EXHIBIT 2.10
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of
September 1, 1998, among XXXXX ENTERPRISES, INCORPORATED, a Florida corporation
("Sykes"), HEALTHPLAN SERVICES CORPORATION, a Delaware corporation ("HPS"), and
SYKES HEALTHPLAN SERVICES, INC., a Florida corporation (the "Company").
BACKGROUND
On December 18, 1997, Sykes and HPS formed a joint venture known as
Sykes HealthPlan Services, Inc. In exchange for Sykes' and HPS' capital
contributions to the Company, the Company issued to each of Sykes and HPS
5,000,000 shares of common stock $.01 par value per share (the "Common Stock")
of the Company. HPS desires to sell to Xxxxx, and Xxxxx desires to purchase from
HPS, all of HPS' shares of Common Stock of the Company in accordance with the
terms and subject to the conditions of this Agreement. In consideration of the
mutual covenants, agreements, representations, and warranties set forth in this
Agreement, the parties agree as follows:
TERMS
1. ACQUISITION OF SHARES AND OTHER TRANSACTIONS.
1.1 SALE AND PURCHASE OF SHARES OF COMMON STOCK. Upon the terms and
subject to the conditions contained in this Agreement, on the Closing Date (as
defined below) (i) HPS shall sell and transfer to Xxxxx, and Xxxxx shall
purchase from HPS, 5,000,000 shares of Common Stock of the Company (the
"Shares"), which represents all of the shares of Common Stock of the Company
held by HPS, for the Purchase Price (as defined below) and (ii) Sykes shall pay
to HPS the Purchase Price (as defined below).
1.2 PURCHASE PRICE.
(a) AMOUNT. The purchase price for the Shares (the "Purchase Price")
shall be $30,555,000.
(b) MANNER OF PAYMENT. Payment of the Purchase Price will be made at
the Closing (as defined below) by wire transfer in immediately available funds
to an account designated by HPS pursuant to written instructions of HPS
delivered to Sykes before the Closing Date.
1.3 EFFECTIVE DATE. The effective date of the transactions contemplated
by this Agreement will be September 1, 1998.
1.4 ACCOUNTING FOR IPO EXPENSES. The financial accounting effect of the
expenses incurred by the Company directly relating to its initial public
offering registration statement will
be borne by Sykes.
1.5 SHAREHOLDER AGREEMENT. On the Closing Date, Sykes, HPS, and the
Company shall execute a Termination Agreement with respect to the Shareholder
Agreement dated December 18, 1997, among Sykes, HPS, and the Company (the
"Shareholder Agreement") to be effective upon the Closing. Each of HPS and Sykes
confirm that their respective rights and obligations under Section 6.1
"Non-Competition, Confidentiality," "Section 13 "Resolution of Disputes," and
Section 17.4 "Costs of Litigation or Arbitration" of the Shareholder Agreement
survive Closing and the termination of the Shareholder Agreement; provided,
however, that (a) for a Change of Control (as defined below) of HPS that occurs
on or before the first annual anniversary of this Agreement, Section 6.1 shall
terminate on the first annual anniversary of this Agreement and (b) for a Change
of Control of HPS that occurs after the first annual anniversary of this
Agreement, Section 6.1 shall terminate upon such Change of Control. "Change of
Control" shall mean, with respect to HPS: (i) a sale of substantially all of the
assets of HPS or (ii) any merger or consolidation involving HPS that results in
Xxxxx X. Xxxxxx, Xx. beneficially owning a percentage of the surviving entity to
such merger or consolidation that is less than 50% of his percentage ownership
interest in HPS immediately preceding such merger or consolidation.
2. CLOSING OF TRANSACTION.
2.1 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Xxxxx & Xxxxxxx, 000 X. Xxxxx Xx., Xxxxx 0000, Xxxxx, Xxxxxxx, on the Closing
Date. "Closing Date" shall mean September 15, 1998, or such later date after the
satisfaction or waiver of all of the conditions of the respective parties set
forth in Articles 6 and 7 herein, or such other time and place or time as the
parties may mutually determine.
2.2 ACTIONS AT THE CLOSING. At the Closing, (i) HPS shall deliver to
Sykes certificates evidencing the Shares accompanied by a duly executed stock
transfer power and (ii) Sykes will pay to HPS the Purchase Price.
