-----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, Iu6C8XvgbTZWPuXtmZASt9QQDJQnPzB0VQeiXuw/ZnMXjBWOYbt1M4N37e6aV1uW x7eqRfSkDnbPJ053xpXQNg== 0000950144-98-004508.txt : 19980415 0000950144-98-004508.hdr.sgml : 19980415 ACCESSION NUMBER: 0000950144-98-004508 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19980403 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980414 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: SEC FILE NUMBER: 001-14114 FILM NUMBER: 98592671 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: April 3, 1998 (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 April 3, 1998, Retirement Care Associates, Inc. ("RCA") entered into a fourth amendment (the "Amendment") to the Agreement and Plan of Merger and Reorganization, dated as of February 17, 1997, as amended by Amendment No. 1 thereto dated as of May 27, 1997, by Amendment No. 2 thereto dated as of August 21, 1997 and by Amendment No. 3 thereto dated as of November 25, 1997 (as amended, the "Merger Agreement"), by and among RCA, Sun Healthcare Group, Inc., a Delaware corporation ("Sun"), and Peach Acquisition Corporation, a Colorado corporation and a wholly-owned subsidiary of Sun ("Merger Sub"), pursuant to which Merger Agreement Merger Sub will be merged (the "Merger") with and into RCA. The Amendment (i) extends the date after which either party may freely terminate the Merger Agreement from March 31, 1998 to June 30, 1998 and (ii) adds as a condition to Sun's obligation to consummate the Merger a requirement that a Memorandum of Understanding entered into in connection with the settlement of certain shareholder litigation involving RCA remain in effect. The Merger is subject to approval by the shareholders of Sun and RCA and will be considered at separate meetings now anticipated to occur in the second quarter of 1998. The Merger remains subject to other customary conditions. The Merger will be effective promptly following shareholder approval, assuming satisfaction of the other conditions to the Merger. The foregoing description is qualified in its entirety by reference to the full text of the Amendment, which is attached hereto as Exhibit 2.1 and incorporated herein by reference. 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. 4 to the Agreement and Plan of Merger and Reorganization dated as of February 17, 1997, as amended by Amendment No. 1 thereto dated as of May 27, 1997, by Amendment No. 2 thereto dated as of August 21, 1997 and by Amendment No. 3 thereto dated as of November 25, 1997 among Sun Healthcare Group, Inc., Peach Acquisition Corporation and Retirement Care Associates, Inc. Exhibit No. 99.1 Joint Press Release 3 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\ Darrell C. Tucker ------------------------- Darrell C. Tucker, Its Treasurer Dated as of April 3, 1998. 4 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE - ----------- ----------- ----- 2.1 Amendment No. 4 to the Agreement and Plan of Merger and Reorganization dated as of February 17, 1997, as amended by Amendment No. 1 thereto dated as of May 27, 1997, by Amendment No. 2 thereto dated as of August 21, 1997 and by Amendment No. 3 thereto dated as of November 25, 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. 4 TO THE AGREEMENT & PLAN OF MERGER 1 EXHIBIT 2.1 AMENDMENT NO. 4 TO THE AGREEMENT AND PLAN OF REORGANIZATION THIS AMENDMENT NO. 4 to the AGREEMENT AND PLAN OF MERGER AND REORGANIZATION, dated as of February 17, 1997, as amended by Amendment No. 1 thereto dated as of May 27, 1997, Amendment No. 2 thereto dated as of August 21, 1997 and Amendment No. 3 thereto dated as of November 25, 1997 (as so amended, the "Merger Agreement," 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 3rd day of April, 1998 by and among Parent, Merger Sub and the Company. W I T N E S S E T H: WHEREAS, Parent, Merger Sub and the Company have entered into the Merger Agreement which provides, upon the terms and subject to the conditions set forth therein, for the Merger of Merger Sub with and into the Company; and WHEREAS, the boards of directors of Parent, Merger Sub and the Company have each determined that it is consistent with and in furtherance of their respective long-term business strategies and fair to and in the best interests of their respective stockholders 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 acknowledged, 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 8.03(e) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "(e) the Memorandum of Understanding (the "MOU") dated as of November 25, 1997, among Chris Brogdon, Darrell C. Tucker, Julian S. Daley, Edward E. Lane, Harlan Mathews and the Company and the plaintiffs on behalf of themselves as well as 2 all members of the class in the Retirement Care Associates Securities