EXHIBIT 2.12
-12-
AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
(Tangible Assets)
THIS AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS ("Asset
Purchase Agreement") is made and entered into as of January 7,
1998, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., Inc., a
California professional dental corporation, as seller ("Seller")
and Omega Orthodontics of Reseda, Inc., a Delaware corporation,
as buyer ("Buyer").
RECITALS
This Asset Purchase Agreement is made with reference to the
following facts and circumstances:
A. Buyer is a management corporation engaged in the
business of providing professional management and marketing
services to orthodontic practices.
B. Seller is a California professional corporation that
operates a dental practice in premises located at ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Practice").
C. Seller desires to sell to Buyer and Buyer desires to
purchase from Seller certain assets of the Practice on the terms
and conditions set forth in this Asset Purchase Agreement.
NOW THEREFORE, in consideration of the covenants and
conditions contained herein and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. PURCHASE AND SALE OF ASSETS
1.1. Assets. On the "Closing Date" (as defined below),
Seller shall sell and assign to Buyer, and Buyer shall acquire
from Seller all of the assets listed in Exhibits 1.1(a) and
1.1(b) attached hereto ("Assets"), which may include certain
specified contracts ("Assumed Contracts").
1.2. Excluded Assets. Excluded from the sale shall be that
portion of the assets and properties of Seller listed in Exhibit
1.2 attached hereto ("Excluded Assets").
2. UNASSUMED LIABILITIES
Except as otherwise specifically listed in Exhibit 2.1
attached hereto ("Assumed Liabilities"), it is the intention of
the parties that Buyer will not assume and shall not be
responsible for any liabilities or obligations of Seller of any
kind or nature whatsoever and Seller agrees to forever hold Buyer
harmless and indemnify Buyer against such liabilities and
obligations, all of which shall remain the obligations of Seller
(the "Unassumed Liabilities").
3. PURCHASE PRICE OF ASSETS
3.1. Consideration. Subject to the terms and conditions of
this Asset Purchase Agreement and in full consideration of the
sale and transfer of the Assets, and in reliance on the
representations, warranties, and covenants of the parties hereto,
Buyer shall pay Seller Twenty-Five Thousand Dollars ($25,000.00)
(the "Purchase Price").
3.2. Purchase Price Allocation. The parties shall agree to
the allocation of the Purchase Price as set forth in Exhibit 3.2
attached hereto and shall use each allocation for purposes of
federal and state tax reporting.
3.3. Payment of Purchase Price. The Purchase Price shall be
paid as set forth in Exhibit 3.3 attached hereto.
3.4. Fair Market Value. The parties agree that the Purchase
Price reflects the fair market value of the Assets and Assumed
Liabilities as specifically bargained for by the parties.
3.5. Sales and Transfer Taxes. Any sales and transfer taxes
in respect of Seller's sale and transfer of the Assets and
Assumed Liabilities to Buyer shall be borne by Seller.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Seller represents and warrants to Buyer that the statements
in this Section 4 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this
Section 4), except as otherwise specifically set forth in the
disclosure schedule delivered by the Seller to Buyer on the date
of this Agreement and as updated (to the extent necessary to make
the statements therein correct and complete) on the Closing Date
and initialed by the parties ("Disclosure Schedule") in Exhibit 4
attached hereto. The Disclosure Schedule is to be arranged in
sections corresponding to the numbered and lettered sections
contained in this Section 4.
4.1. Organization. Seller is a California professional
dental corporation, validly formed, duly existing and in good
standing under the laws of the State of California. Seller is
the sole owner of the Assets and has all requisite authority to
own, lease, sell, assign and transfer the Assets. There are no
outstanding rights, warrants, convertible securities, preemptive
rights, buy-sell agreements, or other agreements or commitments
obligating Seller to sell or transfer any portion of the Assets
or obligating Seller to take or refrain from taking any actions.
4.2. Authorization. Seller has the power and authority to
enter into this Asset Purchase Agreement and consummate the
transactions contemplated hereby. All action on the part of
Seller necessary for the authorization, execution, delivery and
performance of this Asset Purchase Agreement and the consummation
of the transactions contemplated hereby has been or will be taken
prior to the Closing Date, and this Asset Purchase Agreement
(including exhibits, schedules and the ancillary agreements)
constitutes the legal, valid and binding obligation of Seller
enforceable in accordance with its terms.