2.3 OTHER CLOSING DELIVERIES.
(a) At the Closing, (i) HPS will deliver to Sykes documentation
reasonably satisfactory to it confirming the obligation of HPS to continue to
outsource to the Company all of HPS' care management services for HPS'
customers; (ii) Sykes will deliver to HPS certified resolutions of Sykes' board
of directors approving the execution of this Agreement and the transactions
contemplated hereby; (iii) HPS will deliver to Sykes certified resolutions of
HPS' board of directors approving the execution of this Agreement and the
transactions contemplated hereby; (iv) HPS will deliver to Sykes an opinion from
counsel to HPS reasonably satisfactory to Sykes relating to this Agreement and
the transactions contemplated hereby; (v) Sykes will
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deliver to HPS an opinion from counsel to Sykes reasonably satisfactory to HPS
relating to this Agreement and the transactions contemplated hereby; (vi) HPS
will deliver to Sykes resignations, effective on or before the Closing, of Xxxxx
X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxxx as directors of the Company; (vii) Sykes
will deliver to HPS documentation reasonably satisfactory to HPS releasing HPS
from its guaranty of the Company's obligations under the Company's Credit
Agreement with NationsBank, N.A.; and (viii) Sykes and HPS will deliver to each
other a Termination Agreement with respect to the Shareholder Agreement as set
forth in Section 1.5 hereof.
3. REPRESENTATIONS AND WARRANTIES OF SYKES.
Sykes represents and warrants to HPS the following, as of the execution
date of this Agreement and as of the Closing Date:
3.1 ORGANIZATION AND AUTHORITY. Sykes is a corporation duly organized
and in active status under the laws of the State of Florida, and has full
corporate power and authority to execute and deliver this Agreement, to carry
out its obligations under this Agreement, and to effect the transactions
contemplated by this Agreement.
3.2 AUTHORIZATION, CONSENTS, AND VALIDITY. The execution, delivery, and
performance of this Agreement by Sykes (a) have been duly authorized by all
requisite corporate action of Sykes, (b) except for compliance with the
Shareholder Agreement, does not require any consent, license, approval, waiver,
or authorization from any governmental authority or any other person, and (c)
will not conflict with the articles of incorporation or bylaws of Sykes. This
Agreement has been duly and validly executed by Sykes and is a valid and legally
binding obligation of Sykes, enforceable against it in accordance with its
terms, except to the extent limited by bankruptcy, reorganization, insolvency,
moratorium, and similar laws of general application affecting the rights and
remedies of creditors and by general equity principles.
3.3 BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereunder have been carried on by Sykes without the
use of any broker, finder, underwriter, or other intermediary whereby such party
would have a valid claim against Sykes, HPS, or the Company for a brokerage
commission, finder's fee, or other similar payment.
3.4 INVESTMENT INTENT. Sykes acknowledges that the Shares will be
acquired for its own account and without any view to the distribution of any
part thereof without registration under the Securities Act and any applicable
state securities laws. Sykes understands that the Shares may not be sold,
transferred or otherwise disposed of without registration under the Securities
Act and applicable state securities laws, unless exemptions from registration
under those laws are available. Sykes represents that it has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Shares, and has the ability to bear
the economic risks of such investment. Sykes further
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acknowledges that, through its ownership interest and board of directors
participation in connection with the Company, Sykes has had access to such
financial and other information from the Company as Sykes deems necessary or
appropriate to evaluate the merits of its investment in the Shares.
3.5 SHAREHOLDER AGREEMENT. Sykes is not aware of any claim of HPS or
Sykes against the other party for damages arising out of acts or omissions of
such other party for a breach of the Shareholder Agreement or that are outside
the scope of the Shareholder Agreement.
4. REPRESENTATIONS AND WARRANTIES OF HPS.
HPS represents and warrants to Sykes the following, as of the execution
date of this Agreement and as of the Closing Date:
4.1 ORGANIZATION AND AUTHORITY. HPS is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware, and
has full corporate power and authority to execute and deliver this Agreement, to
carry out its obligations under this Agreement, and to effect the transactions
contemplated by this Agreement.