Litigation (In re Retirement Care Associates Securities Litigation), Master File No. 1:97-CV-2458-CC (the "Action"), or another agreement providing for the settlement in principle of the Action on terms no less favorable to Parent or the Company than those contained in the MOU, shall be in full force and effect on and as of the Effective Time, and no action shall have been taken by any party (other than Parent) to the MOU or such other agreement to terminate, void or withdraw from, or amend or otherwise modify in a manner adverse to Parent or the Company, the MOU or such other agreement." (b) Section 9.01(b) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "(b) by either Parent or the Company, if the Effective Time shall not have occurred on or before June 30, 1998; provided, however, that the right to terminate this Agreement under this Section 9.01(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have caused, or resulted in, the failure of the Effective Time to occur on or before such date." 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 binding obligation of the Company, enforceable against the Company in accordance with its terms. Since the date of Amendment No. 3 to the Merger Agreement, (i) no damage to, or destruction of, the tangible property or assets of the Company or any of the Company Subsidiaries has occurred, and (ii) no suit, claim, action, proceeding or investigation has been commenced or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary before any Governmental Entity (A) by any party other than a Governmental Entity and relating to patient care matters or (B) by any Governmental Entity, which in the case of clauses (i) or (ii), individually or in the aggregate, could reasonably be expected to have a Company Material Adverse Effect (other than any Disclosed Item). (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 2 3 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. 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. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO CONTRACT OF LAW PRINCIPLES OTHER THAN THOSE DIRECTING NEW YORK LAW) EXCEPT TO THE EXTENT MANDATORILY GOVERNED BY THE LAWS OF THE STATE OF COLORADO. SECTION 5. 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. 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 3 EX-99.1 3 JOINT PRESS RELEASE 1 EXHIBIT 99.1 [LETTERHEAD OF SUN HEALTHCARE GROUP] Contact: Phyllis Goodman (media) Marjorie Goldstein (investors) (505) 821-3355 SUN HEALTHCARE GROUP AND RETIREMENT CARE ASSOCIATES EXTEND TERMINATION DATE OF MERGER AGREEMENT Albuquerque, N.M., and Atlanta, Ga., April 6, 1998 - 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 principal effect of the amendment is to extend the date after which either party may freely terminate the RCA Merger Agreement from March 31, 1998 to June 30, 1998. The amendment also adds as a condition to Sun's obligation to consummate the Merger a requirement that a Memorandum of Understanding entered into in connection with the settlement of certain shareholder litigation involving RCA remain in effect. The boards of directors of Sun and of RCA have each approved the merger agreement amendment. Sun originally entered into separate merger agreements with RCA and Contour Medical, Inc. (Nasdaq SmallCap: CTMI) on Feb. 17, 1997. The parties amended the terms of the RCA agreement on May 27, 1997, and both the RCA and the Contour agreements on Aug. 21, 1997 and Nov. 25, 1997. RCA owns approximately 65 percent of the outstanding shares of Contour. Sun's merger agreement with Contour has been amended to match the RCA amendment in extending the date after which either party may freely terminate the agreement from March 31, 1998 to June 30, 1998. The parties contemplate closing both transactions in the second quarter of 1998. Closing of the transactions is subject to the satisfaction of customary conditions. The RCA acquisition is intended to be accounted for as a pooling of interests. The Contour acquisition is intended to be accounted for as a purchase. Headquartered in Albuquerque, N.M., Sun Healthcare Group, Inc., is a diversified international long-term care provider. Sun operates long-term and subacute care facilities in the United States, the United Kingdom, Spain, Australia and Germany. Sun also provides therapy and pharmacy services, medical supplies and comprehensive ancillary services to the long-term care industry. 2 Atlanta, Ga.-based Retirement Care Associates, Inc. operates long-term care, independent and assisted living facilities located primarily in the southeastern United States. Contour Medical, Inc. is a national provider of medical supplies for the long-term care industry. 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 Dec. 31, 1997. ### 2 -----END PRIVACY-ENHANCED MESSAGE-----