STOCK PUT/CALL OPTION AND SUCCESSOR DESIGNATION AGREEMENT
This Stock Put/Call Option and Successor Designation Agreement (the
"Agreement") is made effective as of this 1st day of August, 1998 by and among
Xxxxxx X. Xxxx, P.C. a professional corporation (the "New PC") incorporated
under the laws of the State of Oregon (the "State"); Xxxxxx X. Xxxx, D.D.S.,
M.S. ("Xx. Xxxx") who is duly licensed to practice endodontics in the State;
Omega Orthodontics, Inc., a Delaware corporation ("OMEGA"); and Omega
Orthodontics of Woodland Hills, Inc., a Delaware corporation (the "MSO"), which
is a wholly-owned subsidiary of OMEGA, with reference to the following facts.
RECITALS
A. OMEGA is an orthodontic and other dental specialty practice
management company and has expertise in managing orthodontic and other dental
specialty practices including practice management systems, office space,
equipment, furnishings and active administrative personnel necessary for the
operation of such practices and providing high quality healthcare management
services to such practices, directly or indirectly through management service
organizations such as the MSO.
B. OMEGA acquired certain assets of Xx. Xxxx pursuant to that certain
Affiliation Agreement and Asset Purchase Agreement (the "Affiliation Agreement")
dated as of May 1, 1998 by and between OMEGA and Xx. Xxxx.
C. The New PC owns and operates an endodontic practice with offices
located in the facility identified in Exhibit A (the "Endodontic Offices") and
furnishes endodontic care to the general public through the services of Xx. Xxxx
affiliated with the New PC.
D. The New PC and the MSO have entered into that certain Management
Services Agreement (the "Management Services Agreement") dated as of even date
herewith for the management by the MSO of the non-endodontic business affairs of
the New PC.
E. Xx. Xxxx owns all of the capital stock (the "Capital Stock") of the
New PC and desires to provide for successor ownership upon the occurrence of
certain events. When used in this Agreement, the term "Capital Stock" shall mean
all of Xx. Xxxx'x right, title, interest and estate in and to all of the issued
and outstanding stock in the New PC, including any stock hereafter issued and
any rights to any additional stock and any preemptive rights, warrants and
instruments of like effect, as set forth on Exhibit B.
F. As a condition of entering into the Management Services Agreement,
Xx. Xxxx has agreed to grant to the MSO, and the MSO desires to acquire from Xx.
Xxxx certain rights, including but not limited to, the right to designate the
successor purchaser (the "Designated Successor") of all or any part of the
issued and outstanding Capital Stock upon the occurrence of certain events. In
addition, under the Management Services Agreement, upon termination thereof,
each of the New PC and the MSO were granted certain rights to be set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the New PC, Xx.
Xxxx, the MSO and OMEGA agree as follows:
1. Defined Terms. The capitalized words and expressions used in this
Agreement, but which are not defined herein shall, unless the context otherwise
requires, have the same meaning as they are given in the Management Services
Agreement.
2. Put Option. The MSO shall have the option (the "Put Option") to
require the New PC, upon termination of the Management Services Agreement by the
MSO under Section 10.2 thereof or upon expiration of the Term of the Management
Services Agreement, to:
(a) Purchase from the MSO at the greater of the fair market
value or the book value all of the leasehold improvements, fixtures,
furniture, furnishings and equipment comprising or located at the
Endodontic Offices, including all replacements and additions thereto
made by the MSO pursuant to the performance of its obligations under
the Management Services Agreement and all other assets, including
inventory and supplies and intangibles, set forth on the balance sheet
as at the end of the month immediately preceding the date of such
termination or expiration prepared in accordance with GAAP (the
"Balance Sheet") to reflect operations of the MSO in respect of the
Endodontic Offices, including depreciation, amortization and other
adjustments of such assets shown on such Balance Sheet; and
(b) Purchase, by obtaining an assignment from the MSO, at the
greater of the fair market value or book value, the right to receive
payments for breach of the restrictive covenants provided for in
Section 3.7 of the Management Services Agreement and in the applicable
Employment Agreement with Xx. Xxxx contemplated thereunder, and any
goodwill and other intangible assets set forth on the Balance Sheet,
reflecting amortization or depreciation of the restrictive covenants,
and any goodwill and other intangible assets; and
(c) Assume all debt and all contracts, payables and leases
which are obligations of the MSO and which relate solely to the
performance of its obligations under the Management Services Agreement
or the properties subleased in respect of the Endodontic Offices.
If the MSO desires to exercise its Put Option, the MSO shall give written notice
of such election to the New PC and Xx. Xxxx at least twenty (20) calendar days
prior to the date specified in such notice as the date for the closing of the
Put Option. Any exercise of the Put Option by the MSO shall be made by an
aggregate payment of the amounts computed under Clauses (a) and (b) of this
Section 2 (collectively, the "Put Price"). It is understood and agreed that Xx.
Xxxx will continue to be bound by the terms of the non-competition agreement
attached hereto as Exhibit C.
Notwithstanding the foregoing, in the event of Xx. Xxxx, neither Omega nor the
MSO shall be entitled to exercise the Put Option against Xx. Xxxx'x estate.
