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EXHIBIT 2.3
FORM OF PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of this _____ day of ____________, 1999, by and between Better Image,
Inc., a Georgia corporation (hereinafter referred to as "Purchaser") and
_______________________, a _________________________ (hereinafter referred to as
"Seller").
W I T N E S S E T H
WHEREAS, Seller owns and operates a cosmetic and reconstructive surgery
practice with offices located in the facilities identified in Exhibit "A", as
amended from time to time (collectively, the "Center"), and furnishes medical
care to the general public through the services of the surgeon(s) affiliated
with the Seller to provide patient care at the Center (the "Surgeon(s)"); and
WHEREAS, Seller wishes to sell all of its right, title and interest in
and to certain of the assets used in connection with the surgical practice
conducted at the Center (except for the right to employ the Surgeon(s)) to
Purchaser and Purchaser wishes to buy all of Seller's right, title and interest
in and to such assets, subject to and upon the terms and conditions herein set
forth.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the premises
and the mutual covenants herein contained, and other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby
acknowledged, Seller and Purchaser hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF ASSETS AND CLOSING.
1.01 PURCHASE. Upon the terms and conditions set forth herein,
Seller shall sell to Purchaser and Purchaser shall purchase from Seller all of
Seller's right, title and interest in and to:
(a) Seller's leasehold interest in and to those certain
facilities comprising the Center, and all medical and other equipment
or furniture leased by Seller (the "Leasehold Interests"), except for
Seller's leasehold interest in medical and other equipment and
furniture that are not assignable to Purchaser pursuant to applicable
state laws and regulations (the "Excluded Leaseholds"). Any reasonable
and customary expense incurred by Seller in connection with the
Excluded Leaseholds shall be considered a Center Expense (as defined in
that certain Service Agreement dated of even date herewith by and
between Purchaser and an entity affiliated with Seller) for the purpose
of determining the Service Fee to be paid to Purchaser.
(b) All of Seller's business licenses, permits,
equipment, tools, furniture, furnishings, fixtures, inventory,
supplies, technology, prepaid items, accounts receivable,
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notes receivable, files, records (other than patient records), patient
lists, supplier lists and all other personal property located at the
Center or used in connection with the business of Seller as a going
concern and with the operation of the Center, reasonably required to
operate a licensed and certified cosmetic and reconstructive surgery
practice, including without limitation, all of those items of personal
property set forth and described in Exhibit "B" attached hereto (such
personal property is hereinafter referred to as the "Personal
Property") (the Leasehold Interest and the Personal Property are
sometimes hereinafter collectively referred to as the "Assets"), but
excluding all property and Excluded Leaseholds set forth and described
in Exhibit "C" (the "Excluded Assets").
1.02 TRANSFER. Seller shall execute and deliver such instruments of
conveyance, sale, assignment or transfer, and shall take or cause to be taken
such further action as the Purchaser or its counsel shall request at any time to
vest, confirm or evidence in the Purchaser good and marketable title to all of
the Assets intended to be conveyed, sold, transferred, assigned and delivered to
the Purchaser under this Agreement, free and clear of all liens, claims and
encumbrances, except the Permitted Exceptions (as hereinafter defined).
1.03 CLOSING DATE. The sale, transfer and delivery of the Assets
pursuant to the terms of this Agreement and the delivery of the Purchase Price
(as hereinafter defined) shall take place as soon as all appropriate conditions
as set forth herein have been fulfilled and after IPO at the offices of King &
Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, or at such other
place and date as Purchaser and Seller shall agree. The date on which the last
of all payments and deliveries occurs is the "Closing Date", and such payments
and deliveries constitute the "Closing." The parties hereto shall use their
reasonable best efforts to satisfy all appropriate conditions as soon as
possible.
SECTION 2. PURCHASE PRICE AND EXPENSES.
