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EXHIBIT 10.1
STOCK SALE, ESCROW AND VOTING AGREEMENT
This Stock Sale, Escrow and Voting Agreement ("Agreement") is made as
of March __, 1999, among 26500 Development Associates Limited Partnership, a
Michigan limited partnership ("Seller"), Universal Standard Healthcare of
Delaware, Inc., a Delaware corporation ("Purchaser"), Universal Standard
Healthcare, Inc., a Michigan corporation (the "Company"), and Xxxxxxxx Xxxxxx
Xxxxxxxx and Xxxx, as escrow agent (the "Escrow Agent").
Recitals
A. Seller is the owner of 587,345 shares (the "Stock") of the Common
Stock of the Company.
B. Purchaser desires to purchase the Stock from Seller, and Seller is
willing to sell the Stock to the Purchaser. Purchaser and Seller desire to enter
into an escrow arrangement in that regard.
C. Seller desires to grant to Purchaser the right to vote the Stock, on
the terms and conditions set forth in this Agreement.
Therefore, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Sale of Stock. Seller hereby sells the Stock to Purchaser for the
sum of $258,432. Such purchase price shall be paid by Purchaser to Seller as
follows: Interest only on the purchase price, at the rate per annum of 10% (or
$2,153.60 per month) shall be paid by Purchaser on the first day of each month
from April 1, 1999 through September 1, 1999; thereafter, Purchaser shall pay
Seller the purchase price in 30 equal, consecutive, monthly payments of
principal and interest (at the rate of 10% per annum) in the amount of $9,771.68
each, on the first day of each month from October 1, 1999 through March 1, 2002.
Seller's sale of the Stock is without representation or warranty of any kind or
nature, other than as to Seller's ownership of and title to the Stock. Seller
represents and warrants to the Purchaser that it is the lawful owner of the
Stock, free and clear of all security interests, liens and encumbrances, except
as created by this Agreement. Purchaser acknowledges that it is acquiring the
Stock for its own account, for investment purposes only, and without any
intention to distribute the Stock, that the Stock constitutes restricted
securities, and that the transfer to Purchaser of the Stock has not been
registered under the Securities Act of 1933 or any state securities statute. The
Purchaser shall have the right to prepay all or a portion of the remaining
principal amount of the purchase price plus accrued interest through the date of
the prepayment on the principal amount so prepaid, without premium or penalty,
and, in the case of a partial prepayment, the remaining monthly payments will be
adjusted accordingly to reflect such prepayment. All cash dividends,
distributions or payments on or arising in connection with or in exchange for
the Stock shall be used to prepay the purchase price as set forth above.
2. Escrow.
2.1 Delivery of Certificates and Stock Powers to the Escrow Agent.
Concurrently with the execution and delivery of this Agreement, Seller is
delivering certificate(s) evidencing the Stock to the Escrow Agent, accompanied
by executed, undated stock powers relating to the Subject Shares (collectively,
the "Escrow Instruments"). The Escrow Agent will hold and deliver the Escrow
Instruments in accordance with the terms and conditions of this Agreement,
unless otherwise directed by a court of competent jurisdiction or by written
agreement of Seller and Purchaser delivered to the Escrow Agent.
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2.2 Duties of the Escrow Agent.
(a) The Escrow Agent undertakes to perform only such
duties as are specifically set forth in this Agreement. The sole duties
of the Escrow Agent under this Agreement will consist of receiving,
holding and delivering the Escrow Instruments in accordance with this
Agreement.
(b) The Escrow Agent will have no responsibility to
inquire into or to determine the genuineness, authenticity or
sufficiency of any document or instrument submitted to it in connection
with its duties under this Agreement.
(c) The Escrow Agent will be entitled to deem the
signatories of any documents or instruments submitted to it under this
Agreement as being those purported to be authorized to sign such
documents or instruments on behalf of the parties to this Agreement and
will be entitled to rely upon the genuineness of the signatures of such
signatories without inquiry and without requiring any substantiating
evidence.
(d) The Escrow Agent will have no responsibility or
liability to effectuate any transfer of any of the Stock or to pay any
fees or taxes relating to any such transfer.
(e) Without limiting the generality of the foregoing,
the Escrow Agent will not be liable for any action taken or omitted by
it in good faith and in accordance with this Agreement and will not be
liable for any acts or omissions of any kind unless caused by the
Escrow Agent's own willful misconduct or gross negligence.
2.3 Disputes. In the event of any dispute under this Agreement, the
Escrow Agent (a) may elect, in its sole discretion, not to deliver any of the
Escrow Instruments, (b) will not be required to commence any action against any
party, and (c) may, in its sole discretion, deposit any of the Escrow
Instruments with a court of competent jurisdiction.
