1
EXHIBIT 2.2
AMENDED AND RESTATED
FORM OF
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of this ___ day of _____________, ______, by and between
Premier Orthodontic Group, Inc., a Delaware corporation, and its successors and
assigns (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 an orthodontic practice with offices
located in the facilities identified in Exhibit "A" (collectively, the
"Center") and furnishes orthodontic and other dental care to the general public
through the services of the orthodontist(s) and dentist(s) affiliated with the
Seller to provide patient care at the Center (the "Orthodontist(s)");
WHEREAS, Seller wishes to sell all of its right, title and interest in
and to all of the assets used in connection with the orthodontic practice
conducted at the Center (except for the right to employ the Orthodontist(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; and
WHEREAS, Seller and Purchaser intend that the sale contemplated
hereunder, along with (i) the acquisition of the other founding practices, (ii)
the merger between Purchaser and US Orthodontic Care, Inc. ("USOC"), and (iii)
the initial public offering, will constitute an integrated unitary transaction
and will qualify for non-recognition treatment under Section 351 of the
Internal Revenue Code.
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 that certain
facility comprising the Center, and all dental and other equipment or
furniture leased by Seller (the "Leasehold Interest"); provided,
however, that (i) Seller shall have the option of excluding from the
conveyance contemplated hereby
2
Seller's leasehold interest in such dental and other equipment
(including any leased automobiles) or furniture and (ii) in the event
that any Leasehold Interests in and to dental and other equipment and
furniture leased by Seller are not assignable, such Leasehold
Interest(s) shall not be assigned to Purchaser; provided, further,
that any leasehold expense incurred by Seller on Leasehold Interests
retained by Seller shall be considered a Center Expense (as defined in
that certain Service Agreement dated of even date herewith by and
between Seller and Purchaser) for the purpose of determining the
Service Fee to be paid to Purchaser only to the extent that any
provisions in the operative lease documents or instruments, including
but not limited to lease expense and term, are reasonable and
customary and do not exceed the fair market rent for the leased dental
and other equipment (including any leased automobiles) or furniture.
Any Leasehold Interests to be retained by Seller or which are
nonassignable shall be identified by Seller at Closing (as hereinafter
defined) to Purchaser's satisfaction.
(b) All of Seller's licenses, permits, equipment, tools,
furniture, furnishings, fixtures, inventory, supplies, technology,
prepaid items, ▇▇▇▇▇ cash, accounts receivable, 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 the Center as a going concern and with
the operation of the Center located thereon, reasonably required to
operate a licensed and certified orthodontic practice in _________
_____________, 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").
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 or from time to 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 hereby 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, but in no event later than October 15,
1997, at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P., First Union
Plaza, Suite 1400, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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
3
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 hereby agrees to pay to Seller for
the Assets of the Center at least one hundred twenty percent (120%) of the
Center's 1996 Adjusted Gross Revenues (as hereinafter defined), with the actual
amount to be determined upon completion of an initial public offering of
Purchaser's common stock (the "IPO") (as finally determined, the "Purchase
Price"), which final Purchase Price shall be the Seller's proportional interest
in the sum of the value of all of the orthodontic entities included in the IPO,
which sum shall constitute 62% of the total market capitalization of Purchaser
without giving effect to the IPO. The valuation for determining the final
Purchase Price of each orthodontic entity included in the IPO shall be based on
the adjusted gross revenues and operating results of each such orthodontic
entity for the trailing twelve-month period used in preparation of Purchaser's
registration statement on Form S-1 with respect to the IPO. The Purchase Price
shall be paid as follows:
(a) Up to a maximum of 20% of the Purchase Price shall be
paid in cash or immediately available funds at Closing; and
(b) The remainder of the Purchase Price to be paid to
Seller in stock of Purchaser to be valued at the time of the IPO,
which IPO shall occur simultaneously with the Closing.