2.01 PURCHASE PRICE. Purchaser shall pay to Seller for the Assets
one-hundred percent (100%) of Seller's Adjusted Gross Revenue (as hereinafter
defined) for the previous calendar year (the "Purchase Price") used in
preparation of Purchaser's registration statement on Form S-1 (the "Registration
Statement"). The Purchase Price shall be paid as follows:
(a) Twenty percent (20%) in cash at Closing; and
(b) The remainder in common stock of Purchaser to be
valued at the initial price to the public in the IPO.
As used herein, the term "Adjusted Gross Revenue" shall be determined in
accordance with generally accepted accounting principles and shall mean all fees
and charges recorded or booked by or on behalf of the Seller as a result of
professional medical services personally furnished to patients by the Surgeon(s)
and those under the Surgeon's supervision and other fees or income generated in
their capacity as professionals after any adjustments for uncollectible
accounts,
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professional courtesies, contractual allowances and discounts, and other
activities that do not generate a collectible fee.
2.02 COSTS AND EXPENSES. Each party to this Agreement shall pay its
own fees, costs and expenses and those of its agents, accountants, attorneys and
investment advisors, whether or not the transactions contemplated hereby are
consummated in accordance with the terms of this Agreement.
SECTION 3. COVENANT NOT TO COMPETE.
Seller expressly acknowledges and agrees that Purchaser's business
relies upon the continued efforts and operations of Seller and Seller's equity
holders and to properly protect Purchaser's business interests, and to induce
Purchaser to enter into this Agreement and consummate the transactions
contemplated hereunder, for a period of five years after the Closing Date
hereunder, Seller and each equity holder of Seller or an affiliate thereof shall
not (i) establish, develop or open any facility for the provision of cosmetic
and reconstructive surgical services or provide surgical services at any
facility within a ten mile radius of any facility that is affiliated with
Purchaser or at which Purchaser provides practice management or consulting
services, or (ii) solicit any patients, surgeons, employees or staff associated
with Purchaser or an affiliate thereof.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
Seller hereby represents, warrants and covenants to Purchaser as
follows, and acknowledges and confirms that Purchaser is relying upon such
representations, warranties and covenants in connection with the execution,
delivery and performance of this Agreement, notwithstanding any investigation
made by Purchaser or on its behalf:
4.01 ORGANIZATION OF SELLER. Seller is a [______________________]
formed and in existence under the laws of the State of [__________] and Seller
has the power and authority to own its property and to carry on its business as
and where such business is now conducted. A true and accurate list of all
shareholders of Seller and the number of shares and class of stock held by each
such shareholder is set forth on Exhibit "D" attached hereto.
4.02 TITLE TO ASSETS. Seller has good and marketable title to the
Assets at the Center, and the right to sell, transfer, assign and deliver the
Assets at the Center to Purchaser, free and clear of all liens, encumbrances,
claims, security interests, pledges, agreements and rights of others, except for
the Permitted Exceptions and upon transfer of the Assets to Purchaser, Purchaser
will hold good and marketable title to the Assets free and clear of all liens,
claims, encumbrances, and rights of third parties whatsoever, except for the
Permitted Exceptions.
4.03 AUTHORIZATION AND BINDING EFFECT. This Agreement and each of
the agreements and instruments contemplated hereby has been duly and validly
authorized, executed and delivered by the Seller and constitutes the legal,
valid and binding obligations of the Seller, enforceable in
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accordance with its terms. All corporate actions and proceedings required for
the execution and delivery of this Agreement, and for the consummation of the
transactions contemplated hereby, have been duly taken.
4.04 NO CONFLICTS. The execution, delivery and performance by the
Seller of this Agreement or any agreements required hereby to be executed by
Seller and consummation of the transactions contemplated hereby, will not (i)
constitute a violation of, conflict with or constitute a default under any term
or provision of the Seller's formation documents, (ii) to the best of Seller's
knowledge, constitute a violation of any statute, ordinance, judgment, order,
decree, regulation or rule of any court, governmental authority or arbitrator or
any license, permit or franchise applicable or relating to the Center or (iii)
result in the creation of any lien upon the Assets pursuant to the provisions of
any of the foregoing.