2.4 Indemnification. Seller and the Purchaser will jointly and
severally reimburse, indemnify and save the Escrow Agent harmless from all
losses, costs, liabilities and expenses (including court costs and attorney's
fees) that it may incur as a result of its performance of its duties in
connection with this Agreement.
2.5 Resignation of the Escrow Agent; Replacement. The Escrow Agent
may resign as such at any time upon 15 days' prior written notice to Seller and
Purchaser. In such event, Seller and Purchaser will appoint a successor in
writing, but if such a successor is not so appointed or does not accept such
appointment at least five days before the Escrow Agent's resignation becomes
effective, the Escrow Agent may (but will not be obligated to) appoint a
temporary successor (who will not be the Seller, the Purchaser or their
affiliates or any of their officers, directors, partners or employees) to act
until such appointment by Seller and Purchaser is made and accepted. Any
successor to the Escrow Agent will execute and deliver to the parties an
instrument accepting such appointment and thereupon such successor to the Escrow
Agent, without further act, deed, conveyance or transfer, will become vested
with all of the rights, interests, powers, authorities and obligations of its
predecessor under this Agreement, with like effect as if originally named as the
Escrow Agent under this Agreement. Upon request of such successor to the Escrow
Agent, the parties will execute and deliver such instruments of conveyance,
assignment and further assurance
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and do such other things as may reasonably be required to more fully and
certainly vest and confirm in such successor to the Escrow Agent all such
rights, interests, powers, authorities and obligations.
2.6 Representation of Seller by Escrow Agent. Purchaser acknowledges
that the Escrow Agent is the legal counsel to Seller and to certain of Seller's
affiliates, and that the Escrow Agent shall not be prevented from representing
Seller or any of its affiliates, with respect to the transactions contemplated
by this Agreement or any disputes arising hereunder or relating hereto or
otherwise, by virtue of its agreement to act as escrow agent hereunder.
2.7 Delivery of Escrow Instruments. Five days after receipt by the
Escrow Agent of a notice from Purchaser that the purchase price provided for in
Section 1 and all interest thereon have been paid in full, the Escrow Agent
shall deliver the Escrow Instruments to Purchaser unless Seller shall have
notified the Escrow Agent that it objects to such delivery. Five days after
receipt by the Escrow Agent of a notice from Seller that Purchaser has defaulted
in any payment of purchase price provided for in Section 1 or in any payment of
interest thereon, the Escrow Agent shall deliver the Escrow Instruments to
Seller, unless Purchaser shall have notified the Escrow Agent that it objects to
such delivery. The party providing a notice to the Escrow Agent shall
simultaneously send such notice to the other parties to this Agreement.
3. Voting Agreement and Irrevocable Proxy.
3.1 Agreement to Vote. From and after the date of this Agreement and
until the Stock is released from escrow hereunder, at all annual and special
meetings of shareholders of the Company, Seller will vote (or in lieu thereof,
will execute one or more written consents with regard to) all of the Stock as
directed by, and in accordance with instructions from, Purchaser. Purchaser will
direct the manner of voting of all of the Stock and the associated written
proxies with regard to all matters which may come before the shareholders of the
Company in proportion to the manner in which all other shares of the Company's
common stock are voted.
3.2. Irrevocable Proxy. In order to secure Seller's obligation to
vote the Stock in accordance with the provisions of Section 3.1, Seller hereby
irrevocably designates, makes, constitutes and appoints Purchaser, or such other
person(s) or entit(y)(ies) as Purchaser may designate from time to time, or any
one or more of them, as Seller's true and lawful irrevocable proxy and
attorney-in-fact, with full power of substitution, to represent and vote (or
execute written consents in lieu thereof), in Purchaser's discretion, all of the
Stock for any and all matters which may come before the shareholders of the
Company.
4. Adjustments for Certain Events. After any stock split, stock
dividend, reverse stock split, recapitalization, reclassification, merger,
consolidation, statutory share exchange, sale of all or substantially all of the
Company's assets, combination or exchange of shares, separation, reorganization
or liquidation of the Company occurring after the date of this Agreement (each a
"Special Event"), as a result of which (a) shares or other securities of any
class, or rights to purchase shares or other securities of any class, are issued
in respect of outstanding shares of common stock of the Company (or are issuable
in respect of securities convertible into shares of common stock of the Company)
or (b) shares of common stock of the Company are changed into the same or a
different number of shares of the same or another class or classes, other
securities, cash or other assets or rights to receive any of the foregoing, then
all shares of common stock of the Company or shares of another class or classes,
other securities, cash or other assets or rights to receive any of the foregoing
relating to any of the Stock and received in connection with any such Special
Event will be subject to
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this Agreement, and deemed to be "Stock" and will be immediately delivered to
the Escrow Agent and held by the Escrow Agent in accordance with the terms of
this Agreement.
