STOCK PURCHASE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is made as of April 28,
1997, between Chase Manhattan Bank, ▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trustees
U/A DTD 5/30/84 As Amended made by and for ▇▇▇▇ ▇. ▇▇▇▇▇ (the "Buyer") and PHP
Healthcare Corporation, a Delaware corporation (the "Company" or the "Seller").
The Buyer and the Company are referred to collectively herein as the "Parties."
WHEREAS, the Buyer intends to purchase from the Company, and the Company
intends to sell to the Buyer, 200,000 shares (the "Shares") of the Company's
common stock, $.01 par value (the "Common Stock") on the terms and subject to
the conditions herein provided;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements herein made, and upon the terms and
subject to the conditions herein contained, the Parties agree as follows:
SECTION 1
Purchase and Sale of Shares
1.1 Transaction. On and subject to the terms and conditions of this
Agreement, the Buyer agrees to purchase from the Company, and the Company agrees
to sell to the Buyer, 200,000 Shares for the consideration specified below in
this Section 1.2.
1.2 Purchase Price. The Buyer agrees to pay to the Company, by wire
transfer of same day funds, at the Closing (as defined in Section 2) $13.00 per
share, for a total payment of $2,600,000.00 (the "Purchase Price").
1.3 Taxes. The Buyer shall bear the cost of any documentary, stamp,
sales, excise, transfer or other taxes payable (other than income taxes
payable by the Company) in respect of the sale of Shares.
SECTION 2
Closing Dates; Delivery
2.1 Closing Dates. The closing of the transactions contemplated by this
Agreement shall be held at the offices of Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, D. C., or such other place
as the Parties may agree, at no later than 5:00 p.m., local time, on May 1, 1997
(the "Closing") or at such other time and place upon which the Company and the
Buyer shall agree (the date of the Closing is hereinafter referred to as
the "Closing Date").
2.2 Delivery. At the Closing, (i) the Company will deliver to Buyer a
certificate for the Shares, registered in the Buyer's name and (ii) the Buyer
will deliver via wire transfer to the Company the Purchase Price specified in
Section 1.2 above in immediately available funds.
SECTION 3
Representations, Warranties and Agreements of the Company
The Company represents and warrants to the Buyer that the statements
contained in this Section 3 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date:
3.1 Organization and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, the jurisdiction of its incorporation and has all required corporate
power and authority to own its property, to carry on its business as presently
conducted and to carry out the transactions contemplated hereby. The Company is
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where such qualification is required, except where failure to
so qualify would not have a material adverse effect on its business or assets.
3.2 Authorization of Transaction. The execution, delivery and performance
of this Agreement have been duly authorized by all necessary corporate or other
action of the Company. This Agreement is a valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors. The
issuance of the Shares pursuant to the terms of this Agreement shall be, at the
Closing, duly and validly authorized, and no further approval or authority of
the shareholders or the directors of the Company or of any governmental
authority or agency will be required for the issuance and sale of the Shares as
contemplated by this Agreement. When issued and sold to the Buyer, the Shares
will be duly and validly issued, fully paid and non-assessable and shall in all
respects rank pari passu with all other Shares of common stock of the Company.
3.3 No Liens. The Shares will be issued free and clear of any lien,
pledge, security interest, claim, option, right of first refusal, transfer
restriction under any shareholder or similar agreement, encumbrance or other
restriction or limitation.
3.4 Approvals; Compliance With Certificate of Incorporation and By-
Laws. The Company is not in violation of its Certificate of Incorporation (the
"Certificate") or By-Laws as of the date hereof. The execution, delivery and
performance of this Agreement and the transactions contemplated hereby will not
conflict with or constitute a breach or violation of the Certificate or By-Laws
or of any agreement or other instrument to which the Company is a party.
3.5 Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency or
court to which the Company is subject or (ii) violate or result in a breach or
constitute a default under the terms of any contract or agreement to which the
Seller is a party.
3.6 Securities and Exchange Commission Filings. All information contained
in the Seller's filings with the Securities and Exchange Commission ("SEC") is
accurate in all material respects and such filings do not contain any material
misstatement of fact or omit to state any material. Seller has duly filed with
the SEC all reports and documents required to be filed by it under the
Securities Exchange Act of 1934, as amended. All information contained in such
reports and documents is accurate in all material respects and no such report or
document contains any material misstatement of fact or omits to state any
material fact necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading.