4.3. No Consent Required; No Violation of Other Agreements.
Neither the execution of this Asset Purchase Agreement by Seller
nor the performance by Seller of its obligations under this Asset
Purchase Agreement, requires the consent of any third party,
which will not have been obtained and delivered to Buyer prior to
the Closing Date. Neither this Asset Purchase Agreement nor any
of the transactions contemplated hereunder violates or shall
violate any lease, contract, document, understanding, agreement
or instrument to which Seller is a party or by which he, she or
it may be bound, or any other lease, contract, document,
understanding, agreement or instrument affecting Seller, the
Assets or the Practice.
4.4. No Default. Seller is not in default under the terms
of any lease, contract, document, understanding, agreement or
instrument pertaining to the Practice, nor has any event occurred
that shall constitute a default by Seller under any of the same
following the passage of time or consummation of any of the
transactions contemplated hereunder, nor has Seller received any
notice of any default under any of the same. No acceleration or
other right to accelerate, terminate, modify, cancel, create a
security interest, or otherwise change any existing arrangement
will be created as a result of the consummation of any of the
transactions contemplated hereunder.
4.5. Conduct of Practice and No Material Changes. Between
the date of the execution of this Asset Purchase Agreement and
the Closing, Seller: (i) shall use best efforts to maintain and
preserve the Assets in good condition and repair, and to prevent
the imposition of any additional Liens (as defined below) on the
Assets, and (ii) shall not liquidate or dissolve Seller, take any
steps to do same, or inform any third person or entity that
Seller has done or intends to do the same.
4.6. Taxes. There are no delinquent federal or state
corporate income or franchise taxes or any federal, state or
local assessments due or owing by Seller with respect to the
Practice. Seller has timely filed or caused to be filed on its
own behalf and on behalf of its employees all tax returns
(federal, state and local) required to be filed by it on or
before the Closing Date, and all taxes shown to be due and
payable on said returns have been paid. There are no actions,
suits, proceedings, investigations, audits, claims or liens now
pending against or related to Seller, the Practice or the Assets
regarding any tax or assessment.
4.7. Title to Assets. At the Closing, Seller shall deliver
title to the Assets to Buyer free and clear of all security
interests, liens, claims, encumbrances, covenants and
restrictions of any nature whatsoever (collectively, "Liens")
except as expressly described on the Disclosure Schedule.
4.8. Right to Premises; Condition of the Property and
Premises. Seller either (i) owns in fee simple absolute the
premises in which the Practice is located ("Premises"); or (ii)
has a valid and enforceable lease for the Premises, and there are
no unpaid mortgage payments, rental payments or any other
applicable amounts now due and payable by Seller with respect to
the Premises or any uncured default by Seller, and no
governmental condemnation proceedings threatened or in process.
4.9. Contracts; Loan Documents.
4.9.1. Seller has furnished to Buyer, for Buyer's
inspection and review, true and complete copies of all contracts,
agreements, leases, documents, written understandings,
instruments, loan documents and security agreements relating to
the Practice or the Assets, if any, and any and all other
documents concerning any Liens against the Assets or any aspect
of the Practice.
4.9.2. The Assumed Contracts remain in full force
and effect in accordance with their terms as of the Closing Date.
Neither Seller nor any other party to any such contract or
agreement, is in default, or alleged to be in default thereunder,
and there exists no condition or event which, with the giving of
notice or the lapse of time or otherwise, would constitute such a
default by Seller or by any other party to any such contracts or
agreements. All of the Assumed Contracts are valid and
enforceable by Seller.
4.10. Powers of Attorney. There are no outstanding
powers of attorney executed on behalf of Seller.
4.11. No Litigation and Insurance. There is no pending
litigation or, to the best of Seller's knowledge, threatened
litigation, unasserted claim, or governmental investigation,
relating to the Assets or the Practice. Seller has adequately
provided insurance for all such claims and will continue to
maintain insurance against all liabilities, claims and risks
against which it is customary to insure.
4.12. Violation of Laws. To the best of Seller's
knowledge, Seller is not in violation of any law, rule,
regulation or administrative or judicial order pertaining to the
Assets or the Practice and, to the best of Seller's knowledge,
there is no law, rule, regulation or administrative or judicial
order that any of the transactions contemplated by this Asset
Purchase Agreement would violate.
4.13. No Brokers or Finders. Seller has not incurred
any liability to any broker, finder or agent for any brokerage
fees, finder's fees or commissions with respect to the
transactions contemplated by this Asset Purchase Agreement, and
if Seller incurred any such liability, such liability shall be
and remain the sole responsibility of Seller and Seller shall
indemnify, defend and hold Buyer harmless from and against any
and all liabilities, losses, damages, claims, causes of action,
costs and expenses (including, without limitation, reasonable
attorneys' fees), arising out of or relating to such liability.