5. Transferability. Upon any default by Purchaser in its obligations to
pay to Seller the purchase price for the Stock or any interest thereon which is
not cured within five (5) days after Purchaser's receipt of written notice of
such default from Seller. Seller shall have the right, without the consent of
Purchaser, to sell any or all of the Stock in any commercially reasonable manner
(including but not limited to any sale of the Stock into any market in which the
Company's common stock is then traded or any private sale if the Stock is not
then publicly traded or publicly tradeable without restriction). The Seller
shall give Purchaser reasonable advance notice of the terms of any proposed
private sale and of its intention to sell the Stock in any public market. At any
time prior to the sale by Seller of the Stock as provided above, but following
its delivery to Seller as provided in Section 2.7, the Purchaser may complete
the purchase of the Stock from the Seller by paying the Seller the remaining
unpaid purchase price, plus accrued interest thereon through the date of such
payment. No such sale of the Stock for less than the unpaid portion of the
purchase price, plus interest, shall relieve Purchaser of its obligation to pay
Seller the full purchase price, plus interest (less any amounts received upon
such sales of the Stock), even if all of the shares of Stock have been sold
following a default by Purchaser. Any amount received upon the sale of the Stock
following a default by Purchaser in excess of the unpaid portion of the purchase
price for the Stock, plus interest, shall be promptly paid to Purchaser. The
Seller shall not, directly or indirectly, sell, assign, transfer, pledge or in
any way encumber or dispose of the Stock except as set forth in this Agreement.
Encumbrances or dispositions which are contrary to the terms of this subsection
shall be void.
6. Miscellaneous.
6.1 Notices. Any notice or other communication required or permitted
to be given under this Agreement will be in writing and delivered personally,
telecopied or mailed (by certified, registered or first class mail or by
recognized overnight courier), postage prepaid, and will be deemed given when so
delivered personally, telecopied or if mailed by certified, registered or first
class mail, or by recognized overnight courier, one day after the date of
mailing, as follows:
If to Seller: 26500 Development Associates Limited
Partnership
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
If to Purchaser: Universal Standard Healthcare of
Delaware, Inc.
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: President
With a copy to: Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
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If to the Company: Universal Standard Healthcare, Inc.
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: President
With a copy to: Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
If to the Escrow Agent: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
6.2 Entire Agreement. This Agreement contains the entire agreement
among the parties with regard to the transactions contemplated by this Agreement
and supersedes all prior agreements, commitments, correspondence and
communications, written or oral, with regard thereto.
6.3 Amendments and Waivers. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions of this
Agreement may be waived, only by a written instrument signed by the parties or,
in the case of a waiver, by the party waiving compliance. No delay on the part
of any party in exercising any right, power or privilege under this Agreement
will operate as a waiver of such right, power or privilege, nor will any waiver
on the part of any party of any right, power or privilege under this Agreement
preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege under this Agreement.
6.4 Governing Law, Jurisdiction. The laws of the State of Michigan,
without regard to principles of conflicts of laws, will govern this Agreement
and its subject matter, construction and the determination of any rights, duties
or remedies of the parties arising out of or relating to this Agreement, its
subject matter or any of the transactions contemplated by this Agreement. The
parties acknowledge that the United States District Court for the Eastern
District of Michigan or the Michigan Circuit Court for the County of Xxxxx will
have exclusive jurisdiction over any case or controversy arising out of or
relating to this Agreement, its subject matter or any of the transactions
contemplated by this Agreement and that all litigation arising out of or
relating to this Agreement, its subject matter or any of the transactions
contemplated by this Agreement will be commenced in the United States District
Court for the Eastern District Court of Michigan or in the Michigan Circuit
Court for the County of Xxxxx.
6.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
6.6 Headings. The headings in this Agreement are for reference
purposes only and will not in any way affect the meaning or interpretation of
this Agreement.
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6.7 Severability. If any provision of this Agreement is determined
to be illegal or invalid, such illegality or invalidity will have no effect on
the other provisions of this Agreement, which will remain valid, operative and
enforceable.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
SELLER:
26500 DEVELOPMENT ASSOCIATES LIMITED
PARTNERSHIP
By 26500 Investment Corporation
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, its President
PURCHASER:
UNIVERSAL STANDARD HEALTHCARE
OF DELAWARE, INC.
By: /s/ Xxxx X. Xxx
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Its: CFO
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THE COMPANY:
UNIVERSAL STANDARD HEALTHCARE, INC.
By: Xxxx X. Xxx
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Its: CFO
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ESCROW AGENT:
XXXXXXXX XXXXXX XXXXXXXX AND XXXX
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Partner
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