EXHIBIT 10.73
STOCK PURCHASE AGREEMENT AND RECEIPT
THIS STOCK PURCHASE AGREEMENT AND RECEIPT (this "Agreement") is
made and entered into this 28th day of February, 1997 by and
between TIME INSURANCE COMPANY, a Wisconsin corporation ("Time"),
and STAFF BUILDERS, INC., a Delaware corporation ("Staff
Builders").
RECITALS
WHEREAS, Staff Builders and Time entered into that certain
Management and Stock Option Agreement, dated February 29, 1996 (the
"Management and Option Agreement"), whereby Time purchased an
option (the "Option") from Staff Builders to purchase 100% of the
issued and outstanding capital stock of Staff Builders' wholly
owned subsidiary AdultCare, Inc. ("AdultCare") (capitalized terms
used herein but not defined herein shall have the meanings ascribed
to them in the Management and Option Agreement);
WHEREAS, pursuant to and in accordance with the Management
and Option
Agreement, Time has managed the operations of AdultCare since
February 29, 1996;
WHEREAS, pursuant to a letter dated January 22, 1997, Time
elected to exercise its Option and purchase the capital stock of
AdultCare from Staff Builders, and such transaction is being
consummated simultaneously herewith (the "Closing");
NOW THEREFORE, in consideration of the mutual promises,
covenants, representations and warranties contained herein, and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agrees as
follows:
1.1 Purchase Price.
The purchase price for the exercise of the Option and the
purchase of 600 shares of the Common Stock, no par value, of
AdultCare which constitutes one hundred percent (100%) of the
issued and outstanding capital stock of AdultCare shall be
$1,460,330.00 (the "Purchase Price"). Time has paid the Purchase
Price to Staff Builders as set forth below:
(a) $525,000.00 which is an amount equal to the net tax benefit to
the Staff Builders consolidated tax group resulting from its use,
for federal income tax purposes, of the net operating losses
generated by AdultCare that are based on the amount of funding
provided by Time for the period from January 1, 1996 through the
date of the exercise of the Option (the "NOL");
(b) $300,000.00 in cash that was paid by Time to Staff Builders
on March 1, 1996 and the 1995 Payments totaling $160,330.00 that
were made by Time (collectively, the Option Payment); and
(c) $475,000.00 in cash by wire transfer which Time has herewith
paid.
1.2 Deliveries. At the Closing,
(a) Time has paid the Purchase Price in accordance with Section
1. I above;
(b) Staff Builders has delivered to Time the certificate or
certificates representing the 600 shares of AdultCare common stock
("Common Stock"), representing 100% of the capital stock, either
duly endorsed for transfer to Time or accompanied by appropriate
stock powers;
(c) Staff Builders and Time have caused AdultCare to issue and
deliver to Time a new certificate for the Common Stock, in due
and proper form and registered in the name of Time, and
(d) the parties have delivered to each other the documents and
instruments specified in Sections 5, 6 and 7 of the Management
and Option Agreement.
Each party acknowledges receipt of all such deliveries by the
other party.
1.3 Survival of Representations and Warranties, Covenants and
Agreements and Indemnification Obli2ations. All representations
and warranties in this Agreement or in any certificate or
instrument delivered pursuant to this Agreement shall survive the
execution hereof and the Closing of the purchase of the Common
Stock. Additionally, all covenants and agreements made in this
Agreement, in the Management and Option Agreement including, but
without limitation, those covenants in Article 6 of the Management
and Option Agreement, or in any certificate or instrument delivered
pursuant to this Agreement shall survive the execution hereof and
the Closing of the purchase of the Common Stock. The
indemnification obligations of the parties pursuant to Article VIII
of the Management and Option Agreement shall survive in accordance
therewith.
1.4 Additional Representation by Time.
(a) Except for information designated as estimates, Time
hereby certifies that all information submitted by Time to Staff
Builders to enable Staff Builders to file any required tax returns
for AdultCare or to enable the parties to establish the NOL
pursuant to Section I.I(a) of this Agreement is current, complete
and accurate, and has been prepared in accordance with GAAP. Time
further certifies that all expenses submitted to Staff Builders are
reasonable and necessary for the operation of AdultCare's business
and that all revenues have been recorded.
(b) Time will provide to Staff Builders, no later than March
31, 1997, any and all adjustments with respect to the January and
February AdultCare financial statements, to reflect the actual
revenues and expenses in lieu of estimates originally recorded.
Time hereby certifies that it has not taken and will not take on
any tax return, any expense submitted to Staff Builders with
respect to the determination of the NOL in the Purchase Price.
1.6 338(h)(10) Election. Pursuant to Section 5.6 of the
Management and Option Agreement, Time hereby notifies Staff
Builders that Time elects to have Staff Builders join with Time in
making an election under Section 338(h)(10) of the Code (and any
corresponding elections under state, local or foreign tax law) with
respect to the purchase and sale of the Common Stock. Section 5.6
of the Management and Option Agreement shall govern the Section
338(h)(10) Election and the parties agree to cooperate fully in
connection with such Election.
1.7 Miscellaneous. This Agreement (i) shall be construed and
enforced in accordance with the internal laws of the state of
Florida without regard for its conflict of laws principles, and
(ii) may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall
constitute one and the same instrument. The captions and other
headings combined in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or
interpretation of this Agreement. Nothing in this Agreement,
express or implied, is intended to confer upon any person other
than Time and Staff Builders any rights or remedies hereunder.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
STAFF BUILDELRS, INC.
Attest: By: /s/ Xxxx Xxxxx
Name:Xxxx Xxxxx
/s/ Xxxxx Silver Title:Chief Financial Officer
Secretary
TIME INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: President - Long Term Care
Attest:
/s/ X. Xxxxxxxx
Secretary