3. Call Option. The New PC shall have the option (the "Call Option") to
require the MSO, upon termination of the Management Services Agreement by the
New PC under Section 10.1 thereof, to:
(a) Sell to the New PC all of the leasehold improvements,
fixtures, furniture, furnishings and equipment comprising or located at
the Endodontic Offices, including all replacements and additions
thereto made by the MSO pursuant to the performance of its obligations
under the Management Services Agreement and all other assets, including
inventory and supplies and intangibles, set forth on the Balance Sheet
to reflect operations of the MSO in respect of the Endodontic Offices,
including depreciation, amortization and other adjustments of such
assets shown on such Balance Sheet; and
(b) Assign to, or grant a waiver in favor of the New PC, the
restrictive covenants provided for in Section 3.7 of the Management
Services Agreement and in the applicable Employment Agreement with Xx.
Xxxx contemplated thereunder, and any goodwill and other intangible
assets set forth on the Balance Sheet, reflecting amortization or
depreciation of the restrictive covenants, and any goodwill and other
intangible assets, such; and
(c) Assign to the New PC (which it shall assume) all debt and
all contracts, payables and leases which are obligations of the MSO and
which relate solely to the performance of its obligations under the
Management Services Agreement or the properties subleased in respect of
the Endodontic Offices.
If the New PC desires to exercise its Call Option, the New PC shall give written
notice of such election to the MSO at least twenty (20) calendar days prior to
the date specified in such notice as the date for the closing of the Call
Option. Any exercise of the Call Option by the New PC shall be made by an
aggregate payment to the MSO of an amount equal to the lesser of the fair market
value or the amortized book value of the assets, tangible and intangible,
described in Clauses (a) and (b) of this Section 3 (collectively, the "Call
Price"). For purposes of this Section 3, the "fair market value" of such assets
shall be determined by an independent appraiser acceptable to, and appointed by,
the MSO and the New PC. In the event that the MSO and the New PC cannot agree on
an independent appraiser, the fair market value of such assets shall be
determined by three independent appraisers, one of whom shall be appointed by
the MSO, one of whom shall be appointed by the New PC and the third of whom
shall be appointed by mutual agreement of the two appointed appraisers. Within
sixty (60) days after the appointment of the third appraiser, the three
appraisers shall each submit in writing their determination of fair market value
of such assets to each of the MSO and the New PC, and the fair market value of
such assets shall be conclusively determined by taking the numerical average of
the two fair market value determinations which are closest in amount. The cost
of obtaining these appraisals shall be paid one-half by the MSO and one-half by
the New PC.
In addition to the foregoing, If Xx. Xxxx exercises the Call Option prior to the
registration of the Omega Stock held by Xx. Xxxx as a result of the Affiliation
Agreement and Asset Purchase Agreement dated May 1, 1998 by and between the
parties, then Xx. Xxxx may, at his option, tender such stock then held by him to
Omega, at the price it was originally granted to him. The foregoing shall not
apply once such Stock is registered. Further, if Xx. Xxxx exercises the Call
Option within two (2) years of the Effective date of this agreement, then Omega
shall refund to Xx. Xxxx sixty-five (65%) percent of the net management fees
actually received by Omega during the term of the MSO Agreement.
Notwithstanding the foregoing, in the event that the New PC terminates
the Management Services Agreement pursuant to Section 10.1(a)(1) of the
Management Services Agreement and the MSO is not paying the MSO Expenses (as
defined in the Management Services Agreement) as they become due such that the
ability of the New PC to continue to practice endodontics is compromised, the
Call Option may be exercised by the payment by the New PC to the MSO of the sum
of (i) the book value of the assets described in Clause (a) of this Section 3
plus (ii) the book value of the assets described in Clause (b) of this Section
3, less an amount equal to two-thirds (2/3) of the difference between (y) all
management fees paid by the New PC to the MSO pursuant to Schedule 3 of the
Management Services Agreement less (z) the sum of all the MSO Expenses paid by
the MSO under the Management Services Agreement plus the Rebates paid to the New
PC pursuant to Schedule 3 of the Management Services Agreement; provided,
however, that the amount due under clause (ii) of this sentence shall not be
less than zero.
4. Closing and Delivery. At the closing ("Closing") of the exercise by
the MSO of the Put Option under Section 2 or of the exercise by the New PC of
the Call Option under Section 3, as the case may be, the New PC shall pay cash,
or, at the option of the New PC and with the consent of Xx. Xxxx, a combination
of cash, forgiveness of amounts due to Xx. Xxxx under the Purchase Note and/or
return of the shares of Omega Common Stock received by Xx. Xxxx under Section
1.1(a)(iii) of the Affiliation Agreement (the value of such shares to be
determined by multiplying such number of shares by the average of the last sales
(or closing) price for Omega's Common Stock on Nasdaq (or a national securities
exchange) for each of the sixty (60) trading days immediately preceding the date
of the Put Option Notice or the Call Option Notice, as the case may be) for the
repurchased assets, whether the Put Price pursuant to exercise by the MSO of the
Put Option or the Call Price pursuant to exercise by the New PC of the Call
Option, as the case may be. The New PC and Xx. Xxxx shall execute such documents
as may be required by the MSO to assume the liabilities set forth in Section
2(c) or 3(c), as the case may be, and shall use their respective best efforts to
remove the MSO from any liability with respect to such repurchased assets and
with respect to any property leased or subleased by the MSO. From and after any
such Closing, each party shall provide to the other party reasonable access to
books and records then owned by it to permit such requesting party to satisfy
reporting and contractual obligations which may be required of it. In addition,
following any such Closing, the MSO or its designee shall have reasonable access
during normal business hours to the New PCs records, including patient records
regarding records of collections, expenses and disbursements as kept by the MSO
in performing its obligations under the Management Services Agreement, and the
MSO may copy any or all such records.