4.05 CONDITION OF ASSETS. Upon Closing, the Assets, including the
Personal Property, will be in good condition comparable to the condition
existing on the date hereof, ordinary wear and tear excepted. Except for the
Excluded Assets Seller shall not remove any Personal Property from the Center
prior to the Closing, except for the purpose of repair or replacement or in the
ordinary course of business, and any such Personal Property or its replacement,
as the case may be, shall be included in the transaction contemplated hereby.
Seller shall keep all insurance policies or renewals thereof affecting or
covering the Assets in full force and effect up to and including the date of
Closing unless the reason for such policies ceases or such policies are replaced
in the ordinary course of business.
4.06 TAXES. Except as set forth on Exhibit "E", Seller has timely
filed or caused to be timely filed all federal income tax returns and all other
federal, state, county, local or city tax returns which are required to be
filed, and has paid or caused to be paid all taxes shown on said returns or on
any tax assessment received by them (including, without limitation, real and
personal property taxes) to the extent that such taxes have become due. No
events have occurred which could impose on Purchaser any transferee liability
for any taxes, penalties, or interest due or to become due from Seller.
4.07 CLAIMS AND LEGAL ACTIONS. Except as set forth on Exhibit "F",
there is no claim, legal action, counterclaim, suit, arbitration, governmental
investigation or other legal, administrative or tax proceeding, nor any order,
decree or judgment, in progress, pending, or threatened against or relating to
Seller, the Center, the Assets, or the business or operations of the Seller, nor
does Seller know or have reason to be aware of any basis for the same.
4.08 RELIANCE UPON TAX AND LEGAL ADVISORS. With respect to the tax
and other legal consequences of the sale of all of its right, title and interest
in and to certain of the assets used in connection with the surgical practice
conducted at the Center, Seller is relying solely upon the advice of its own tax
and legal advisors.
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4.09 MAINTENANCE OF BUSINESS OPERATIONS AND EMPLOYEES. Seller shall
use its best efforts to preserve and maintain the Center's business operations
intact, and use its best efforts to keep available to Purchaser the services of
the Center's employees, to preserve and maintain the Personal Property and to
preserve to the extent possible the goodwill of the Center's business. Prior to
the Closing Date, Seller shall not except in the usual and ordinary course of
business of Seller consistent with past practice, (i) incur any indebtedness or
other liabilities, guarantee any indebtedness or sell any assets of the Center
(except for the Excluded Assets), (ii) increase the compensation payable to any
employee, stockholder, member or Surgeon other than normal merit and cost of
living increases granted in the ordinary course of business, (iii) enter into
any employment agreements or adopt any employee benefit plan or increase the
benefits or obligations of Seller or the Center under any employee benefit plan,
(iv) permit any of the Assets to be subjected to any new mortgage, pledge,
security interest, lien, claim, encumbrance, or restriction of any kind, or (v)
discharge or satisfy any claims, liabilities or obligations of the Center other
than in the usual course of business.
4.10 CONSENTS. Except as set forth on Exhibit "G", there are no
persons whose consent is necessary for Seller to consummate the transactions
contemplated by this Agreement. Each party hereto agrees to cooperate with each
other party to obtain the consents, approvals and authorizations of third
parties and governmental authorities that any such party reasonably determines
to be necessary to consummate the transactions contemplated by this Agreement.
4.11 NO MANAGEMENT CONTRACT OR LEASE. Except for any lease
agreement(s) between Seller and Seller's landlord(s), which lease agreement(s)
may be assigned by Seller to Purchaser at Closing to the extent assignable and
copies of which lease agreement(s) have been provided to Purchaser by Seller,
there will be no practice management contracts or leases for the Center at the
time of Closing.