4.2 AUTHORIZATION, CONSENTS, AND VALIDITY. The execution, delivery, and
performance of this Agreement by HPS (a) have been duly authorized by all
requisite corporate action of HPS, (b) except for compliance with the
Shareholder Agreement, does not require any consent, license, approval, waiver,
or authorization from any governmental authority or any other person, and (c)
will not conflict with the certificate of incorporation or bylaws of HPS. This
Agreement has been duly and validly executed by HPS and is a valid and legally
binding obligation of HPS, enforceable against it in accordance with its terms,
except to the extent limited by bankruptcy, reorganization, insolvency,
moratorium, and similar laws of general application affecting the rights and
remedies of creditors and by general equity principles.
4.3 BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on by HPS without the use of
any broker, finder, underwriter, or other intermediary whereby such party would
have a valid claim against Sykes, HPS, or the Company for a brokerage
commission, finder's fee, or other similar payment.
4.4 OWNERSHIP OF SHARES. The Shares are owned beneficially and of
record by HPS, free and clear of any lien, mortgage, pledge, encumbrance,
security interest, and (other than the Shareholder Agreement) restriction on
transfer.
4.5 RELATIONSHIP WITH THE COMPANY. Attached to Disclosure Schedule 4.5
are all written contracts or other agreements between the Company and HPS or any
affiliate of HPS ("Affiliate") (as that term is defined in Rule 12b-2 of the
Securities Exchange Act of 1934, as amended). Set forth on Disclosure Schedule
4.5 is a description of the terms and conditions of
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any oral contracts or other agreements between the Company and HPS or any
Affiliate of HPS. Except as set forth on Disclosure Schedule 4.5, neither HPS
nor any Affiliate of HPS is or has been involved in any business arrangement or
relationship with the Company. With respect to each contract and other agreement
listed in or attached to Disclosure Schedule 4.5, to HPS' knowledge, (i) the
contract or agreement is legal, valid, binding, enforceable, and in full force
and effect, (ii) except as otherwise agreed to by the parties, the contract or
agreement will continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of the
transactions contemplated by this Agreement, (iii) neither party is in breach or
default, and no event has occurred that, with notice or lapse of time, would
constitute a breach or default, or permit termination, modification, or
acceleration, under such contract or agreement (and the Company represents that
it is not aware of any such breach, default, or event), and (iv) neither party
has repudiated any provision of such contract or agreement.
4.6 SHAREHOLDER AGREEMENT. HPS is not aware of any claim of HPS or
Sykes against the other party for damages arising out of acts or omissions of
such other party for a breach of the Shareholder Agreement or that are outside
the scope of the Shareholder Agreement.
4.7 ACQUISITION NEGOTIATIONS. As of the date of this Agreement and as
of the Closing, HPS is not engaged in any discussions or negotiations with any
third party regarding a sale of all or substantially all of the assets of HPS or
a merger or other consolidation involving HPS.
5. ADDITIONAL AGREEMENTS.
5.1 PUBLIC ANNOUNCEMENTS. Neither Sykes, HPS, nor the Company shall,
without the consent of the other parties, which consent may be withheld for any
or no reason, make or cause to be made any public announcement or issue any
press release with respect to this Agreement or the transactions contemplated
hereby; PROVIDED that the foregoing shall not preclude communications or
disclosures necessary to (a) in the opinion of such party's counsel, comply with
applicable law or (b) comply with accounting and Securities and Exchange
Commission disclosure obligations, in which case (a) or (b) each other party
shall be advised and the parties shall use their respective best efforts to
cause a mutually agreeable release or announcement to be issued.
5.2 ACCESS TO BOOKS AND RECORDS. Following the Closing, upon two
business days advance notice, Sykes shall cause the Company to provide HPS with
reasonable access during normal business hours to such books and records of the
Company and with such cooperation, assistance, and access to personnel of the
Company as HPS may reasonably request for the purpose of permitting HPS to
obtain any information that is reasonably necessary in connection with HPS'
responsibilities with respect to taxes or otherwise as may be required by law.
Sykes agrees to cause the Company to retain all material records or other
documents relating to tax
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matters of the Company and its members for taxable periods thorough the Closing
Date until six months after the expiration of the longest applicable statute of
limitations or for such longer period as may be reasonably requested by HPS.