5. Successor Designation Option.
(a) Upon termination of the Management Services Agreement by the MSO
under Section 10.2 thereof or upon expiration of the Term of the Management
Services Agreement or upon the happening of any of the following events (each of
such termination, expiration or event being hereinafter referred to as a
"Transfer Event"), the MSO shall have the option (the "Designated Successor
Option") to designate a Designated Successor to purchase all or any portion of
the Capital Stock then held by Xx. Xxxx:
(i) the death of Xx. Xxxx;
(ii) if Xx. Xxxx is determined to be permanently disabled so
as to be unable to render any professional services on behalf of the
New PC, as determined in accordance with paragraph (b) of this Section
5 below;
(iii) if Xx. Xxxx voluntarily terminates his employment
without first proposing and obtaining the MSO's approval of a proposed
qualified successor endodontist reasonably acceptable to the MSO on
behalf of the New PC;
(iv) if Xx. Xxxx acts in a criminally or grossly negligent
manner with respect to the performance of professional endodontic
services rendered or to be rendered on behalf of the New PC;
(v) if Xx. Xxxx becomes hospitalized for alcohol or drug
abuse;
(vi) if Xx. Xxxx is convicted of a felony;
(vii) if Xx. Xxxx loses his license or is otherwise determined
to be disqualified from rendering services as an endodontist for the
New PC by the applicable dental or other comparable regulatory board of
the State;
(viii) if Xx. Xxxx'x shares of Capital Stock are or are to be
transferred voluntarily or by operation of law to any person who is a
"disqualified person," as defined in the professional corporation
statute of the Laws of the State;
(ix) if Xx. Xxxx voluntarily files a petition under any
bankruptcy or insolvency law or a petition for the appointment of a
receiver, or makes an assignment for the benefit of creditors;
(x) if Xx. Xxxx is subjected involuntarily to such a petition
or assignment, or any creditor or other persons obtains an attachment
or other legal or equitable interest in any shares of the Capital Stock
of Xx. Xxxx and such involuntary petition, assignment or attachment is
not discharged within sixty (60) days after creation;
(xi) if Xx. Xxxx is required to transfer any shares of Capital
Stock by reason of a judgment, court order or decree or by operation of
law;
(xii) if Xx. Xxxx retires within the meaning of Paragraph (c)
of this Section 5; or
(xiii) if Xx. Xxxx desires to sell more than twenty five (25%)
percent any of his shares of Capital Stock to another endodontist as
contemplated under Section 8 hereof.
(b) For purposes hereof, "permanent disability" means any illness,
injury, disease or condition, whether mental or physical, which, for a
continuous period of ninety (90) days, (i) prevents Xx. Xxxx from performing his
duties competently and adequately as determined by the MSO, or (ii)
substantially impairs the New PC's or Xx. Xxxx'x ability to practice
endodontics.
(c) For purposes hereof, "Retirement" of Xx. Xxxx shall occur on the
date when Xx. Xxxx voluntarily withdraws from the practice of endodontics at
whatever age or for whatever reason and notifies the New PC that he desires to
be regarded as "Retired" and fails to have first proposed and obtained the MSO's
approval of a qualified successor endodontist reasonably acceptable to the MSO.
6. Successor Designation Option Exercise. Except as otherwise provided
herein, upon exercise of the Successor Designation Option, the Designated
Successor may purchase all, but not less than all, of the Capital Stock. The
Successor Designation Option shall also be exercisable by the MSO as provided in
Section 8 below.
7. Exercise Notice. Any exercise of the Successor Designation Option
shall be accompanied by a written notice (the "Successor Designation Exercise
Notice") to Xx. Xxxx (or his successor or representative), specifying the name,
address and information showing the qualifications and suitability of the
Designated Successor to conduct or perform professional services on behalf of
the New PC and number of shares of Capital Stock of Xx. Xxxx as to which the
Successor Designation Option is being exercised. Upon the MSO's exercise of the
Successor Designation Option in respect of any event described in Section
5(a)(iii) or (x) as to all of the shares of Capital Stock of Xx. Xxxx, Xx. Xxxx
shall execute a Non-Competition Agreement in the form attached hereto as Exhibit
C. The MSO may, at any time, cancel any Successor Designation Exercise Notice
sent by it hereunder.