4.12 ACCURACY OF INFORMATION. No representations, warranties or
covenants by Seller, nor any statement, list or certificate furnished or to be
furnished to Purchaser pursuant hereto, or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of fact or
omits or will omit to state a fact necessary to make the statements contained
therein not misleading in light of the circumstances under which they were made.
4.13 NOTICE AS TO CHANGES. Seller will promptly advise Purchaser in
writing of the occurrence of any events of which Seller becomes aware after the
date of this Agreement and prior to Closing relating to any of the matters which
are the subject of the covenants, representations and warranties contained
herein.
4.14 BULK SALES. Seller shall comply with any and all applicable
bulk sales laws.
4.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The warranties,
representations and covenants of the Seller contained in this Agreement shall be
true and correct as of the Closing Date with the same force and effect as if
given and made on and as of the date and time of Closing, and such
representations, warranties and covenants shall survive the Closing and the
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consummation of the transactions contemplated by this Agreement for the period
of three (3) years.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser hereby represents, warrants and covenants to Seller as
follows, and acknowledges and confirms that Seller is relying upon such
representations, warranties and covenants in connection with the execution,
delivery and performance of this Agreement, notwithstanding any investigation
made by Seller or on its behalf:
5.01 ORGANIZATION OF PURCHASER. Purchaser is a corporation
organized and in existence under the laws of the State of Georgia and has all
requisite corporate power and authority to enter into this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby.
5.02 AUTHORIZATIONS AND BINDING EFFECT. This Agreement has been
duly and validly authorized, executed and delivered by Purchaser and constitutes
the legal, valid and binding obligation of Purchaser, enforceable in accordance
with its terms. All other corporate proceedings required by the Articles of
Incorporation or the Bylaws of Purchaser or otherwise for the execution and
delivery of this Agreement, and for the consummation of the transactions
contemplated hereby, have been duly taken.
5.03 NO VIOLATION. The execution, delivery and performance by the
Purchaser of this Agreement or any agreements required hereby to be executed by
Purchaser, will not (i) constitute a violation of, conflict with or constitute a
default under any term or provision of the Purchaser's Articles of Incorporation
or bylaws, each as amended, (ii) to the best of Purchaser's knowledge,
constitute a violation of any statute, ordinance, judgment, order, decree,
regulation or rule of any court, governmental authority or arbitrator or any
license, permit or franchise applicable or relating to the Center or (iii)
result in the creation of any lien upon the Purchaser's assets pursuant to the
provisions of any of the foregoing.
5.04 ACCURACY OF INFORMATION. No representations, warranties or
covenants by Purchaser or the members, officers or directors of the Purchaser,
nor any statement, list or certificate furnished or to be furnished to the
Seller pursuant hereto, or in connection with the transactions contemplated
hereby, contains or will contain any material untrue statement of fact or omits
or will omit to state a material fact necessary to make the statements contained
therein not misleading in light of the circumstances under which they were made.
5.05 CLAIMS AND LEGAL ACTIONS. There is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in
progress, pending, or threatened against or relating to Purchaser or the
business or operations of the Purchaser, nor does Purchaser know or have reason
to be aware of any basis for the same.
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5.06 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
warranties and representations of the Purchaser contained herein shall be true
and correct as of the Closing with the same force and effect as if given and
made on and as of the date and time of Closing, and such representations and
warranties shall survive the Closing and the consummation of the transactions
contemplated by this Agreement for the period of three (3) years.
5.07 NOTICE AS TO CHANGES. Purchaser shall promptly advise Seller
in writing of the occurrence of any events of which Purchaser becomes aware
after the date of this Agreement and prior to Closing relating to any of the
matters which are the subject of the covenants, representations and warranties
contained herein.
SECTION 6. CONVEYANCES.
At Closing, the Personal Property shall be conveyed by general
assignment and xxxx of sale. The Leasehold Interests shall be assigned to
Purchaser pursuant to assignment agreements. In advance of the Closing Date,
appropriate forms of such xxxx of sale and assignment agreements shall be
prepared by Purchaser's counsel in conformity with this Agreement and shall be
submitted to Seller for its approval, which shall not be unreasonably withheld.