5.3 MUTUAL RELEASE. Each of Sykes, HPS, and the Company does hereby
fully, irrevocably, and unconditionally release and forever discharge the other
parties and its affiliates, and such other party's and its affiliates,
successors, assigns, directors, officers, employees, and agents (collectively,
the "Released Parties"), of and from any and all obligations, debts, causes of
action, suits, controversies, damages, and any and all claims, demands, and
liabilities whatsoever, both in law and at equity, known or unknown, that such
party has as of the date hereof or will have as of the Closing Date or may ever
have had as of or prior to the date hereof against the Released Parties arising
out of the Shareholder Agreement, dated December 18, 1997, and the transactions
contemplated thereby or related thereto, including any claims arising out of
Sykes' and HPS's joint ownership of the Company. Notwithstanding the foregoing,
this release (a) shall not be applicable if this Agreement is terminated
pursuant to Section 8 and (b) shall not relieve Sykes or HPS from any of the
covenants and obligations pursuant to the agreements set forth herein or the
agreements between HPS and the Company set forth on Disclosure Schedule 4.5.
6. CONDITIONS PRECEDENT TO SYKES' OBLIGATIONS.
Sykes' obligations under this Agreement are subject to the fulfillment
of the following conditions, each of which must be satisfied before or at the
Closing, unless waived by Sykes:
6.1 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The representations
and warranties of HPS contained in this Agreement shall be true at and as of the
time of Closing as though such representations and warranties were made at and
as of such time.
6.2 PERFORMANCE OF OBLIGATIONS. HPS must have performed every agreement
and obligation required by this Agreement to be performed by it.
6.3 OUTSOURCING AGREEMENT. Receipt by Sykes of documentation reasonably
satisfactory to it confirming the obligation of HPS to continue to outsource to
the Company all of HPS' care management services for HPS' customers.
6.4 BOARD APPROVAL. The board of directors of HPS shall have approved
the execution of this Agreement and the transactions contemplated hereby.
6.5 OPINION. Sykes shall have received from counsel to HPS an opinion
reasonably satisfactory to Sykes relating to this Agreement and the transactions
contemplated hereby.
6.6 BOARD RESIGNATIONS. Sykes shall have received the resignations,
effective on or
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before the Closing, of Xxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxxx as directors
of the Company.
6.7 DUE DILIGENCE. The satisfaction of Sykes with the results of its
due diligence investigation of the Company.
7. CONDITIONS PRECEDENT TO HPS' OBLIGATIONS.
HPS' obligations under this Agreement are subject to the fulfillment of
the following conditions, each of which must be satisfied before or at the
Closing, unless waived by HPS:
7.1 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The representations
and warranties of Sykes contained in this Agreement shall be true at and as of
the time of Closing as though such representations and warranties were made at
and as of such time.
7.2 PERFORMANCE OF OBLIGATIONS. Sykes must have performed every
agreement and obligation required by this Agreement to be performed by it.
7.3 RELEASE FROM NATIONSBANK LINE OF CREDIT. Receipt by HPS of a
release in form and substance reasonably satisfactory to it from its guaranty of
the Company's obligations under the Credit Agreement dated as of March 27, 1998,
between the Company and NationsBank, N.A., as amended.
7.4 BOARD APPROVAL. The board of directors of Sykes shall have approved
the execution of this Agreement and the transactions contemplated hereby.
7.5 OPINION. HPS shall have received from counsel to Sykes an opinion
reasonably satisfactory to HPS relating to this Agreement and the transactions
contemplated hereby.
8. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.
8.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties
made by any party in this Agreement or pursuant hereto shall survive the Closing
until the expiration of any applicable statutes of limitations including any
extensions thereof.
8.2 AGREEMENT TO INDEMNIFY.
(a) Sykes and the Company agree to indemnify, defend, and hold
harmless HPS and its affiliates, successors, assigns, directors, officers,
employees, and agents from and against any and all claims, actions, suits,
proceedings, liabilities, obligations, losses, and damages, amounts paid in
settlement, interest, costs and expenses (including reasonable attorney's fees,
court costs and other out-of-pocket expenses) incurred or suffered by HPS
(collectively, the "Losses") by reason of, resulting from, or in connection with
(i) a breach of any
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representation or warranty of Sykes or the Company contained in or made pursuant
to this Agreement; and (ii) a breach of any agreement or covenant, or any
failure of Sykes or the Company to perform any of its obligations in this
Agreement.