8. Right of First Refusal and Sale of Stock. If Xx. Xxxx desires to
sell any of the Capital Stock to another endodontist (a "Purchaser"), he shall
first give notice to the MSO of his intent to sell such Capital Stock ("Notice
of Sale"), giving to the MSO such information as shall be reasonably requested
by it to ascertain the qualifications and suitability of the Purchaser to
conduct or to perform professional services on behalf of the New PC and the
terms and conditions of such proposed sale to the Purchaser. If the sale of such
Capital Stock represents twenty five (25%) percent or less of the Capital Stock,
then, unless the MSO or OMEGA reasonably believes such Purchaser to be
unacceptable, such transfer shall not constitute a Transfer Event. If such sale
is greater the twenty five (25%) percent of the Capital Stock then upon receipt
of such Notice, the Successor Designation Option of the MSO shall become
exercisable for a period of three (3) months, provided however, that the
exercise price and terms of purchase of the Capital Stock shall be no less
favorable to Xx. Xxxx than those set forth in the Notice of Sale. In the event
the Successor Designation Option is not exercised during such three (3) month
period, Xx. Xxxx may sell the Capital Stock to the Purchaser upon the terms and
conditions set forth in the Notice of Sale, provided however, that such sale
shall be conditioned: (i) upon the Purchaser joining in this Agreement and
entering into an employment agreement with the New PC on such terms and
conditions as may be approved by the MSO, and (ii) upon Xx. Xxxx executing a
Non-Competition Agreement in the form attached hereto as Exhibit C.
9. Assignment of the Successor Designation Option The Successor
Designation Option may be assigned by the MSO or any assignee of the MSO to
OMEGA or to a duly licensed endodontist, by a written assignment, signed by both
the MSO and the assignee. When the context so requires in this Agreement, the
term "MSO" shall be deemed to refer to an assignee holding an assignment of the
Successor Designation Option with respect to such Capital Stock, and the terms
"party" and "parties" shall be deemed to include
10. Purchase Price of the Capital Stock.
(a) The purchase price ("Purchase Price") due and payable by
the Designated Successor upon exercise of the Successor Designation Option shall
be an amount equal to the product of (a) the aggregate net amount received by
the New PC pursuant to Article 6 and Schedule 3 of the Management Services
Agreement for the twelve (12) calendar months immediately preceding the month in
which the Successor Designation Exercise Notice is delivered to Xx. Xxxx (or his
successor or representative) multiplied by (b) a fraction, the numerator of
which is the number of shares of the Capital Stock to be purchased and the
denominator of which is the total number of shares of the Capital Stock
outstanding at the time of such purchase.
(b) Payment of Purchase Price. The Purchase Price upon
exercise of the Successor Designation Option shall be paid by the Designated
Successor executing a negotiable promissory note, secured by the Capital Stock
of the New PC. The note shall be for a term of five years, with interest payable
quarterly in arrears at the mid-term Applicable Federal Rate with monthly
compounding published by the Internal Revenue Service from time to time in
accordance with Section 1274(d) of the Internal Revenue Code of 1986, as amended
(the "Code") or any successor provision of the Code, provided however, that the
Designated Successor shall be permitted to prepay such note at any time.
Principal shall be payable in five equal annual installments commencing six
months after the closing date.
(c) Purchase From Xx. Xxxx'x Estate.
(i) Upon the death of Xx. Xxxx and receipt of notice of a
Successor Designation Exercise Notice, Xx. Xxxx'x personal representative shall
apply for and obtain any necessary court approval or confirmation of the sale of
Xx. Xxxx'x shares of Capital Stock pursuant to this Agreement. The
representative of the estate of Xx. Xxxx and the Designated Successor shall
complete such sale as soon after the date of death as practicable, but no later
than 180 days after such event.
(ii) The death of Xx. Xxxx'x spouse, if any, shall not be
considered the death of Xx. Xxxx for purposes of this Agreement.
(iii) The estate of Xx. Xxxx shall bear, and hold the New PC
harmless from, all costs and expenses incurred as a result of securing any court
orders, court decrees, court approvals or inheritance tax clearances required to
enable the estate of Xx. Xxxx to transfer to the Designated Successor full legal
and equitable tax-free title to the Capital Stock of Xx. Xxxx.
(d) Other Purchases. Except for purchases of Capital Stock
upon exercise of the Successor Designation Option pursuant to Section 5(a)(i)
hereof, all other purchases of Capital Stock pursuant to such Option shall close
thirty (30) days after the date of any Successor Designation Exercise Notice,
unless extended by the parties.
11. Insurance.
(a) In order to insure the MSO's interest in the Management
Services Agreement and under this Agreement, Xx. Xxxx hereby consents to the
acquisition and maintenance in force of a disability insurance policy and a life
insurance policy by the MSO and OMEGA on Xx. Xxxx ("Insurance Policies"). The
life insurance policy may be in an aggregate face amount of up to one times Xx.
Xxxx'x income, as shown on the W-2 Form prepared by the New PC for the most
recent calendar year. Xx. Xxxx agrees, at the election of the MSO and OMEGA, to
take whatever actions are necessary to assist in the acquisition of any such
Insurance Policy by the MSO and OMEGA.
(b) The Insurance Policies shall name the MSO and OMEGA as
sole owner and beneficiary of such policies.
(c) As long as the Insurance Policies provided for herein are
in full force and effect, the MSO and OMEGA shall pay all premiums falling due
on all such policies. Such payments shall be made by the MSO or OMEGA and shall
not be considered MSO expenses pursuant to this Agreement.
(d) No insurance company that has issued or shall issue an
Insurance Policy or Policies to the MSO as permitted under this Agreement shall
be under any obligation with respect to the performance of the terms and
conditions of this Agreement. Any such company shall be bound only by the terms
of the Insurance Policy or Policies which it has issued or shall hereafter issue
and shall have no liability except as set forth in its policies.
