-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GOy+QP7UXOMPEloYWSCxLKMU/7Gz6v3r90IUmj2oPn7JbaHG5Wvsdoa7BD3/1UZm OagJukLla4K1PzGhDzc5yQ== 0000950144-97-006520.txt : 19970604 0000950144-97-006520.hdr.sgml : 19970604 ACCESSION NUMBER: 0000950144-97-006520 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19970527 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19970603 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: RETIREMENT CARE ASSOCIATES INC /CO/ CENTRAL INDEX KEY: 0000798540 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051] IRS NUMBER: 431441789 STATE OF INCORPORATION: CO FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-14114 FILM NUMBER: 97618560 BUSINESS ADDRESS: STREET 1: 6000 LAKE FORREST DR STE 200 CITY: ATLANTA STATE: GA ZIP: 30328 BUSINESS PHONE: 4042557500 MAIL ADDRESS: STREET 1: 6000 LAKE FORREST DR STREET 2: STE 200 CITY: ATLANTA STATE: GA ZIP: 30328 8-K 1 RETIREMENT CARE ASSOCIATES, INC. 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 - -------------------------------------------------------------------------------- FORM 8-K - -------------------------------------------------------------------------------- CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: May 27, 1997 (Date of earliest event reported) RETIREMENT CARE ASSOCIATES, INC. (Exact name of registrant as specified in its charter) COLORADO 1-14114 43-1441789 (State or other jurisdiction of (Commission file number) (I.R.S. Employer Identification No.) incorporation or organization)
6000 LAKE FORREST DRIVE, SUITE 200 ATLANTA, GEORGIA 30328 (Address of principal executive offices) (404) 255-7500 (Registrant's telephone number, including area code) 2 Item 5. Other Events. On May 27, 1997, Retirement Care Associates, Inc. (the "Company") entered into an amendment (the "Amendment") to the Agreement and Plan of Merger and Reorganization (the "Merger Agreement") by and among Sun Healthcare Group, Inc., a Delaware corporation ("Sun"), Peach Acquisition Corporation, a Colorado corporation and wholly-owned subsidiary of Sun ("Sun Merger Sub"), and the Company, pursuant to which Sun Merger Sub will be merged with and into the Company (the "Merger"). The Amendment (a) changes the exchange ratio provided for in the Merger Agreement such that the Company's shareholders will now receive 0.68265 shares instead of 0.6625 shares of Sun common stock for each share of the Company's common stock owned by them on the effective date of the Merger; (b) eliminates a provision in the Merger Agreement which granted to Christopher F. Brogdon, Connie Brogdon, Edward E. Lane, Darrell C. Tucker and Winter Haven Homes, Inc. an option to purchase the shares of In-House Rehab Corporation (formerly known as Perennial Development Corporation)("In-House") owned by the Company (the "In- House Shares") at a negotiated price not to exceed the book value thereof; (c) for a period of 24 months following the effective time of the Merger, (i) prohibits Sun from selling the In- House Shares, subject to certain exceptions, or acquiring additional shares of the capital stock of In-House, and (ii) requires Sun to vote the In-House Shares with In-House's management for the election of director candidates; and (d) adds to the Merger Agreement additional representations, warranties and covenants with respect to the Company's accounts receivable and accounts payable. The foregoing description is qualified in its entirety by reference to the full text of the Amendment, attached hereto as Exhibit 2.1 and incorporated herein by this reference. Following the execution of the Amendment, the Company and Sun filed with the Securities and Exchange Commission (the "SEC"), on a confidential basis, a preliminary proxy statement with respect to the Merger, and Sun and Contour Medical, Inc. ("Contour") filed with the SEC, on a confidential basis, a preliminary information statement with respect to the proposed merger of a wholly-owned subsidiary of Sun with and into Contour. The Merger is subject to the approval of the shareholders of the Company and the stockholders of Sun and will be considered at separate meetings now anticipated to occur in the third quarter of calendar year 1997. The Merger remains subject to other customary conditions. The Merger will be effective promptly following shareholder approval, assuming satisfaction of other conditions to the Merger. 3 Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. (c) Exhibits. The following is a list of the Exhibits attached hereto. Exhibit No. 2.1 Amendment No. 1 to the Agreement and Plan of Merger and Reorganization dated as of February 17, 1997 among Sun Healthcare Group, Inc., Peach Acquisition Corporation and Retirement Care Associates, Inc. Exhibit No. 99.1 Joint Press Release
4 SIGNATURE Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized. RETIREMENT CARE ASSOCIATES, INC. By: /s/ Phillip M. Rees ---------------------------- Phillip M. Rees Its General Counsel and Assistant Secretary Dated as of May 27, 1997. 5 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE - ----------- ----------- ---- 2.1 Amendment No. 1 to the Agreement and Plan of Merger and Reorganization dated as of February 17, 1997 among Sun Healthcare Group, Inc., Peach Acquisition Corporation and Retirement Care Associates, Inc. 99.1 Joint Press Release