Good and marketable title to the Assets including, without limitation, the
Personal Property, shall be conveyed from Seller to Purchaser free and clear of
all liens, claims, charges, encumbrances, restrictions, assessments (including,
without limitation, any assessments payable in installments, all of which
installments have not been paid), encroachments, leases and easements, of any
kind, subject only to taxes for the current year, and those other liens, claims,
charges, encumbrances or objections, if any, set forth in Exhibit "H" attached
hereto (such other liens, claims, charges, encumbrances or objections are
hereinafter referred to as "Permitted Exceptions"). Subject to the Permitted
Exceptions, Seller shall have satisfied or canceled of record all debt or
security instruments which create a lien on the Personal Property, including,
without limitation, any mortgage, indenture, security agreement, or deed to
secure debt outstanding on any portion of such Personal Property.
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser to perform this Agreement are subject to
the satisfaction of the following conditions, each of which may be waived in
writing by Purchaser:
7.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
OBLIGATIONS. At Closing, Seller shall certify to Purchaser that (i) the
representations and warranties of Seller herein contained are true and correct
as of the Closing Date with the same effect as though made on the Closing Date
(except for changes permitted or contemplated by the terms of this Agreement or
except to the extent that such changes expressly relate to an earlier date); and
(ii) Seller has performed all obligations and complied with all covenants
required by this Agreement to be performed or complied with by Seller prior to
the Closing Date.
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7.02 DELIVERIES. Seller hereby agrees to, and shall, deliver or
cause to be delivered to the Purchaser at the Closing the following, each of
which shall be in form and substance satisfactory to the Purchaser:
(a) XXXX OF SALE. A General Assignment and Xxxx of Sale
for all of Seller's right, title and interest in and to the Personal
Property and fixtures located at the Center, including those items
described in Exhibit "B" attached hereto;
(b) OTHER INSTRUMENTS. Such other endorsements,
assignments and instruments of transfer and conveyance as may be
necessary to vest in the Purchaser good and marketable title to the
Assets and business to be sold hereunder and as shall be reasonably
requested by Purchaser; and
(c) CERTIFICATES REGARDING AUTHORITY AND OTHER MATTERS.
Certificates or affidavits of Seller in form and substance satisfactory
to Purchaser regarding the authority and power of the Seller to
complete the transactions provided for herein, and the accuracy of
Seller's representations, and warranties and covenants contained
herein.
7.03 AUTHORIZATION OF AGREEMENT BY SELLER. All actions necessary to
authorize the execution, delivery and performance of this Agreement and all
documents contemplated herein and therein shall have been duly and validly taken
by the officers of the Seller, and Seller shall have full power and right to
consummate the transactions contemplated hereby or thereby on the terms provided
herein or therein. Seller shall provide Purchaser at Closing with certified
resolutions of its shareholders and board of directors approving the execution
of this Agreement and the transactions contemplated hereby.
7.04 NO INJUNCTION OR RESTRAINING ORDER. No injunction, restraining
order or other order of any federal or state court in the United States that
prevents the consummation of the transactions contemplated hereby shall be
pending or shall have been issued and remain in effect.
7.05 GOVERNMENTAL CONSENTS, APPROVALS AND AUTHORIZATIONS. All
consents, authorizations, orders or approvals of, and filings or registrations
with, any governmental commission, board or other regulatory body that are
required for or in connection with the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby shall have been
obtained or made.
7.06 INSPECTION AND SURVEY. Purchaser and/or its agents (including
accountants, lawyers and investment bankers) shall have conducted, completed and
be satisfied with (i) a physical plant inspection of the Center and an
inspection of the Personal Property, and (ii) an inspection of the Center's
business, legal and financial books and records, including any leases for office
space, furniture or equipment. Seller shall make such items available to
Purchaser and/or its agents at reasonable times and in such a manner so as not
to unreasonably disrupt the Center's normal business.