3.7 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Transaction. Upon the effectiveness of the
Amendment No. 1 to the Employment Agreement between the Seller and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇"), dated as of April 30, 1997, Seller is not a party to
any document, nor is Seller aware of any agreement, that prohibits the sale of
300,000 shares of Common Stock, free and clear, by ▇▇. ▇▇▇▇▇▇▇ to the Buyer
pursuant to the Stock Purchase Agreement between ▇▇. ▇▇▇▇▇▇▇ and the Buyer,
dated as of April 30, 1997, in the form attached hereto as Exhibit 3.7.
3.8 No Material Adverse Change. Since the filing of the Seller's Form
10-QA\5 for the quarter ended January 31, 1997, on April 29, 1997, there has
been no event, circumstance or change which would have a material adverse effect
on the properties, business, prospects, results of operations or financial
condition of the Seller and the Seller knows of no such event, circumstance or
change which is threatened.
3.9 Brokers or Finders; Other Offers. The Company has not incurred, and
will not incur, directly or indirectly, as a result of any action taken by the
Company, any liability for brokerage or finders' fees or agents' commissions or
any similar charges in connection with this Agreement.
3.10 Disclaimer of other Representations and Warranties. Except as
expressly set forth in this Section 3, the Company makes no representation or
warranty, express or implied, at law or in equity, in respect of the Shares, the
Company, its assets, liabilities or operations.
SECTION 4
Representations and Warranties of the Buyer
The Buyer hereby represents and warrants to the Company with respect to the
purchase of the Shares as follows:
4.1 Accredited Investor. The Buyer is an "accredited investor" within the
meaning of Rule 501(a)(3) of Regulation D, under the Securities Act of 1933, as
amended (the "Securities Act").
4.2 Purchase for Investment. The Buyer is purchasing the Shares for
investment for its own account, not as a nominee or agent, and not with a view
to any public resale or other distribution thereof except in compliance with
applicable securities laws. The Buyer understands that the Shares are not
registered under the Securities Act or under any state or foreign securities
laws.
4.3 Access to Information. The Buyer acknowledges that it has reviewed
all public information which it considers necessary or advisable to enable it to
make a decision concerning its purchase of Shares.
4.4 Legal Power and Authority. The Buyer has full legal power and
authority to execute and deliver this Agreement and to perform his obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the Buyer, enforceable in accordance with its terms and conditions. Except
for filings with the SEC, the Buyer need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by this
Agreement.
4.5 Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
violate any statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency or
court to which the Buyer is subject.
4.6 Brokers or Finders. The Buyer has not, and will not, incur, directly
or indirectly, as a result of any action taken by such Buyer, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement.
SECTION 5
Buyer's Conditions to Closing
The Buyer's obligations to purchase the Shares at the Closing are subject
to the fulfillment of the following conditions, the waiver of which shall not
be effective unless the Buyer consents in writing thereto:
5.1 Representations and Warranties Correct. The representations and
warranties made by the Company in Section 3 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date in all material
respects and the Buyer shall have received on the Closing Date a certificate
from the Seller in the form of Exhibit 5.1 hereto, stating that all such
representations and warranties are true and correct on the Closing Date in all
material respects.
5.2 Compliance with State Securities Laws. The Company shall have
obtained all permits and qualifications required by any state for the offer and
sale of the Shares, or shall have the availability of exemptions therefrom.
5.3 No Prohibition. No statute, rule or regulation or order of any court
or administrative agency shall be in effect which prohibits Buyer from
consummating the transactions contemplated hereby.
5.4 Opinion of Counsel to Seller. Buyer shall have received an opinion of
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Seller, dated the
Closing Date, in the form of Exhibit 5.4 hereto.
5.5 No Claims. Except as disclosed in the SEC filings, there is no
outstanding order of any governmental body against or involving the Seller and
there are no claims pending or threatened against or involving the Company or
any of its properties which individually or in the aggregate could have a
material adverse effect concerning the transactions contemplated hereby.
5.6 Board Approval. Authority to enter this Agreement and the
transactions contemplated hereby has been duly granted by Seller's Board of
Directors.
5.7 Registration Rights Agreement. The Buyer and the Seller shall enter
into a Registration Rights Agreement, substantially in the form of Exhibit
5.7.