4.14. No Bankruptcy Proceedings. Seller has not (i)
made a general assignment for the benefit of creditors, (ii)
filed any voluntary petition in bankruptcy or suffered the filing
of an involuntary petition by its creditors, (iii) suffered the
appointment of a receiver to take possession of all or
substantially all of its assets, (iv) suffered the attachment or
other judicial seizure of all or substantially all of its assets,
(v) admitted in writing its inability to pay its debts as they
come due, or (vi) made an offer of settlement, extension or
compromise to its creditors generally.
4.15. Patient Records. Seller has maintained, and
agrees to continue to maintain, the confidentiality of all
patient records as required by and in conformance with all
applicable state and federal laws and regulations. Seller has
not transferred, and agrees not to transfer, any patient records
to any individual or entity against the request of any patient
prohibiting the Seller from transferring his/her patient
information or records and shall at Closing retain custody of
such patient records on behalf of Buyer in accordance with
applicable state and federal laws and regulations.
4.16. Bulk Sales. The Practice is not an enterprise
subject to Division 6 of the Commercial Code of California, and
the transactions contemplated hereby are not subject to Division
6 of the California Uniform Commercial Code.
4.17. Inspections. The Disclosure Schedule sets forth
accurately and fully describes (i) all inspections of the Assets
or the Practice by any governmental agency or any consultant at
any time during the previous five (5) years; (ii) all matters
which were noted by any and all such governmental agency or
consultant as requiring correction or modifications which were
requested or recommended; and (iii) the present status of each
such noted matter.
4.18. No Untrue Statements. To the best of Seller's
knowledge, (i) Seller has not made any untrue statement or
representation in connection with this Asset Purchase Agreement,
(ii) all items transferred or delivered and/or given to Buyer by
or from Seller are true, correct and complete copies of what they
purport to be, (iii) there are no undisclosed liabilities of any
nature whatsoever in connection with the Practice or any of the
Assets, (iv) Seller has not failed to state or disclose any
material fact in connection with the transactions contemplated by
this Asset Purchase Agreement, and (v) Seller knows of no facts
and has not misrepresented any facts concerning its ability,
financial or otherwise, to consummate the transactions
contemplated by this Asset Purchase Agreement or that would
otherwise materially adversely affect Buyer's decision to acquire
the Assets.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer hereby represents and warrants to Seller that:
5.1. Organization. Buyer is a corporation validly existing
and in good standing under the laws of the State of Delaware.
5.2. Authority. Buyer has the corporate power and authority
to enter into this Asset Purchase Agreement and to consummate the
transactions contemplated hereby.
5.3. No Brokers or Finders. Buyer has not incurred any
liability to any broker, finder or agent for any brokerage fees,
finder's fees or commissions with respect to the transactions
contemplated by this Asset Purchase Agreement, and if Buyer
incurred any such liability, such liability shall be and remain
the sole responsibility of Buyer, and Buyer shall indemnify,
defend and hold Seller harmless from and against any and all
liabilities, losses, damages, claims, causes of action, costs and
expenses (including, without limitation, reasonable attorneys'
fees), arising out of or relating to such liability.
5.4. No Violation of Other Agreement. Neither this Asset
Purchase Agreement nor any of the transactions contemplated
hereunder violates or shall violate any lease, contract,
document, understanding, agreement or instrument to which Buyer
is a party or by which it may be bound, or any lease, contract,
document, or instrument affecting Buyer.
5.5. No Consent Required. Neither the execution of this
Asset Purchase Agreement by Buyer, nor the performance by Buyer
of its obligation under this Asset Purchase Agreement, requires
the consent of any third party that will not have been obtained
and delivered to Seller prior to the Closing Date.
5.6. No Bankruptcy Proceedings. Buyer has not (i) made a
general assignment for the benefit of creditors, (ii) filed any
voluntary proceeding in bankruptcy or suffered the filing of any
involuntary petition by Buyer's creditors, (iii) suffered the
appointment of a receiver to take possession of all or
substantially all of the assets, properties or business of Buyer,
(iv) suffered the attachment or other judicial seizure of all or
substantially all of the assets, properties or business of Buyer,
(v) admitted in writing its inability to pay its debts as such
debts become due, or (vi) made an offer of settlement, extension
or compromise to its creditors generally.