As used herein, the term "1996 Adjusted Gross Revenue" shall be determined in
accordance with generally accepted accounting principles and shall mean all
fees and charges recorded or booked in fiscal year 1996 by or on behalf of the
Seller as a result of professional orthodontic services personally furnished to
patients by the Orthodontist(s) and those under the Orthodontist's supervision
and other fees or income generated in their capacity as professionals after any
adjustments for uncollectible accounts, professional courtesies and other
activities that do not generate a collectible fee.
2.02 COSTS AND EXPENSES. Each party to this Agreement shall pay
its fees, costs and expenses and those of its agents, accountants, lawyers and
investment advisors, whether or not the transactions contemplated hereby are
consummated in accordance with the terms of this Agreement.
SECTION 3. 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,
3
4
delivery and performance of this Agreement, notwithstanding any investigation
made by Purchaser or on its behalf:
3.01 ORGANIZATION OF SELLER. Seller is a professional association
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.
3.02 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 (as hereinafter defined), and upon transfer of the
Assets at the Center to Purchaser, Purchaser will hold good and marketable
title to the Assets at the Center free and clear of all liens, claims,
encumbrances, and rights of third parties whatsoever, except for the Permitted
Exceptions.
3.03 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 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.
3.04 NO CONFLICTS. The execution, delivery and performance by the
Seller of this Agreement or any agreements required hereby to be executed by
Seller, 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 Center pursuant to the provisions of any of the foregoing.
3.05 CONDITION OF ASSETS. Upon Closing, the Assets at the Center,
including the Personal Property, will be in good condition comparable to the
condition existing on the date of this Agreement, ordinary wear and tear
excepted. 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 this transaction. Seller shall keep
all insurance policies or renewals thereof affecting or covering the Center 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
5
3.06 TAXES. Except as set forth on Exhibit "C", 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.
3.07 CLAIMS AND LEGAL ACTIONS. Except as set forth on Exhibit "C",
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, or the business or operations of the Seller, nor does
Seller know or have reason to be aware of any basis for the same.
3.08 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 (i) except in the usual and ordinary
course of business of Seller consistent with past practice, incur any
indebtedness or other liabilities, guarantee any indebtedness or sell any
assets of the Center, or (ii) increase the compensation payable to any
employee, stockholder, member or doctor 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.
3.09 CONSENTS. Except as set forth on Exhibit "C", 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.
3.10 NO MANAGEMENT CONTRACT OR LEASE. Except for any lease
agreement(s) between Seller and Seller's landlord(s), which lease agreement(s)
shall 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 management contracts or leases for the Center at the
time of Closing.
5
6
3.11 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.
3.12 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.
3.13 BULK SALES. Seller shall comply with any and all applicable
bulk sales laws.
3.14 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
consummation of the transactions contemplated by this Agreement for the period
of three (3) years.
SECTION 4. 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:
4.01 ORGANIZATION OF PURCHASER. Purchaser is a corporation
organized and in existence under the laws of the State of Delaware 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.
4.02 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.
4.03 NO VIOLATION. The execution, delivery and performance by the
Purchaser of this Agreement or any agreements required hereby to be executed by
6
7
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.
4.04 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 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.
4.05 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.
4.06 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
warranties and representations of the Purchaser contained in this Agreement
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.
4.07 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. In the event Purchaser withdraws or abandons the
registration statement for the IPO prior to October 15, 1997, then Purchaser
shall immediately notify Seller in writing within five (5) business days of
such abandonment or withdrawal.
SECTION 5. CONVEYANCES.
At Closing, the Personal Property shall be conveyed by general
assignment and ▇▇▇▇ of sale. The Leasehold Interest shall be assigned to
Purchaser pursuant to assignment agreements. In advance of the Closing Date,
appropriate forms of such ▇▇▇▇ 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
7
8
at the Center including 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 "D" attached hereto and by reference
made a part hereof (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 6. 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 by
Purchaser:
6.01 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.
6.02 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) ▇▇▇▇ OF SALE. A General Assignment and ▇▇▇▇ of Sale
for all of Seller's right, title and interest in and to the Personal
Property and fixtures located in the Center, including those items
described in Exhibit "B" attached hereto and by this reference made a
part hereof;
(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
8
9
provided for herein, and the accuracy of Seller's representations, and
warranties and covenants contained herein.