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7.07 MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change after the date of the most recent financials in the results of
operations, business, assets, properties, liabilities, financial position or
affairs of the Center or the Seller, which in the reasonable judgment of the
Purchaser has had, or will have a materially adverse effect on the Center or the
Center's business.
7.08 PUBLIC OFFERING OR FIRM UNDERWRITING. Purchaser shall have
completed the IPO for the sale of at least $25,000,000 of common stock of
Purchaser.
7.09 CASUALTY LOSSES. On or prior to the time of Closing, the
Center shall not have sustained any loss, whether or not insured, by reason of
physical damage to the Center caused by fire, flood, accident, explosions or
other calamity which would adversely affect the carrying on of its business in
the normal and regular course.
7.10 ACCOUNTING TREATMENT. Purchaser shall have received approval
from its auditors and an indication of no objection from the Securities and
Exchange Commission (the "SEC") with respect to Purchaser's and the Seller's,
along with other surgical practices, "roll-up" accounting treatment, on terms
acceptable to Purchaser.
7.11 EMPLOYMENT AGREEMENT. Seller or an affiliate shall enter into
a five (5) year employment agreement with any Surgeon who have an equity
interest in Seller or delivers patient care at the Center on average more than
ten (10) days per month at the Center(s), as employee(s) of the Center which
employment agreements shall contain a non-competition agreement with respect to
Purchaser.
7.12 SERVICE AGREEMENT. Seller or an affiliate shall enter into a
twenty (20) year service agreement with Purchaser pursuant to which Purchaser
shall provide practice management and general business services to Seller or
Seller's affiliate.
SECTION 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER.
The obligations of Seller to perform this Agreement are subject to the
satisfaction of the following conditions, each of which may be waived by Seller:
8.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
OBLIGATIONS. At Closing, Purchaser shall certify to Seller that (i) the
representations and warranties of the Purchaser herein contained are true and
correct as of the Closing Date with the same effect as though made on the
Closing Date (except for changes permitted or contemplated by the terms of this
Agreement or except to the extent that they expressly relate to an earlier
date); and (ii) Purchaser has performed all obligations and complied with all
covenants required by this Agreement to be performed or complied with by it
prior to the Closing Date.
8.02 DELIVERY OF THE PURCHASE PRICE. Purchaser shall have delivered
to Seller the Purchase Price.
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8.03 GOVERNMENTAL CONSENTS, APPROVALS AND AUTHORIZATIONS. All
consents, authorizations, orders or approvals of, and filings or registrations
with, any governmental commission, board or other regulatory body that are
required for or in connection with the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby shall have been
obtained or made.
8.04 NO INJUNCTION OR RESTRAINING ORDER. No injunction, restraining
order or other order of any federal or state court in the United States that
prevents the consummation of the transactions contemplated hereby shall be
pending or shall have been issued and remain in effect.
8.05 INITIAL PUBLIC OFFERING. Purchaser shall have completed the
IPO for the sale of at least $25,000,000 of common stock of Purchaser.
SECTION 9. PRORATIONS AND ADJUSTMENTS.
The following items shall be adjusted based on the Closing Date on a
pro rata basis between Seller and Purchaser at the time of the Closing or after
the Closing as agreed upon by Purchaser and Seller:
(a) Personal property ad valorem taxes for the 12 month period
succeeding the applicable tax xxxx due date;
(b) Such other items set forth on Exhibit "I".
SECTION 10. FEDERAL SECURITIES LAW.