12. Representations. The New PC and Xx. Xxxx each represent and warrant
to the MSO and OMEGA that as of the day and year first above written and during
the term of this Agreement, Exhibit A is a true and complete listing of the
Capital Stock, as revised from time to time pursuant to this Agreement.
13. Restriction on Transfer.
(a) Except to the extent and in the manner provided in this
Agreement or with the express prior written consent of the MSO which may be
granted or withheld in its absolute discretion, Xx. Xxxx shall not sell, assign,
transfer, pledge or otherwise dispose (including by gift or otherwise) of any of
his shares of the Capital Stock.
(b) Issuance of Stock; Change in Ownership; Mergers and
Consolidation. Without the prior written consent of the MSO, Xx. Xxxx shall not
permit the New PC to, and the New PC shall not, during the term of this
Agreement, issue any stock, other equity, or debt of the New PC; permit any
change in the composition or respective percentage ownership of the New PC;
merge, consolidate or otherwise reorganize with or into any other corporation,
partnership, trade, business, or the like; amend or otherwise modify its
articles of incorporation or bylaws; dissolve; or enter into any agreement with
any person to do any of the foregoing without the prior written consent of the
MSO.
14. Delivery of Stock Power. Upon execution of this Agreement, Xx. Xxxx
shall execute and deliver to [Insert Name of Dr.'s counsel], as escrow agent
(the "Escrow Agent"), a sufficient number of assignments separate from
certificates, endorsed in blank to cover all of the Stock (the "Stock Power")
held of record or beneficially owned by Xx. Xxxx. Upon execution of this
Agreement, Xx. Xxxx shall deliver to the Escrow Agent all certificates
heretofore issued representing all of the shares of Capital Stock held of record
or beneficially owned by Xx. Xxxx. Each such certificate shall have affixed to
the back of the certificate a legend substantially as follows:
"The rights of any holder of any share evidenced by this certificate,
including the right to dispose of the securities represented by this
certificate or any interest therein, are subject to and restricted by a
certain Stock Put/Call Option and Successor Designation Agreement,
dated as of ______________, 1998, among the New PC, the holder hereof
and the MSO and OMEGA (as defined therein). The New PC will mail
without charge to any holder of these shares a copy of such agreement
within five (5) days of receipt by the New PC of a written request
therefor."
Upon any exercise of the Successor Designation Option by the MSO, the
Escrow Agent shall deliver the Stock Powers and the certificates representing
all of the shares of Capital Stock held of record or beneficially owned by Xx.
Xxxx to the MSO and the MSO (and/or the Designated Successor) shall be
authorized to complete the Stock Powers, attach them to the certificates and
tender the same to the transfer agent for the New PC for reissuance in the name
of the Designated Successor. Upon any termination of this Agreement without
exercise of the Successor Designation Option, the Escrow Agent shall return all
such Stock Powers and certificates to Xx.
Xxxx.
15. Confidentiality. The parties shall use all good faith efforts to
keep the contents of this Agreement and all other aspects of the negotiations
preceding execution of this Agreement confidential. Unless required by law, the
New PC, Xx. Xxxx, and the MSO and OMEGA shall not disclose the contents of this
Agreement or the negotiations leading to this Agreement to third parties without
the prior written consent of the other parties. The MSO shall ensure that all of
the assignees likewise comply with the obligations of confidentiality imposed by
this Section, except that the MSO and the assignees may disclose the contents of
such to the extent required by law or otherwise to their respective agents,
representatives, contractors, and employees to the extent necessary to exercise
their respective rights or perform their respective obligations hereunder.
16. Term. The term of this Agreement shall commence as of the day and
year first above written and shall terminate upon the termination of the
Management Services Agreement or the exercise (and consummation of the
transaction provided for upon such exercise) of the Put Option, the Call Option
or the Successor Designation Option as to all of the Capital Stock, as the case
may be (the "Term").
17. General
(a) Compliance with Law. The New PC and Xx. Xxxx shall comply
with all applicable requirements of applicable state law and regulations, and
other licensing and accreditation authorities.
(b) Relationship of Parties. In the exercise of their
respective rights and the performance of their respective obligations under this
Agreement, the New PC and Xx. Xxxx on the one hand and OMEGA and the MSO (or any
assignee of the MSO) on the other hand are acting in the capacity of the grantor
and grantee of an option to purchase or to designate the purchase of shares of
Capital Stock and nothing in this Agreement is intended nor shall be construed
to create an employer/employee, partnership, joint venture or a landlord/tenant
relationship between or among the parties.
(c) Assignment. The rights and duties of the parties under
this Agreement may not be assigned or transferred without the prior written
consent of the non-assigning party, which consent shall not be unreasonably
withheld; provided, however, that the MSO and OMEGA shall be permitted to assign
its and their respective rights and duties hereunder without the consent of Xx.
Xxxx or the New PC to any person, firm or corporation controlled by the MSO or
OMEGA, controlling the MSO or OMEGA or under common control with the MSO or
OMEGA or to such financing institutions as may be required by the terms of
credit agreements which may be entered into from time to time by Omega for the
obtaining of addition financing for Omega.