6.03 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 a
certified resolution approving the execution of this Agreement and the
transactions contemplated hereby.
6.04 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.
6.05 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.
6.06 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 and 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.
6.07 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 good faith judgment of the
Purchaser has had, or will have a materially adverse effect on the Center or
the Center's business.
6.08 PUBLIC OFFERING OR FIRM UNDERWRITING. Purchaser shall have
completed a public offering for the sale of at least $10,000,000 of the stock
of Purchaser.
6.09 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
9
10
would adversely affect the carrying on of its business in the normal and
regular course.
6.10 ACCOUNTING TREATMENT. Purchaser shall have received approval
from its auditors and an indication of no objection from the Securities and
Exchange Commission ("SEC") as to Purchaser's and the Center's, along with
other orthodontic practices, "roll-up" accounting treatment, on terms
acceptable to Purchaser.
6.11 EMPLOYMENT AGREEMENT. Seller shall enter into a five (5) year
employment agreement with any Orthodontist(s) who have an equity interest in
Seller or deliver patient care at the Center(s) on average more than ten (10)
days per month the Center(s), as employee(s) to the Center(s) after the
consummation of the transactions contemplated hereby, which employment
agreements shall contain a non-competition agreement with respect to Purchaser.
SECTION 7. 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:
7.01 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.
7.02 DELIVERY OF THE PURCHASE PRICE. Purchaser shall have
delivered to Seller the Purchase Price, as described in Section 2.01.
7.03 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.
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.
10
11
7.05 INITIAL PUBLIC OFFERING. Purchaser shall have completed the
IPO on or before October 15, 1997.
SECTION 8. 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 ▇▇▇▇ due date;
(b) Charges for electricity, gas, water and sewer and other
utilities to be based on projections from most recent invoices
or on recent meter readings; and
(c) Such other items as may be agreed upon by Seller and
Purchaser.
SECTION 9. FEDERAL SECURITIES LAWS.
9.01 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.
9.02 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:
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
11
12
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.
9.03 INVESTMENT RISK. Seller is able to bear the economic risk of
an investment in Purchaser 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 Seller represents and
warrants 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 stock. Seller or their
representatives have had an adequate opportunity to ask questions and receive
answers from Purchaser concerning any and all matters relating to Purchaser and
the transaction described herein.
9.04 ACCREDITED INVESTOR STATUS. Seller represents and warrants
that Seller is an "accredited investor" as defined in Rule 501(a) under the
▇▇▇▇ ▇▇▇.
9.05 PIGGYBACK REGISTRATION RIGHTS. Purchaser has no obligation to
register the shares of Purchaser stock that Seller will receive under this
Agreement. Provided, however, in the event Purchaser, at any time within 24
months after the Closing, contemplates and 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 but not limited to 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, but not limited
to, 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 9.05 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 herein specified in writing within thirty (30)
days after the aforesaid written notice to the Seller by Purchaser."
12
13
SECTION 10. BROKERS.
Seller shall pay any real estate broker(s) or finder(s) 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 any real estate broker(s) or finder(s) 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 11. ASSUMED LIABILITIES.
Except as specifically provided in this Agreement, 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 12. TERMINATION.
12.01 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 3 and 6 of this Agreement shall not have been
satisfied or waived by the Closing.
(c) By the Seller in the event that the conditions set
forth in Sections 4 and 7 of this Agreement shall not have been
satisfied or waived by the Closing.
(d) By either party upon written notice after October 15,
1997.
(e) By the Seller upon receipt of the Purchaser's notice
of withdrawal or abandonment of the registration statement for the IPO
by October 15, 1997 referred to in Section 4.07 hereof.
12.02 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 14 of this Agreement.
12.03 EFFECT OF TERMINATION. In the event that this Agreement is
terminated pursuant to this Section 12, 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).
13
14
SECTION 13. 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.