5.7. No Untrue Statements. To the best of Buyer's
knowledge, (i) Buyer has made no untrue statement or
representation in connection with this Asset Purchase Agreement,
and (ii) Buyer knows of no facts and Buyer has not misrepresented
any facts concerning Buyer's ability, financial and otherwise, to
consummate the transactions contemplated by this Asset Purchase
Agreement or that would otherwise materially adversely affect
Seller's decision to sell the Assets.
6. BUYER'S ACCESS TO RECORDS; CONFIDENTIAL INFORMATION;
PUBLICITY
6.1. Access to Records. Between the date of the execution
hereof and the Closing, Buyer, its appraisers, accountants,
consultants, counsel and other representatives shall have access
during normal business hours to the tax returns, books, records,
licenses, certifications, contracts, agreements and all other
relevant documentation of Seller. Neither Buyer nor its
representatives shall disclose the contents of any of said
materials that Buyer has discovered in the course of its due
diligence ("Due Diligence") to any third party without the prior
written consent of Seller, except: (i) as required by law; (ii)
as may be reasonably necessary in connection with any litigation
or dispute arising out of this Asset Purchase Agreement or any of
the transactions contemplated hereunder; (iii) information
contained in any such materials that was already in Buyer's
possession prior to the date hereof; and (iv) information
contained in any such materials that is or becomes generally
available to the public other than as a result of a disclosure by
Buyer or its agents or employees in violation of this Section
(collectively, the "Exceptions").
6.2. Confidential Information. Seller agrees that at all
times following the Closing Date, Seller shall not use for its
benefit or for any third party's benefit, any confidential
information or trade secrets of Buyer, any "Affiliate" (as
defined below), or of any successor or assignee of Buyer or any
Affiliate, and shall not disclose or cause to be disclosed to any
third party any confidential information or trade secrets of
Buyer, any Affiliate, or any of their respective successors or
assigns at any time on or after the Closing Date. As used
herein, "Affiliate" shall mean any affiliated or related
organization of Buyer.
6.3. Publicity. No party shall, at any time on or after the
date hereof through the Closing Date, issue any publicity or
written or oral statement, or otherwise disclose the existence of
this Asset Purchase Agreement or any of the terms or conditions
hereof, or disclose the contemplation, implementation or
consummation of any of the transactions intended hereby (other
than to its directors, officers, employees, attorneys, financial
advisors and other agents and representatives, as necessary in
order to negotiate, evaluate, approve and consummate the
transactions hereunder), without the prior written consent of
Buyer (in the case of Seller) or Seller (in the case of Buyer),
except in accordance with any of the Exceptions as set forth in
Section 6.1, and except as reasonably required of Buyer by any
applicable federal or state securities law (or agency's)
disclosure requirements. In the case of any written publicity or
statement, the applicable party with the above right of consent
shall have the right to approve in advance the specific language
of any such writing, provided that such approval may not be
unreasonably withheld in the event of occurrence of any of the
Exceptions.
7. CLOSING; CONDITIONS TO OBLIGATIONS TO CLOSE
7.1. Closing and Closing Date. The transactions
contemplated by this Asset Purchase Agreement shall be
consummated at the "Closing." The Closing shall take place at
the offices of Lewitt, Hackman, et al., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
may be designated by Seller and Buyer, on the Closing Date. The
Closing Date shall be January 7, 1998, or such other date as
shall be agreed between the parties.
7.2. Deliveries by Seller. At the Closing, Seller shall
execute (as to documents calling for execution) and deliver to
Buyer the following:
7.2.1. A ▇▇▇▇ of Sale in the form of Exhibit 7.2.1
attached hereto ("▇▇▇▇ of Sale") and such other sufficient
instruments and documents to convey, transfer, assign, or further
perfect, title to each of the Assets (including the Assumed
Contracts) as are reasonably requested by Buyer to transfer the
Assets.
7.3. Deliveries by Buyer. At the Closing, Buyer shall
deliver to Seller the payment of the Purchase Price in accordance
with Exhibit 3.3 attached hereto.
7.4. Conditions to Buyer's Obligations. Buyer's obligation
to consummate the transactions contemplated by this Asset
Purchase Agreement is conditioned upon satisfaction, or waiver by
Buyer in writing, of all of the following on or before the
Closing Date:
7.4.1. The performance by Seller of all of Seller's
promises and agreements under this Asset Purchase Agreement that
are to be performed as of the Closing, including but not limited
to the procurement and delivery to Buyer of all necessary
assignments and consents.
7.4.2. Buyer's reasonable approval or satisfaction
of each item under this Asset Purchase Agreement that Buyer is
entitled to approve or to be satisfied, including, without
limitation, all schedules and exhibits hereto and all items that
Buyer reviews pursuant to its Due Diligence efforts.