EX-2.1 2 AMENDMENT NO.1 TO THE AGREEMENT & PLAN OF REORG 1 EXHIBIT 2.1 AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF REORGANIZATION THIS AMENDMENT NO 1. to the AGREEMENT AND PLAN OF MERGER AND REORGANIZATION, dated as of February 17, 1997 (the "Merger Agrement," capitalized terms used but not otherwise defined herein are used herein as therein defined), among SUN HEALTHCARE GROUP, INC., a corporation organized and existing under the laws of the State of Delaware ("Parent"), PEACH ACQUISITION CORPORATION, a corporation organized and existing under the laws of the State of Colorado ("Merger Sub") and a direct wholly owned subsidiary of Parent, and RETIREMENT CARE ASSOCIATES, INC., a corporation organized and existing under the laws of the State of Colorado (the "Company"), is made this 27th day of May, 1997 by and among Parent, Merger Sub and the Company. W I T N E S E T H: WHEREAS, Parent, Merger Sub, and the Company desire to amend the Merger Agreement as provided herein. NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledge, and intending to be legally bound hereby, the parties hereto hereby agree as follows: SECTION 1: Amendments to Merger Agreement. The Merger Agreement is hereby amended as follows: (a) Section 3.01(a) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "(a) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common Stock to be cancelled pursuant to Section 3.01(d) and any Dissenting Shares) and all rights in respect thereof shall forthwith cease to exist and shall be converted into and become exchangeable for the lower of (i) 0.68265 shares of Parent Common Stock and (ii) in the event that the Series AA Exchange Ratio is greater than 0.714, 0.68265 shares of Parent Common Stock multiplied by the Adjustment Factor (the lower of such numbers being the "Common Exchange Ratio"); 1 2 (b) Article IV of the Merger Agreement is hereby amended by adding the following Section 4.24 immediately following Section 4.23 thereof: "SECTION 4.24. Receivables and Payables. (a) Section 4.24(a) of the Company Disclosure Schedule sets forth an aged list of the accounts receivable of the Company and the Company Subsidiaries as of April 30, 1997, separately showing the amount of receivables held by the Company and each Company Subsidiary that as of such date had been outstanding (i) 30 days or less, (ii) 31 to 60 days, (iii) 61 to 90 days, (iv) 91 to 120 days and (v) more than 120 days, and separately showing as to each of the foregoing categories the amount of such receivables that are owned by affiliates of the Company. Except to the extent, if any, reserved against in the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997 (the "Company 10-Q"), all accounts receivable reflected in the Company 10-Q arose in, and the Company's accounts receivable existing at the Effective Time will have arisen in, the ordinary course of business, representing bona fide claims of the Company against debtors for sales made, services performed or other charges that to the best of the Company's knowledge are not subject to valid claims of set-off or other defenses or counterclaims and will be collectible in the ordinary course of business without resort to litigation or extraordinary collection practices. (b) Section 4.24(b) of the Company Disclosure Schedule sets forth an aged list of the accounts payable of the Company and the Company Subsidiaries as of April 30, 1997, separately showing the amount of payables owed by the Company and each Company Subsidiary that as of such date has been outstanding (i) 30 days or less, (ii) 31 to 60 days, (iii) 61 to 90 days, (iv) 91 to 120 days and (v) more than 120 days. Except to the extent set forth on Section 4.24(b) of the Company Disclosure Schedule, not of Christopher F. Brogdon, Edward B. Lane, Darrell C. Tucker, Philip M. Rees, John R. Mack or Jeffrey Andrews has been informed by any creditor that any account payable in excess of $35,000 is past due and that as a result of such past due account such creditor has interrupt, suspended or terminated, or threatened to interrupt, suspend or terminate, the provision of goods or services to the Company or any Company Subsidiary (other than where the Company has arranged for an alternate supplier of such goods or services on terms no less favorable ot the Company than those previously available from the terminated supplier prior to such termination.") (c) Clause (iv) of Section 6.01(c) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "(iv) enter into any contract or agreement (A) relating to the provision or receipt of pharmacy products or services, therapy or supplies, or (B) after May 27, 1997 involving annual payment of more than $25,000, which, in the case of either (A) or (B), is not cancelable without penalty upon not more than 60 days notice;" 2 3 (d) Section 6.04 of the Merger Agreement is hereby amended by deleting the word "and" immediately preceding clause (v) thereof and adding the following clause (vi) immediately following clause (v) thereof: "; and (vi) the receipt by any of Christopher F. Brogdon, Edward E. Lane, Darrell C. Tucker, Philip M. Rees, John R. Mack or Jeffrey Andrews of notice from any creditor that any account payable in excess of $35,000 is past due and that as a result of such past due account such creditor has interrupted, suspended or terminated, or threatened to interrupt, suspend or terminate, the provision of goods or services to the Company or any Company Subsidiary (other than where the Company has arranged for an alternate