SECTION 14. 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 a regularly-maintained receptacle for United States mail, or on
the first business day following the date on which sent by overnight delivery:
If to Purchaser:
Premier Orthodontic Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P.
First Union Plaza, Suite 1400
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller:
______________________________
______________________________
______________________________
______________________________
Telephone: __________________
Telecopier: __________________
14
15
SECTION 15. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
SECTION 16. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of _____________ without regard for its
principles of conflicts of laws.
SECTION 17. ASSIGNABILITY.
This Agreement shall not be assignable by the Seller without the prior
written consent of the Purchaser. This Agreement shall be assignable by
Purchaser to (i) any person, firm or corporation that controls or is under
common control with Purchaser, (ii) USOC or any person, firm or corporation
that controls or is under common control with USOC, or (iii) any entity that
results from a merger or other combination between Purchaser and USOC ("Newco")
and any person, firm or corporation that controls or is under common control
with Newco.
SECTION 18. 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 19. 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 20. ENTIRE AGREEMENT.
15
16
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 21. 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.
SECTION 22. EXHIBITS.
The parties shall have until Closing to agree upon all information to
be filed as a part of the Exhibits to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set forth above.
SELLER:
---------------------------------
By:
------------------------------
Name:
Title:
------------------------
PURCHASER:
PREMIER ORTHODONTIC GROUP, INC.
By:
------------------------------
Name:
------------------------
Title:
------------------------
16
17
SCHEDULE 2.2
OrthAlliance has succeeded to the rights to purchase and sale agreements
substantially identical to Exhibit 2.2 as follows:
1. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
2. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, D.D.S.
3. Purchase and Sale Agreement with ▇▇▇▇▇ ▇. Caves, D.M.D., P.C.
4. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, D.D.S., P.A.
5. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, D.M.D., M.S.D.,
P.S.C.
6. Purchase and Sale Agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., D.D.S., P.A.
7. Purchase and Sale Agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., D.D.S.
8. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, D.D.S.
9. Purchase and Sale Agreement with ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, D.D.S., M.S., P.C.
10. Purchase and Sale Agreement with ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., D.D.S., P.A.
11. Purchase and Sale Agreement with ▇▇▇▇ ▇. ▇▇▇▇▇, D.D.S.
12. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., M.S., A
Professional Corporation.
13. Purchase and Sale Agreement with ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., D.D.S., P.A.
14. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, D.D.S.
15. Purchase and Sale Agreement with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, D.D.S., M.S., Ltd.
16. Purchase and Sale Agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., D.D.S., P.A.
17. Purchase and Sale Agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇, D.D.S., P.A.
18. Purchase and Sale Agreement with ▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., M.S.D., Inc.
19. Purchase and Sale Agreement with ▇▇▇▇▇▇ ▇. ▇▇▇, DDS, P.A.
20. Purchase and Sale Agreement with ▇▇▇▇ ▇▇▇▇▇▇▇▇, D.D.S., Inc.
21. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, D.M.D., P.A.
22. Purchase and Sale Agreement with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, D.D.S.
23. Purchase and Sale Agreement with ▇.▇. ▇▇▇▇▇▇▇, D.M.D., M.S.D., P.C.
18
24. Purchase and Sale Agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, D.D.S., a
Professional Corp.
25. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, D.D.S., P.A.
26. Purchase and Sale Agreement with A. ▇▇▇▇ ▇▇▇▇▇▇▇, D.D.S., P.C.
27. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, D.D.S., P.C.
28. Purchase and Sale Agreement with ▇.▇. ▇▇▇▇▇, D.M.D., P.A.
29. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, D.D.S., Inc.
30. Purchase and Sale Agreement with ▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
31. Purchase and Sale Agreement with ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., P.C.
32. Purchase and Sale Agreement with ▇▇▇▇▇▇▇ Orthodontic Center, P.A.
33. Purchase and Sale Agreement with Baron ▇. ▇▇▇▇▇▇▇▇, D.D.S., M.S., P.C.