7.4.3. No suit, action, arbitration or legal,
administrative or other proceeding or governmental investigation
shall be pending or threatened against Buyer or Seller in
relation to or affecting the consummation of the transactions
contemplated by this Asset Purchase Agreement.
7.4.4. Each of the representations and warranties of
Seller is true as of the Closing.
7.4.5. The Assets have not been damaged and there
has been no adverse change from the date of this Asset Purchase
Agreement.
7.4.6. Buyer has not exercised any of the
cancellation options under Section 9 below.
7.5. Conditions to Seller's Obligations. Seller's
obligation to consummate the transactions contemplated by this
Asset Purchase Agreement is conditioned upon satisfaction, or
waiver by Seller in writing, of all of the following on or before
the Closing Date:
7.5.1. The performance by Buyer of all of Buyer's
promises and agreements under this Asset Purchase Agreement that
are to be performed as of Closing.
7.5.2. Seller's reasonable approval or satisfaction
of each item under this Asset Purchase Agreement regarding which
Seller is entitled to approve or to be satisfied.
7.5.3. No suit, action, arbitration or legal,
administrative or other proceeding or governmental investigation
shall be pending or threatened against Buyer or Seller in
relation to or affecting the consummation of the transactions
contemplated by this Asset Purchase Agreement.
7.5.4. Each of the representations and warranties of
Buyer is true as of the Closing.
8. INDEMNIFICATION
8.1. Seller's Indemnity. Seller shall indemnify, defend and
hold Buyer, its affiliates, and their directors, officers,
employees, attorneys, and agents harmless from and against any
and all liabilities, losses, damages, claims, causes of action,
costs and expenses (including, without limitation, reasonable
attorneys' fees), whether known or unknown, arising out of or
relating to (i) Seller's ownership or operation of the Assets or
the Practice, including any defects in title; (ii) any other
actions or omissions of Seller prior to the Closing Date; or
(iii) any breach by Seller of any representation, warranty or any
other material term or condition in this Asset Purchase Agreement
(including the exhibits and attachments) or any ancillary
agreement, document, or certificate to be delivered in connection
with this Asset Purchase Agreement.
8.2. Buyer's Indemnity. Buyer shall indemnify, defend and
hold Seller harmless from and against any and all liabilities,
losses, damages, claims, causes of action, costs and expenses
(including, without limitation, reasonable attorneys' fees),
arising out of or relating to any breach of any warranty or any
other material term or condition hereof by Buyer.
8.3. Buyer's Recoupment and Offset Rights. In addition to
Buyer's rights under Section 8.1 to seek indemnity from Seller,
Buyer shall have the rights of recoupment and offset against any
payments owed to Seller by Buyer or any of Buyer's Affiliates
under any agreement. Such recoupment and offset rights are in
addition to, and not in derogation of, any statutory, equitable,
common law, or other remedy.
9. BUYER'S CANCELLATION OF ASSET PURCHASE AGREEMENT
9.1. Jeopardy. In the event the performance by any party
hereto of any term, covenant, condition or provision of this
Asset Purchase Agreement should jeopardize (i) the participation
of Buyer or Seller in any reimbursement or payment program or
(ii) if for any other reason said performance should be in
violation of any statute, ordinance, or be otherwise deemed
illegal, or be deemed unethical by any recognized California or
federal judicial body or California or federal governmental
agency (collectively, "Jeopardy Event"), then the parties shall
use their best efforts to meet forthwith and attempt to negotiate
an amendment to this Asset Purchase Agreement to remove or negate
the effect of the Jeopardy Event. In the event the parties are
unable to negotiate such an amendment within fifteen (15) days
following written notice by either party of the Jeopardy Event,
then Buyer may cancel this Asset Purchase Agreement prior to the
Closing immediately upon written notice.
9.2. Due Diligence. In the event Buyer is dissatisfied with
any item or information discovered as a result of Due Diligence
or that is contained in any exhibit or schedule hereto, and
Seller is unable to satisfy Buyer's concern(s) on or before the
Closing Date, then Buyer may cancel this Asset Purchase Agreement
immediately upon notice.
9.3. Exercise of Cancellation Options. In the event Buyer
exercises any of the cancellation options described above, it
shall so notify Seller in writing and each party shall return
forthwith all originals and copies of any financial or other
records, instruments, or other documents it has received from the
other party and, except as provided in this Asset Purchase
Agreement, all of the parties' respective rights and obligations
hereunder shall terminate immediately. Notwithstanding the
foregoing, the parties' respective obligations under Section 6
above shall survive Buyer's exercise of any of said cancellation
options.
