary, filing, recording and vehicle registration fees payable as a
result of the transfer of the Shares hereunder shall be paid by Buyer.
5.03. CONSTRUCTION. As used herein, unless the context otherwise
requires: i) references to "Article" or "Section" are to an article or section
hereof; ii) all "Schedules" referred to herein are to Schedules attached hereto
and are incorporated herein by reference and made a part hereof; iii)
"include", "includes" and "including" are deemed to be followed by "without
limitation" whether or not they are in fact followed by such words or words of
like import; and iv) the headings of the various articles, sections and other
subdivisions hereof are for convenience of reference only and shall not modify,
define or limit any of the terms or provisions hereof.
5.04. FURTHER ASSURANCES. Seller shall, at any time and from time to
time on and after the Closing Date, upon request by Buyer and without further
consideration, take or cause to be taken such actions and execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
instruments, documents, transfers, conveyances and assurances as may be
required or desirable for the better conveying, transferring, assigning and
delivering the Shares to Buyer.
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5.05. NOTICES. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given or made i) the second business day after the date of mailing, if
delivered by registered or certified mail, postage prepaid, return receipt
requested, ii) upon delivery, if sent by hand delivery, iii) upon delivery, if
sent by prepaid overnight carrier, with a record of receipt, or iv) the next
day after the date of dispatch, if sent by cable, telegram, facsimile or
telecopy (with a copy simultaneously sent by registered or certified mail,
postage prepaid, return receipt requested), to the parties at the following
addresses:
(i) if to Buyer, to:
Balanced Care Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
with a required copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: 412-355-6501
(ii) if to Seller, to:
Hawthorne Health Properties, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
with a required copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
One Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Any party hereto may change the address to which notice to it, or copies
thereof, shall be addressed, by giving notice thereof to the other parties
hereto in conformity with the foregoing.
5.06. CURRENCY. All currency references herein are to United States
dollars.
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5.07. ASSIGNMENT; GOVERNING LAW. This Agreement and all the rights and
powers granted hereby shall bind and inure to the benefit of the parties hereto
and their respective permitted successors and assigns. This Agreement and the
rights, interests and obligations hereunder may not be assigned by any party
hereto without the prior written consent of the other parties hereto, except
that Buyer may make such assignments to any Affiliate of Buyer provided that
Buyer remains liable hereunder. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without regard
to its conflict of law doctrines.
5.08. AMENDMENT AND WAIVER; CUMULATIVE EFFECT. To be effective, any
amendment or waiver under this Agreement must be in writing and be signed by
the party against whom enforcement of the same is sought. Neither the failure
of any party hereto to exercise any right, power or remedy provided under this
Agreement or to insist upon compliance by any other party with its obligations
hereunder, nor any custom or practice of the parties at variance with the terms
hereof shall constitute a waiver by such party of its right to exercise any
such right, power or remedy or to demand such compliance. The rights and
remedies of the parties hereto are cumulative and not exclusive of the rights
and remedies that they otherwise might have now or hereafter, at law, in
equity, by statute or otherwise.
5.09. SEVERABILITY. If any term or other provision of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced under any rule of Law in any particular respect or
under any particular circumstances, such term or provision shall nevertheless
remain in full force and effect in all other respects and under all other
circumstances, and all other terms, conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
5.10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HAWTHORN HEALTH PROPERTIES, INC.
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Title: Executive Vice President
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BALANCED CARE CORPORATION
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Title: Assistant Secretary
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