(b) HPS agrees to indemnify, defend, and hold harmless Sykes and
the Company and their affiliates, successors, assigns, directors, officers,
employees, and agents from and against any and all Losses by reason of,
resulting from, or in connection with (i) a breach of any representation or
warranty of HPS contained in or made pursuant to this Agreement; and (ii) a
breach of any agreement or covenant, or any failure of HPS to perform any of its
obligations in this Agreement.
9. TERMINATION AND WAIVER.
9.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date by:
(a) CONDITIONS NOT SATISFIED. (i) Sykes if any of the conditions set
forth in Section 6 are not satisfied by the Closing Date and are not waived by
Sykes; (ii) HPS if any of the conditions set forth in Section 7 are not
satisfied by the Closing Date and are not waived by HPS; or
(b) TIME. Sykes or HPS if the Closing shall not have occurred on or
before September 30, 1998.
9.2 WAIVER OR AMENDMENT OF AGREEMENT. Any term or condition of this
Agreement may be waived or amended at any time prior to the Closing Date by any
party hereto which is entitled to the benefits thereof, by action taken by its
duly authorized representative, whether before or after the action of such
party; PROVIDED, HOWEVER, that such action shall be evidenced by written
instrument duly executed on behalf of such party. The failure of either party to
enforce at any time any provision of this Agreement shall not be construed to be
a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of such party thereafter to enforce
each and every such provision.
10. MISCELLANEOUS PROVISIONS.
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10.1 EXPENSES. Each party to this Agreement will bear all the fees,
costs and expenses which are incurred by it in connection with the transactions
contemplated hereby, whether or not such transactions are consummated. In any
legal proceeding arising out of this Agreement, the losing party shall reimburse
the prevailing party, on demand, for all costs incurred by the prevailing party
in enforcing, defending, or prosecuting any claim arising out of this Agreement,
including all reasonable attorneys' fees and costs.
10.2 GOVERNING LAW AND VENUE. The validity, construction, enforcement,
and interpretation of this Agreement are governed by the laws of the State of
Florida and the federal laws of the United States of America, excluding the laws
of those jurisdictions pertaining to resolution of conflicts with laws of other
jurisdictions. Each party to this Agreement (a) consents to the personal
jurisdiction of the state and federal courts having jurisdiction in Hillsborough
County, Florida, (b) stipulates that the proper, exclusive, and convenient venue
for any legal proceeding arising out of this Agreement is Hillsborough County,
Florida, for state court proceedings, and the Middle District of Florida, Tampa
Division, for federal district court proceedings, and (c) waives any defense,
whether asserted by a motion or pleading, that Hillsborough County, Florida, or
the Middle District of Florida, Tampa Division, is an improper or inconvenient
venue.
10.3 COMPLETE AGREEMENT. This Agreement records the final, complete,
and exclusive understanding among the parties regarding the subjects addressed
in it and supersedes any prior or contemporaneous agreement, understanding, or
representation, oral or written, by any of them.
10.4 RIGHTS OF THIRD PARTIES. Nothing in this Agreement, whether
express or implied, is intended or should be construed to confer or grant to any
person, except Sykes, HPS, and the Company, any claim, right, remedy, or
privilege under, or because of, this Agreement or any provision of it.
10.5 EXECUTION AND EFFECTIVENESS. The parties may execute this
Agreement in counterparts. Each executed counterpart will be considered an
original document, and all executed counterparts, together, will constitute the
same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the day and year first above written.
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XXXXX ENTERPRISES, INCORPORATED
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Name: XXXXX X. XXXXXXX
Title: SVP-FINANCE, TREASURER & CFO
Date: 9/11/98
HEALTHPLAN SERVICES CORPORATION
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: XXXXXXX X. XXXXXX
Title: SVP & CHIEF COUNSEL
Date: 9/11/98
SYKES HEALTHPLAN SERVICES, INC.
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: XXXXX X. XXXXXX
Title: PRESIDENT & CEO
Date: 9/14/98
LIST OF EXHIBITS
Disclosure Schedule 4.5 List of all Contracts and Agreements between the
Company and HPS or any HPS Affiliate
As required by applicable law, the Company will furnish supplementally any
omitted Exhibit or Schedule upon request.