10. MISCELLANEOUS
10.1. Risk of Loss. Until the Closing, Seller shall
bear all risk of loss, damage or destruction to the Assets.
10.2. No Third Party Beneficiaries. The parties intend
that the benefits of this Asset Purchase Agreement shall inure
only to Buyer and Seller except as expressly so stated herein.
Notwithstanding anything contained herein, or any conduct or
course of conduct by any party hereto, before or after signing
this Asset Purchase Agreement, this Asset Purchase Agreement
shall not be construed as creating any right, claim or cause of
action against Buyer or Seller by any other person or entity.
10.3. Entire Agreement. This Asset Purchase Agreement,
together with all exhibits and schedules hereto, and all
documents referred to herein (including without limitation any
ancillary agreements), constitutes the entire agreement between
the parties with respect to the subject matter hereof, supersedes
all other and prior agreements on the same subject, whether
written or oral, and contains all of the covenants and agreements
between the parties with respect to the subject matter hereof.
Each party to this Asset Purchase Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, have been made by the other party(ies), or by anyone
acting on behalf of any party, that are not embodied herein, and
that no other agreement, statement, or promise not contained in
this Asset Purchase Agreement shall be valid or binding.
10.4. Successors and Assigns. This Asset Purchase
Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective heirs (as applicable), legal
representatives, and permitted successors and assigns. No party
may assign this Asset Purchase Agreement or the rights, interests
or obligations hereunder. Any assignment or delegation in
contravention of this Section shall be null and void.
10.5. Counterparts. This Asset Purchase Agreement, and
any amendments hereto, may be executed in counterparts, each of
which shall constitute an original document, but which together
shall constitute one and the same instrument.
10.6. Headings. The section headings contained in this
Asset Purchase Agreement are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this
Asset Purchase Agreement.
10.7. Notices. Any notices required or permitted to be
given hereunder by any party to the other shall be in writing and
shall be deemed delivered upon personal delivery; twenty-four
(24) hours following deposit with a courier for overnight
delivery; or seventy-two (72) hours following deposit in the U.S.
Mail, registered or certified mail, postage prepaid, return-
receipt requested, addressed to the parties at the following
addresses or to such other addresses as the parties may specify
in writing:
If to Seller: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Buyer: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Omega Orthodontics of Reseda, Inc.
c/o Omega Orthodontics, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
10.8. Governing Law. This Asset Purchase Agreement
shall be governed by and construed in accordance with the laws of
the State of California.
10.9. Amendment. This Asset Purchase Agreement may be
amended at any time by agreement of the parties, provided that
any amendment shall be in writing and executed by all parties.
10.10. Severability. If any provision of this Asset
Purchase Agreement is held by a court of competent jurisdiction
to be invalid or unenforceable, the remaining provisions will
nevertheless continue in full force and effect, unless such
invalidity or unenforceability would defeat an essential business
purpose of this Asset Purchase Agreement.
10.11. Fees and Expenses. Except as otherwise explicitly
set forth otherwise in writing signed by the parties, each of
Seller and Buyer agrees to bear its own expenses including,
without limitation, attorneys' and accountants' fees in
connection with the preparation of this Asset Purchase Agreement
and the transactions contemplated hereby.
10.12. Exhibits and Schedules. All exhibits and schedules
attached to this Asset Purchase Agreement are incorporated herein
by this reference and all references herein to "Asset Purchase
Agreement" shall mean this Asset Purchase Agreement together with
all such exhibits and schedules, and all ancillary agreements to
be delivered at Closing.
10.13. Survival of Indemnities, Representations and
Warranties. Except as expressly stated to the contrary herein,
the indemnities, representations and warranties of Buyer and
Seller contained in this Asset Purchase Agreement or in any
certificate or document delivered pursuant to the provisions
hereof shall survive the Closing.
10.14. Time of Essence. Time is expressly made of the
essence of this Asset Purchase Agreement and each and every
provision hereof of which time of performance is a factor.
10.15. Grievances and Arbitration. Except as specifically
stated elsewhere in this Agreement, any controversy or claim
arising out of this Asset Purchase Agreement shall be settled by
arbitration in Los Angeles, California in accordance with the
Commercial Rules of the American Arbitration Association then
existing, and judgment on the arbitration award may be entered in
any court having jurisdiction over the subject matter of the
controversy. All disputes shall be settled by a panel of not
less than three (3) arbitrators chosen from any one or more
offices of the American Arbitration Association.