5.8 Amendments to Employment and Registration Rights Agreements. Copies
of the following executed documents shall be delivered to Buyer (i) Amendment
No. 1 to the Employment Agreement, dated as of April 30, 1997,
between ▇▇▇▇▇▇▇ and Seller; substantially in the form or Exhibit 5.8(i) and
(ii) Amendment No. 1 to Registration Rights Agreement, dated April 30, 1997,
by and among the Seller, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Grantor, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee under Trust Indenture dated
October 1, 1985, FBO ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Grantor, and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, substantially in the form of Exhibit 5.8(ii).
SECTION 6
Company's Conditions to Closing
The Company's obligation to sell and issue the Shares at the Closing Date
is subject to the fulfillment as of the Closing Date of the following
conditions, the waiver of which shall not be effective unless the Company
consents in writing thereto:
6.1 Representations. The representations made by the Buyer in Section 4
hereof shall be true and correct when made, and shall be true and correct on the
Closing Date in all material respects, and the Company shall have received on
the Closing Date a certificate from the Buyer stating that all such
representations and warranties are true and correct on the Closing Date in all
material respects.
6.2 Compliance with State Securities Laws. The Company shall have
obtained all permits and qualifications required by any state for the offer and
sale of the Shares or shall have the availability of exemptions therefrom.
6.3 No Prohibition. No statute, rule or regulation or order of any court
or administrative agency shall be in effect which prohibits Company from
consummating the transactions contemplated hereby.
SECTION 7
Restrictions on Transferability of Securities; Compliance with Securities Laws
7.1 General Restrictions on Transferability. The Buyer shall not sell,
assign, transfer or pledge the Shares, except upon satisfaction of the
conditions specified in this Section 7, which conditions are intended to ensure
compliance with the provisions of the Securities Act. The Buyer will cause any
proposed purchaser, assignee, transferee, or pledgee of the Shares held by the
Buyer to agree to take and hold such securities subject to the provisions and
conditions of this Section 7.
7.2 Restrictive Legend. Each certificate representing the Shares shall
be stamped or otherwise imprinted with a legend in the following form (in
addition to any legend required under applicable state securities laws):
THE COMMON STOCK EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, THE
COMMON STOCK MAY NOT BE TRANSFERRED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
REGISTRATION UNDER SUCH ACT AND SUCH LAWS OR PURSUANT TO AN
EXEMPTION THEREFROM.
The Buyer and any subsequent holder consent to the Company making a notation on
its records and giving instructions to any transfer agent of the Shares in order
to implement the restrictions on transfer established in this Section 7.
SECTION 8
Miscellaneous
8.1 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York without regard to its rules of
conflict of laws.
8.2 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the Parties.
8.3 Entire Agreement; Amendment. This Agreement and the other documents
delivered pursuant hereto at the Closing constitute the full and entire
understanding and agreement between the Parties with regard to the subjects
related to herein, and neither the Buyer nor the Company shall be liable or
bound to any other party in any manner by any warranties, representations or
covenants except as specifically set forth herein. Except as expressly provided
herein, neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the party
against whom enforcement of any such amendment, waiver, discharge or termination
is sought.
8.4 Notices. Any notice or other communication in connection with this
Agreement shall be made in writing and served by personal delivery (including,
without limitation, courier, Federal Express or other overnight messenger
service), or mailed by United States certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to the Company:
▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
PHP Healthcare Corporation.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Buyer:
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
Copies to:
Metromedia Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Any party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
8.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the Parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
8.6 Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision hereof.
8.7 Headings. The titles and subtitles used in this Agreement are used
for convenience only and should not be considered in construing or interpreting
this Agreement.
8.8 Expenses. The Buyer and the Company shall each bear their own
expenses with respect to this Agreement and the transactions contemplated
hereby.
8.9 Listing. The Company agrees to use reasonable efforts to cause the
Shares to be listed on the New York Stock Exchange.
8.10 Further Assurances. The Parties agree to use their reasonable efforts
to effectuate this Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, each of the Parties hereto caused this Agreement to be
executed on its behalf as of the date first above written.
PHP HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial
Officer
CHASE MANHATTAN BANK, ▇▇▇▇ ▇.
▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUSTEES
U/A DTD 5/30/84 AS AMENDED MADE BY
AND FOR ▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, Trustee