(d) Counterparts. This Agreement, and any amendments thereto,
may be executed in counterparts, each of which shall constitute an original
document, but which together shall constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. Any notice or other communication in connection
with this Agreement shall be deemed to be delivered if in writing (or in the
form of a telegram or facsimile transmission) addressed as provided below and if
either (a) actually delivered at said address, or (b) in the case of a letter,
three business days shall have elapsed after the same shall have been deposited
in the United States mail, postage prepaid and registered or certified, return
receipt requested, or sent by reputable overnight courier:
If to Xx. Xxxx, to:
Xxxxxx X. Xxxx, D.D.S., M.S.
0000 XX Xxxxxxxxxx Xxxxxxxxx
Xxxx, Xxxxxx 00000
If to the OMEGA, to:
Omega Orthodontics, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
and in any case at such other address as the addressee shall have specified by
written notice. All periods of notice shall be measured from the date of
delivery thereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon.
(h) Amendment. This Agreement may be amended at any time by
agreement of the parties, provided that any amendment shall be in writing and
executed by the parties.
(i) Severability. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid or unenforceable, (i) the
parties shall amend this Agreement in order to carry out the intent and
essential business purposes of this Agreement as closely possible within the
requirements of applicable provisions of Law as determined by such a court, and
(ii) the remaining provisions will nevertheless continue in full force and
effect.
(j) Fees and Expenses. The New PC, Xx. Xxxx and the MSO and
OMEGA each shall bear their own expenses, including, without limitation,
attorneys' and accountants' fees, incurred in connection with the preparation of
this Agreement and the transactions contemplated hereby.
(k) Exhibits and Schedules. All attachments and schedules
attached to this Agreement are incorporated herein by this reference and all
references herein to "Agreement" shall mean this Agreement together with all
such exhibits and schedules.
(l) Time of Essence. Time is expressly made of the essence of
this Agreement in each and every provision hereof of which time of performance
is a factor.
(m) Attorneys' Fees. Should any of the parties hereto
institute any action or proceeding to enforce this Agreement or any provision
hereof (including without limitation, arbitration), or for damages by reason of
any alleged breach of this Agreement or of any provision hereof, or for a
declaration of rights hereunder (including, without limitation, by means of
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.
(n) 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 Agreement and
the intentions of the parties hereto.
(o) Remedies. The remedies specified in this Agreement are the
exclusive remedies for liabilities of the parties arising under this Agreement.
The limitations on liability, releases from liability, and waiver and indemnity
provisions expressed in this Agreement shall apply to the full extent permitted
by law, even in the event of a parties' fault, negligence (in whole or in part),
strict liability, or other basis of liability, and whether liability is founded
in contract, tort, or otherwise, and shall extend to the parties and its
affiliated companies and its and their shareholders, directors, officers and
employees.
18. Alternative Dispute Resolution.
18.1 General.
(a) If during the term of this Agreement a dispute arises between the
parties, or one party perceives the other as acting unfairly or unreasonably, or
a question of interpretation arises hereunder, then the parties' shall promptly
confer and exert their best efforts in good faith to reach a reasonable and
equitable resolution of the issue.
If resolution cannot be reached by the parties within thirty (30) days as set
forth above, then any controversy or claim arising out of this Agreement of an
aggregate amount less than $250,000 not resolved pursuant to the above shall be
settled by arbitration under the rules or the American Arbitration Association's
Rules. Judgment upon any award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof. Any arbitration decision awarding an
amount less than $250,000 shall be final and binding upon the parties. Amount
awarded in excess of $250,000 shall be appealable to a court in accordance with
Article 15.9 hereof. Any arbitration proceeding shall be filed in the office of
the American Arbitration Association located in Portland, Oregon and such
arbitration shall be conducted in Bend, Oregon. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction. The
arbitrator, shall be bound by the terms and conditions of this Agreement and
shall not have the authority to award multiple, punitive or consequential
damages under any circumstances.
For claims exceeding $250,000, either Party may, at its option, elect to have
any dispute adjudicated by either arbitration in accordance with Article 15.9
hereof.
(b) In the event of a disagreement concerning the calculation of any fees by
either party, the parties agree to accept as correct, final and binding, the
determination of an independent certified public accountant (CPA) selected by
the mutual agreement of the parties. If the parties cannot agree upon the
selection of a CPA within thirty (30) days after a written request for a CPA's
selection, then the requesting party shall deliver a list of five (5) CPAs ( at
least two of which are a member of the "Big Six" accounting firms). Upon receipt
of such list, the other party shall select one of such five firms as the CPA. If
no selection is made, the requesting party may select one from the list of five
and notify the other party of such choice. The cost of the CPA's review shall be
born by the requesting party unless the CPA determines that the requesting party
was under paid by more than two (2%) percent in which event the parties shall
split such cost. In the event such under payment is greater than ten (10%)
percent, the other party shall pay all CPA costs. Each party agrees to cooperate
fully with the CPA in connection with its review.
18.2 Waiver of Jury. With respect to any dispute arising under
or in connection with this Agreement or any related agreement, as to which legal
action nevertheless occurs, each party hereby irrevocably waives all rights it
may have to demand a jury trial. This waiver is knowingly, intentionally and
voluntarily made by the parties and each party acknowledges that no person
acting on behalf of the other party has made any representation of fact to
induce this waiver of trial by jury or in any way modified or nullified its
effect. The parties each further acknowledge that it has been represented (or
has had the opportunity to be represented) in the signing of this Agreement and
in the making of this waiver by independent legal counsel, selected of its own
free will, and that it has had the opportunity to discuss this waiver with
counsel. Each party further acknowledges that it has read and understands the
meaning and ramifications of this waiver provision.