10.16. Specific Performance. The Seller acknowledges and
agrees with Buyer that in the event Seller terminates this Asset
Purchase Agreement or otherwise fails to close, Buyer would be
irreparably damaged thereby and that monetary damages would not
provide an adequate remedy. Accordingly, it is agreed that, in
addition to any other remedies that Buyer may have at law or in
equity, the Buyer shall be entitled to specific performance and
injunctive relief to prevent such a breach and specifically to
enforce the terms and provisions hereof in any action instituted
in a court of competent jurisdiction.
10.17. Attorneys' Fees. Should either Buyer or Seller
institute any action or procedure to enforce this Asset Purchase
Agreement or any provision hereof, or for damages by reason of
any alleged breach of this Asset Purchase Agreement or of any
provision hereof, or for a declaration of rights hereunder
including without limitation arbitration, the prevailing party in
any such action or proceeding shall be entitled to receive from
the other party all costs and expenses, including without
limitation reasonable attorneys' fees, incurred by the prevailing
party in connection with such action or proceeding.
10.18. Construction. The parties have participated jointly
in the negotiation and drafting of this Asset Purchase Agreement
and in the event of any ambiguity or question of intent or
interpretation, no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of
any of the provisions of this Asset Purchase Agreement.
10.19. Further Assurances. The parties shall take such
actions and execute and deliver such further documentation as may
reasonably be required in order to give effect to the
transactions contemplated by this Asset Purchase Agreement and
the intentions of the parties hereto.
IN WITNESS WHEREOF, the undersigned have executed this Asset
Purchase Agreement as of the date first written above.
"BUYER"
OMEGA ORTHODONTICS OF RESEDA, INC.,
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
"SELLER"
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., President
LIST OF EXHIBITS
EXHIBIT
1.1(a) Assets
1.1(b) Assumed Contracts
1.2 Excluded Assets
2.1 Assumed Liabilities
3.2 Allocation of Purchase Price
3.3 Payment
4 Disclosure Schedule
7.2.1 Form of ▇▇▇▇ of Sale
EXHIBIT 1.1(a)
ASSETS
1. All contracts and agreements which Buyer determines in
its sole discretion to assume as itemized on Exhibit 1.1(b).
2. All accounts receivable of Seller ("Accounts
Receivable") on the close of business on the Closing Date. As
used herein, "Accounts Receivable" shall include all rights to
payment for goods or services rendered, whether or not yet earned
by performance, all other obligations and receivables from others
no matter how evidenced relating to the Practice, including
purchase orders, notes, instruments, drafts and acceptances and
all guarantees of the foregoing and security therefor, relating
to the Practice.
3. Seller's furniture, fixtures, leasehold improvements,
machinery, equipment, inventories, supplies and other tangible
personal property used in the Practice listed on Schedule 1
attached hereto.
4. Seller's right to reimbursement for all professional
services provided to managed care and fee-for-service patients.
Schedule 1
To Exhibit 1.1(a)
FURNITURE, FIXTURES, ETC.
1. Television
2. Computer:
a. Monitors (2)
b. Keyboards
c. Laser printer
d. Hard drive
3. Refrigerators (2)
4. Scale & postage meter (leased)
5. Copy machine
6. Dentronix sterilizer
7. Ultra Sonic cleaner
8. Electronic mixing bowl
9. Wax heater
10. Telephone system
11. Lathe
12. Lathe accessories
13. Welder
14. Model ▇▇▇▇▇▇
15. Vibrator
16. Sta Vac Vacuum former
17. 5 chairs:
a. Chair controls and fountains
b. Over chair tables
18. 4 ▇▇▇▇▇▇ ▇▇▇▇▇ lights, 1 Halogen over chair - ▇▇▇▇▇ ▇▇▇▇▇
light
19. Lab pliers
20. 2 Dremels
21. Stereo system
22. Typewriter
23. Paper cutter
24. Cotton roll holders
25. Mobile cart
26. Trash cans
27. Study model boxes
28. Reception room furniture:
a. 3 sofas
b. 3 lamps
c. 1 table
d. 2 pictures
29. 4 Operatory chairs
30. 4 desk chairs
31. 1 Lab chair
32. Lab supplies:
a. Solder
b. Wire
c. Acrylic
33. Operatory supplies:
a. Brackets = 1,200 Bands = 500
b. Wires
c. Cotton rolls
d. Facemasks & Headgear
34. Miscellaneous hand instruments:
a. Mirrors
b. Scalers - etc.
c. Pliers 140
35. Office supplies & small tools:
a. Paper hole punch
b. Toothbrushes
c. Staplers
d. Solder
e. Elastics
f. Wax
g. Fluid
EXHIBIT 1.1(b)
ASSUMED CONTRACTS
1. Contract for postal machine (ie, ▇▇▇▇▇▇-▇▇▇▇▇)
2. Office lease relating to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT 1.2
EXCLUDED ASSETS
1. All right, title and interest of Seller in all
agreements, contracts, leases, loans, security agreements and any
other agreements of any nature whatsoever except as otherwise
specifically set forth herein on Exhibit 1.1(b), Assumed
Contracts.