supplier of such goods or services on terms no less favorable to the Company than those previously available from the terminated supplier prior to such termination)." (e) Section 7.10 of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "SECTION 7.10. In-House Rehab Corporation. For a period of 24 months after the Effective Time, Parent agrees that it will (i) not permit the Surviving Corporation to voluntarily sell the shares of capital stock of In-House Rehab Corporation ("In-House") owned by the Company at the Effective Time unless such sale is permitted under Section 6.07 hereof, (ii) not purchase, nor permit the Surviving Corporation to purchase any additional shares of capital stock of In-House; and (iii) cause the Surviving Corporation to vote all of the shares of In-House owned by it in favor of the director candidates nominated by the board of directors of In-House. Nothing in Section 6.07 or this Section 7.10 shall limit the Parent's or the Surviving Corporation's ability to (a) tender or sell any of its shares of capital stock of In-House in connection with a tender offer or any other transaction or series of related transactions in which a third party (including a "group" within the meaning of Section 13(d)(3) of the Exchange Act, but excluding any affiliate of the Parent or the Surviving Corporation) acquires or becomes the beneficial owner of (i) ore than fifty percent (50%) of the outstanding voting securities of In-House or the surviving entity, whether by merger, consolidation, reorganization or other similar means, or (ii) all or substantially all of the assets of In-House, (b) sell or exchange any of its shares of capital stock of In-House in connection with a plan or reorganization pursuant to a bankruptcy proceeding, or (c) sell its shares of capital stock of In-House to In-House pursuant to a stock repurchase program." (f) The Company Disclosure Schedule is hereby amended as follows: (i) The page of Section 4.03 of the Company Disclosure Schedule entitled "Retirement Care Associates, Inc. - Warrants and Convertible Securities Outstanding at February 13, 1997" is hereby amended and restated in its entirety by Schedule I hereto; and 3 4 (ii) Schedule II hereto is added to the Company Disclosure Scheudle as Section 4.24 thereto. (g) Ten days after the Company shall have certified in writing to Parent that it has provided Parent with all information known to the Company as of the date of such certificate with respect to the matters set forth on Scheule III hereto (the "Certification Date"), the Company Disclosure Schedule shall be amended as follows: (i) Section 4.03 of the Company Disclosure Schedule shall be amended from and after the Certificate Date by adding Section 4.03 of Schedule III hereto thereto; (ii) Section 4.09(g) of the Company Disclosure Schedule shall be amended from and after the Certificate Date by adding Section 4.09(g) of Schedule III hereto thereto; and (iii) Section 7.11 of the Company Disclosure Schedule shall be amended from and after the Certification Date by adding Section 7.11 of the Schedule III hereto thereto. SECTION 2. Representations and Warranties. (a) Representations and Warranties of the Company. The Company hereby represents and warrants to Parent and Merger Sub that: The Company has all necessary corporate power and authority to execute and deliver this Amendment, to perform its obligations under the Merger Agreement as amended hereby and to consummate the transactions contemplated hereby. The execution and delivery of this Amendment by the Company and the consummation by the Company of the transactions contemplated by the Merger Agreement as amended hereby have been duly and validly authorized by all necessary corporate action (other than stockholder approval as described in the Merger Agreement). This Amendment has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes the legal, valid and biding obligation of the Company, enforceable against the Company in accordance with its terms. Except as set forth on Schedules III and IV hereto, each of the representations and warranties of the Company contained in the Merger Agreement that is qualified by materiality is true, complete and correct on and as of the date hereof as if made at and as of the date hereof (other than representations and warranties which address matters only as of a certain date which shall be true, complete and correct as of such certain date) and each of the representations and warranties that is not so qualified shall be true, complete and correct in all material respects on and as of the date hereof as if made at and as of the date hereof (other than representations and warranties which address matters only as of a certain date which shall be true, complete and correct in all material respects as of such certain date), in each case except as contemplated or permitted by the Merger Agreement. The Company acknowledged and agrees that (i) Parent shall not have waived any of its rights or remedies under Section 8.03 or 9.01 of the Merger Agreement with respect to anything set forth on Schedule 4 5 III hereto until the Certificate Date shall have occurred; and (ii) Schedule IV hereto is no an amendment ot Article IV of the Merger Agreement or to the Company Disclosure Schedule and that Parent has not waived any of its rights or remedies under Section 8.03 or 9.01 of the Merger Agreement with respect to anything set fort on