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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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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)
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COLORADO 1-14114 43-1441789
(State or other jurisdiction of (Commission file number) (I.R.S. Employer Identification No.)
incorporation or organization)
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6000 LAKE FORREST DRIVE, SUITE 200
ATLANTA, GEORGIA 30328
(Address of principal executive offices)
(404) 255-7500
(Registrant's telephone number, including area code)
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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
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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
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Darrell C. Tucker, Its Treasurer
Dated as of April 3, 1998.
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION PAGE
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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
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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
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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
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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
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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.
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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.
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