2. All employee pension and profit sharing plans and
funds, deferred compensation and similar fringe or employee
benefit plans or programs, any disability or other employee
insurance plans, any employment and executive compensation
agreements, bonus and stock option plans, and any funds or
property held in trust for employees.
3. All cash, bank balances, monies in possession of any
bank, other cash items and marketable securities of Seller.
4. Ownership of all trademarks, trade names, copyrights,
logos, licenses, ownership interests in telephone numbers at
Practice, or related items of Seller that in any way pertain to
the Practice.
5. All patient records, files and X-rays.
6. All of Seller's goodwill, which may include location
goodwill, name recognition goodwill, patient allegiance, etc.
7. All business, financial and accounting records and
books of account of Seller relating to the Practice exclusive of
Seller's general ledger.
8. A license to use (but not to own) all trademarks, trade
names, copyrights, logos, licenses, ownership interests in
telephone numbers at Practice, or related items of Seller that in
any way pertain to the Practice.
EXHIBIT 2.1
ASSUMED LIABILITIES
1. Those Assumed contracts set forth in Exhibit 1.1(b),
provided, however, that with respect to the Office Lease
described in item 2 of said Exhibit, liability is assumed by
Buyer only from and after the closing date and any rent due for
the month in which the closing occurs shall be allocated on a pro
rata basis between Buyer and Seller.
EXHIBIT 3.2
ALLOCATION OF PURCHASE PRICE
Assets
Contracts and Agreements
Accounts Receivable
Furniture, Fixtures, Equipment and other Tangible Assets
Trademarks, Trade Names, Copyrights, Logos, Telephone
Numbers and Certain Licenses
Reimbursement Rights
EXHIBIT 3.3
PAYMENT
Buyer shall pay Seller on the Closing Date Twenty-Five Thousand
Dollars ($25,000) in cash, payable to Seller by way of cashier's
check or wire transfer of immediately available funds into a
deposit account designated in writing by Seller prior to the
Closing Date.
EXHIBIT 4
DISCLOSURE SCHEDULE
[The Disclosure Schedule is to be arranged in sections
corresponding to the numbered and lettered sections contained in
Section 4.]
Not Applicable.
EXHIBIT 7.2.1
FORM OF ▇▇▇▇ OF SALE
▇▇▇▇ OF SALE
FOR VALUABLE CONSIDERATION, the receipt and adequacy of
which are hereby acknowledged, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., Inc.,
a California professional dental corporation ("Seller"), hereby
sells and assigns to Omega Orthodontics of Reseda, Inc., a
Delaware corporation ("Buyer"), and its successors and assigns,
to have and to hold forever, one hundred percent (100%) of all of
the right, title and interest of Seller in every item of property
that is listed in Exhibit 1.1(a) to the Agreement for the
Purchase and Sale of Assets, made and entered into as of January
7, 1998, by and between Buyer and Seller (the "Asset Purchase
Agreement").
In addition, Seller hereby sells and assigns to Buyer
one hundred percent (100%) of all of Seller's right, title and
interest in the contracts and agreements which are listed in
Exhibit 1.1(b) to the Asset Purchase Agreement and Buyer hereby
accepts such assignment and assumes and agrees to be bound by and
to perform one hundred percent (100%) of all of the duties and
obligations of Seller thereunder.
Buyer and Seller will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and
delivered, each and all of such further acts, deeds, assignments,
transfers, conveyances, powers of attorney and assurances as may
reasonably be required by Buyer to sell and assign to Buyer, its
successors and assigns, title to the assets sold and assigned by
this ▇▇▇▇ of Sale.
IN WITNESS WHEREOF, Seller and Buyer have executed this
▇▇▇▇ of Sale for delivery as of the 7th day of January, 1998.
Seller: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., Inc.,
a California professional dental corporation
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
Buyer: Omega Orthodontics of Reseda,
Inc.,
a Delaware corporation
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