IN WITNESS WHEREOF, the New PC, Xx. Xxxx, MSO and OMEGA have executed
this Agreement as of the date first above written by their duly authorized
representatives as set forth below.
"NEW PC"
Xxxxxx X. Xxxx, P.C.
an Oregon corporation
By: ______________________________
Xxxxxx X. Xxxx, D.D.S., M.S., President
XX. XXXX
------------------------------
Xxxxxx X. Xxxx, D.D.S., M.S.
"MSO"
OMEGA ORTHODONTICS OF WOODLAND HILLS, INC.
a Delaware corporation
By: ______________________________
Xxxxxx X. Xxxxxxxx, President
"OMEGA"
OMEGA ORTHODONTICS, INC.,
a Delaware corporation
By:_______________________________
Xxxxxx X. Xxxxxxxx, President and
Chief Executive Officer
SPOUSAL JOINDER AND CONSENT
I am the spouse of Xxxxxx X. Xxxx, D.D.S., M.S., the sole Stockholder
of Xxxxxx X. Xxxx, P.C.. To the extent that I have any interest in any of the
Capital Stock (as that term is defined in the Stock Put/Call Option and
Successor Designation Agreement), I hereby join in such Agreement and agree to
be bound by its terms and conditions to the same extent as my spouse. I have
read the Stock Put/Call Option and Successor Designation Agreement, understand
its terms and conditions, and to the extent that I have felt it necessary, I
have retained independent legal counsel to advise me concerning the legal effect
of this Stock Put/Call Option Agreement and this Spousal Joinder and Consent.
I understand and acknowledge that each of the MSO and OMEGA is significantly
relying on the validity and accuracy of this Spousal Joinder and Consent in
entering into this Stock Put/Call Option and Successor Designation Option
Agreement.
Executed this day of ____________, 1998.
Signature:
Printed or Typed Name:
EXHIBIT A
ENDODONTIC OFFICES
The offices and related leasehold improvements constituting the Endodontic
Offices are located at 0000 XX Xxxxxxxxxx Xxxxxxxxx, Xxxx, Xxxxxx 00000.
EXHIBIT B
STOCK
The authorized capital stock of the New PC is ____________ shares of common
stock, $______ par value per share. ___________shares of the common stock of the
New PC are issued and are outstanding, all of which shares are evidenced by
Certificate No. 1 issued in the name of Xxxxxx X. Xxxx, D.D.S., M.S.
EXHIBIT C
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT ("Agreement") is made as of this ____ day of May,
1998 by and between Xxxxx Xxxx, D.D.S., M.S. ("Xx. Xxxx"), who is duly licensed
to practice orthodontics in the state of Oregon, and Xxxxxx X. Xxxx, P.C., a
professional corporation (the "New PC") incorporated under the laws of the
State.
All capitalized terms used herein and not otherwise expressly defined
shall have the same meanings set forth in that certain Stock Put/Call Option and
Successor Designation Agreement ("Stock Agreement") dated ____________, 1998 by
and among Xx. Xxxx, the New PC, Omega Orthodontics, Inc., a Delaware corporation
("Omega") and Omega Orthodontics of Woodland Hills, Inc., a Delaware corporation
(the "MSO") which is a wholly owned subsidiary of Omega.
RECITALS
A. Xx. Xxxx is the sole owner of the Capital Stock of the New PC and
desires to transfer all of his right, title and interest in and to such Capital
Stock pursuant to Section 8 of the Stock Agreement to the Purchaser.
B. The Purchaser has agreed to join the Stock Agreement and to enter
into an employment agreement with the New PC on terms and conditions acceptable
to and approved by the MSO.
C. As a condition to the transfer by Xx. Xxxx of his Capital Stock to
the Purchaser pursuant to Section 8 of the Stock Agreement, Xx. Xxxx has agreed
to enter into an agreement in the form of this Agreement to be delivered to the
New PC upon the closing of the transfer of his Capital Stock pursuant to Section
8 of the Stock Agreement.
NOW, THEREFORE, in consideration of the foregoing promises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows.
1. Xx. Xxxx'x Covenants. During the term of this Agreement in the Service
Area described in Section 4 below, Xx. Xxxx shall not (directly or indirectly
through any business, enterprise, venture, partnership, corporation or any other
entity controlled directly or indirectly by Xx. Xxxx, whether alone or as a
partner, stockholder, creditor or otherwise):
(a) Provide orthodontic or other dental services, or engage,
participate, aid, assist, or hold any interest in any business or the provision
of any managed care plan service which is, or as of Xx. Xxxx'x engagement or
participation, would become, competitive with the New PC's orthodontic practice
business;
(b) Engage or contract (other than with the MSO or any of the
MSO's affiliates) for the provision of any management services for Xx. Xxxx or
any person employed or under contract to Xx. Xxxx (as applicable) which are the
same as or substantially similar to any of the services that the MSO or any of
the MSO's affiliates furnishes;
(c) Solicit or assist any other person to solicit any business
relating to a competing line of business (other than for the New PC or any of
its affiliates) from any present or potential patient, customer (including all
third party payors) of Xx. Xxxx, the New PC or any of their respective
affiliates;
(d) Commit any other act or assist others to commit any other
act which might injure the business of the New PC, the MSO or any of their
respective affiliates;
(e) Directly or indirectly employ, contract, solicit or
encourage any employee or other person under contract with the New PC, the MSO
or any of their respective affiliates to leave the employ of any such entity;
and
(f) Directly or indirectly solicit, request, advise, or
encourage any present or future supplier, patient, customer or employee of the
New PC, the MSO or their respective affiliates to withdraw, curtail or cancel
its business dealings with the New PC, the MSO or their respective affiliates,
or take any actions that might impair the relations of the New PC, the MSO or
any of their respective affiliates and their respective suppliers, patients,
customers, employees or others.