10.01 INVESTMENT REPRESENTATION. Seller acknowledges that the
shares of stock of Purchaser to be delivered to the Seller at the Closing
pursuant to this Agreement have not been and will not be registered under the
Securities Act of 1933 ("1933 Act") and may not be sold, transferred, pledged or
otherwise disposed of in the absence of an effective registration statement
covering the shares under the 1933 Act and applicable state securities laws, or
unless an exemption from such registration is available and a legal opinion to
that effect is delivered to and accepted by the Purchaser. The stock to be
acquired by the Seller pursuant to this Agreement is being acquired solely for
Seller's own account, for investment purposes only and with no present intention
of distributing, selling or otherwise disposing of it in connection with a
distribution.
10.02 COMPLIANCE WITH LAW. Seller represents and warrants that none
of the shares of Purchaser stock issued to Seller will be offered, sold,
assigned, pledged, hypothecated, transferred or otherwise disposed of, except
after full compliance with all of the applicable provisions of the 1933 Act and
the rules and regulations of the SEC and applicable state securities laws and
regulations. All certificates evidencing shares of Purchaser stock issued
hereunder shall bear the following restrictive legend, as well as any legend
required by the securities or blue sky laws of the state where Purchaser
resides:
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THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AFTER RECEIPT
OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT AN EXEMPTION
FROM REGISTRATION IS AVAILABLE UNDER APPLICABLE SECURITIES LAWS.
10.03 INVESTMENT RISK. Seller represents and warrants that Seller
is able to bear the economic risk of an investment in Purchaser's stock acquired
pursuant to this Agreement and can afford to sustain a total loss of such
investment and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the proposed
investment and therefore has the capacity to protect Seller's interests in
connection with the acquisition of Purchaser's stock. Seller or its
representatives have had an adequate opportunity to ask questions and receive
answers from Purchaser concerning any and all matters relating to Purchaser and
the transactions described herein.
10.04 ACCREDITED INVESTOR STATUS. Seller represents and warrants
that Seller is an "accredited investor" as defined in Rule 501(a) promulgated
under the 0000 Xxx.
10.05 PIGGYBACK REGISTRATION RIGHTS. Purchaser has no obligation to
register the shares of Purchaser stock that Seller will receive hereunder;
provided, however, in the event Purchaser, at any time within 24 months after
the Closing Date, undertakes a public offering of its shares of Common Stock and
the filing of a registration statement with the SEC in connection therewith,
Purchaser shall notify the Seller in writing of the proposed offering and of any
material terms and conditions of the offering known to Purchaser. Purchaser
shall use all reasonable efforts to have included in such registration statement
all or any portion of the shares distributed to Seller hereunder, subject,
however, to such terms, conditions and limitations (including, without
limitation, the number of shares that Seller may offer to sell in such
registration statement) as any underwriter retained by Purchaser in connection
with such offering may require, and provided that the public offering and sale
of such shares is not restricted by any legend or other condition imposed by any
state securities commissioner. Seller shall take all such action and execute all
such documents including, without limitation, the execution and delivery of an
underwriting agreement in form and substance in all material respects the same
as the underwriting agreement to be signed by Purchaser, as may be requested by
Purchaser. The cost of such public offering shall be borne by Purchaser, except
that Seller shall pay its proportionate share of underwriters' commissions and
discounts and the costs and fees of any attorneys, accountants and other persons
retained by Seller in connection with the offering. The provisions of this
Section 10.05 shall not apply to registration statements filed in connection
with employee stock purchase and option programs by Purchaser or in connection
with actual or proposed acquisitions by Purchaser. Seller shall notify Purchaser
of its election to exercise its rights within thirty (30) days after such
written notice to the Seller.
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SECTION 11. BROKERS.
Seller shall pay all fees due to any real estate broker or finder
employed by Seller. Seller shall indemnify and hold harmless Purchaser for any
and all claims and expenses arising from Seller's employment of a broker or
finder. Purchaser shall pay all fees due to any real estate broker or finder
employed by Purchaser. Purchaser shall indemnify and hold harmless Seller for
any and all claims and expenses arising from Purchaser's employment of a broker
or finder.
SECTION 12. ASSUMED LIABILITIES.