Schedule IV hereto. (b) Representations and Warranties of Parent and Merger Sub. Parent and Merger Sub hereby jointly and severally represent and warrant to the Company that: Parent and Merger Sub have all necessary corporate power and authority to execute and deliver this Amendment, to perform their respective obligations under the Merger Agreement as amended hereby and to consummate the transactions contemplated hereby. The execution and delivery of this Amendment by Parent and Merger Sub and the consummation by Parent and Merger Sub of the transactions contemplated by the Merger Agreement as amended hereby have been duly and validly authorized by all necessary corporate action (other than stockholder approval as described in the Merger Agreement). This Amendment has been duly executed and delivered by Parent and Merger Sub and, assuming the due authorization, execution and delivery by the Company, constitutes the legal, valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms. Each of the representations and warranties of Parent and Merger Sub contained in the Merger Agreement that is qualified by materiality is true, complete and correct on and as of the date hereof as if made at and as of the date hereof (other than representations and warranties which address matters only as of certain date which shall be true, complete and correct as of such certain date) and each of the representations and warranties that is not so qualified shall be true, complete and correct in all material respects on as as of the date hereof as if made at and as of the date hereof (other than representations and warranties which address matters only as of a certain date which shall be true, complete and correct in all material respects as of such certain date), in each case as contemplated or permitted by the Merger Agreement. SECTION 3. Effect on Merger Agreement. Except as otherwise specifically provided herein, the Merger Agreement shall not be amended but shall remain in full force and effect. SECTION 4. Counterparts. This Amendment may be signed in one or more counterparts, each of which shall be an original but all of which, taken together, shall constitute one and the same instrument. 5 6 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized. SUN HEALTHCARE GROUP, INC By: /s/ Robert D. Woltil ------------------------------------- Name: Robert D. Woltil Title: Senior Vice President for Financial Services and Chief Financial Officer PEACH ACQUISITION CORPORATION By: /s/ Robert D. Woltil ------------------------------------- Name: Robert D. Woltil Title: Vice President RETIREMENT CARE ASSOCIATES, INC. By: /s/ Christopher F. Brogdon ------------------------------------- Name: Christopher F. Brogdon Title: President and Chief Executive Officer 6 7 Schedule I - Attach revised page of Company Disclosure Schedule entitled "Retirement Care Associates, Inc. - Warrants and Convertible Securities Outstanding at February 13, 1997" EX-99.1 3 JOINT PRESS RELEASE 1 EXHIBIT 99.1 [LOGO] SUN HEALTHCARE GROUP, INC. 101 SUN LANE. NE ALBUQUERQUE, NEW MEXICO 87109 CONTACT: Majorie Goldstein (investors) Phyllis Goodman (media) 505-821-3355 SUN HEALTHCARE GROUP AND RETIREMENT CARE ASSOCIATES AMEND MERGER AGREEMENT Albuquerque, N.M., May 29, 1997 -- Sun Healthcare Group Inc. (NYSE:SHG) and Retirement Care Associates, Inc. (NYSE:RCA) announced today that they have amended the terms of their merger agreement. The amendment changes the number of shares of Sun common stock that will be issued for each share of RCA common stock from 0.6625 to 0.68265, to reflect an agreement for Sun to retain RCA's ownership interest in In-House Rehab Corporation (OTC:IHRB). Sun originally entered into merger agreements with RCA and Contour Medical, Inc. (Nasdaq Small Cap:CTMI) on February 17, 1997, that provided for Sun to acquire RCA and Contour, a national provider of medical supplies for the long-term care industry. RCA owns approximately 65 percent of the outstanding shares of Contour. The amendment does not affect Sun's merger agreement with Contour. The original merger agreement called for Sun to sell RCA's ownership interest in In-House Rehab, which constitutes approximately 3.5 million shares, for RCA's basis in the stock. The amended agreement now calls for Sun to issue approximately 350,000 additional shares of Sun common stock to RCA shareholders, and to retain RCA's ownership interest in In-House Rehab. The parties contemplate closing both transactions in the third quarter of 1997. Headquartered in Albuquerque, N.M., Sun Healthcare Group, Inc., is a diversified international long-term care provider. Sun companies operate long-term facilities and 2 - 2 - pharmacy services across the United States and in the United Kingdom. Sun subsidiaries provide therapy services in the United States, fulfill the medical supply needs of nursing homes, and offer a comprehensive array of ancillary services for the healthcare industry. Atlanta, GA.-based RCA operates 120 long-term care, independent and assisted living facilities located primarily in the southeastern United States. Except for historical information, all other matters in this press release are forward-looking statements that involve risks and uncertainties as detailed from time to time in the company's SEC filings, including Sun's annual report on Form 10-K for the fiscal year ended December 31, 1996. # # # -----END PRIVACY-ENHANCED MESSAGE-----