Except as specifically provided in this Agreement and as set forth on
Exhibit "J", Purchaser shall assume no liabilities, obligations or indebtedness
of Seller or the Center whether express or implied, contingent or absolute,
disputed or final, nor shall anything herein be construed to the contrary.
SECTION 13. TERMINATION.
13.01 RIGHT OF TERMINATION. This Agreement and the transactions
contemplated by this Agreement may be terminated at any time prior to the
Closing Date:
(a) By the mutual consent of the Purchaser and the
Seller.
(b) By the Purchaser in the event that the conditions set
forth in Sections 4 and 7 of this Agreement shall not have been
satisfied or waived on or before the Closing.
(c) By the Seller in the event that the conditions set
forth in Sections 5 and 8 of this Agreement shall not have been
satisfied or waived on or before the Closing.
(d) By either party upon written notice after September
30, 1999.
13.02 NOTICE OF TERMINATION. Notice of termination of this
Agreement shall be given by the party so terminating to the other parties
hereto, in accordance with the provisions of Section 15 of this Agreement.
13.03 EFFECT OF TERMINATION. In the event that this Agreement is
terminated pursuant to this Section 13, this Agreement shall be void and have no
further force and effect, without any liability on the part of any of the
parties hereto (or their respective members, stockholders, directors or
officers, if any).
SECTION 14. DESCRIPTIVE HEADINGS.
The descriptive headings of this Agreement are for convenience only and
shall not control or affect the meaning or construction of any provision of this
Agreement.
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SECTION 15. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed given if (a) delivered by hand, (b) mailed by registered or
certified mail (return receipt requested), (c) telecopied and immediately
confirmed, or (d) sent by overnight delivery, to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice) and shall be deemed given on the date on which so hand-delivered or so
telecopied, on the third business day following the date on which so mailed, if
deposited in the United States mail, or on the first business day following the
date on which sent by overnight delivery:
If to Purchaser:
Better Image, Inc.
Two Midtown Plaza, Suite 1220
0000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
If to Seller:
----------------------------
----------------------------
----------------------------
----------------------------
----------------------------
Attn:
----------------------
Telecopier:
----------------
Telephone:
-----------------
SECTION 16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which shall constitute one and the same agreement.
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SECTION 17. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia without regard for its
principles of conflicts of laws.
SECTION 18. ASSIGNABILITY.
This Agreement shall be assignable by Purchaser to any person, firm or
corporation that controls or is under common control with Purchaser.
SECTION 19. WAIVERS AND AMENDMENTS.
Any term or provision of this Agreement may be waived at any time by
the party that is entitled to the benefits thereof, and any term or provision of
this Agreement may be amended or supplemented at any time by the mutual consent
of Purchaser and Seller, except that any waiver of any term or condition, or any
amendment or supplementation, of this Agreement must be in writing. A waiver of
any breach or failure to enforce any of the terms or conditions of this
Agreement shall not in any way affect, limit or waive a party's rights hereunder
at any time to enforce strict compliance thereafter with every term or condition
of this Agreement.
SECTION 20. THIRD PARTY RIGHTS.
Notwithstanding any other provision of this Agreement, this Agreement
shall not create any rights or benefits on behalf of any employee of Seller,
third party or other person, and this Agreement shall be effective only as
between the parties hereto, their successors and permitted assigns.
SECTION 21. ENTIRE AGREEMENT.
This Agreement (including the Exhibits, agreements, documents and
instruments referred to herein) constitutes the entire agreement, and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them with respect to the subject matter hereof.
SECTION 22. SEVERABILITY.
In the event that any one or more of the provisions contained in this
Agreement shall be declared invalid, void or unenforceable, the remainder of the
provisions of this Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
SELLER:
----------------------------------
BY:
-------------------------------
NAME:
-------------------------
TITLE:
-------------------------
PURCHASER:
BETTER IMAGE, INC.
BY:
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XXXXXXXX X. XXXXXXX, CHAIRMAN
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