2. Xx. Xxxx'x Representations. Xx. Xxxx specifically acknowledges,
represents, and warrants that: (i) his covenants set forth in this Agreement are
being given in connection with the sale of the Capital Stock to the Purchaser
pursuant to Section 8 of the Stock Agreement; (ii) such covenants are reasonable
and necessary to protect the legitimate interests of the New PC, the MSO and
Omega; and (iii) the New PC, the MSO and Omega would not have consented to such
sale in the absence of such restrictions. Xx. Xxxx acknowledges that this
Agreement is subject to all representations, warranties and covenants of Xx.
Xxxx in the Stock Agreement.
3. Service Area. The Service Area to which Xx. Xxxx'x covenants in Section
1 apply is defined as the area within a fifteen (15) mile radius (or the maximum
radius permitted by law, if less) of each orthodontic office or other facility
owned, operated or managed by Xx. Xxxx, the New PC, the MSO, Omega or their
respective affiliates now existing or hereafter established.
4. Term. The term of this Agreement commences as of the day and year first
above written and continues for twenty-four (24) months.
5. Payment. As consideration for Xx. Xxxx'x agreement not to compete and
other covenants herein, the New PC shall pay Xx. Xxxx upon the execution of this
Agreement by the New PC the amount of One Thousand Dollars ($1,000).
6. Remedies. In the event of a breach by Xx. Xxxx of this Agreement, the
New PC shall be entitled to receive, on behalf of the MSO, from Xx. Xxxx, in
addition to other remedies and not by way of an election of remedies, liquidated
damages equal in amount to the greater of (a) Xx. Xxxxx'x income, as shown on
the W-2 form prepared by the New PC for the most recent calendar year or (b)
Thirty five (35%) percent of the preceding years Gross Practice Revenues. Any
amounts received by the New PC pursuant to the prior sentence shall be paid to
the MSO by the New PC immediately following receipt by the New PC. Should a
court fail to enforce the liquidated damages provision set forth in the first
sentence of this Section 6, the parties acknowledge and agree that, absent such
liquidated damages, a breach by Xx. Xxxx of this Agreement will cause
irreparable damage to the New PC, the exact amount of which will be difficult to
ascertain, and that remedies at law for any such breach will be inadequate.
Accordingly, Xx. Xxxx agrees that in such case, the New PC shall be entitled to
injunctive relief and Xx. Xxxx agrees not to assert in any proceeding that the
New PC has an adequate remedy at law. Xx. Xxxx shall pay the reasonable fees and
expenses, including attorneys fees, incurred by the New PC or any successor or
assign in enforcing this Agreement.
7. Third Party Beneficiaries. The parties expressly understand and agree
that the MSO and Omega are third party beneficiaries of this Agreement and shall
be entitled to all of the rights and remedies provided herein to the New PC and
shall be entitled to enforce the terms of this Agreement.
8. Miscellaneous.
(a) Successors and Assigns. This 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 Agreement or the rights, interests or obligations
hereunder; provided, however, that the New PC may assign its rights, interests
and obligations to the MSO, Omega and their affiliates without the consent of
Dr. _____________. Any assignment or delegation in contravention of this Section
shall be null and void.
(b) Counterparts. This Agreement, and any amendments thereto,
may be executed in counterparts, each of which shall constitute an original
document, but which together shall constitute one and the same instrument.
(c) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) Amendment. This Agreement may not be amended except
in a writing executed by all parties --------- parties.
(e) Time of Essence. Time is expressly made of the essence of
this Agreement and each and every provision hereof of which time of performance
is a factor.
(f) 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 Xx. Xxxx: Xx. Xxxxxx X. Xxxx, D.D.S., M.S.
0000 XX Xxxxxxxxxx Xxxxxxxxx
Xxxx, Xxxxxx 00000
If to the New PC: Xx. Xxxxxx X. Xxxx, D.D.S., M.S.
0000 XX Xxxxxxxxxx Xxxxxxxxx
Xxxx, Xxxxxx 00000
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon
(h) Severability. If any provision or portion of this
Agreement is held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Agreement will nevertheless continue in
full force and effect and shall not be invalidated or rendered unenforceable or
otherwise adversely affected, unless such invalidity or unenforceability would
defeat an essential business purpose of this Agreement. Without limiting the
generality of the foregoing, if the provisions of this Agreement shall be deemed
to create a restriction, which is unreasonable as to either duration or
geographical area or both, the parties agree that the provisions of this
Agreement shall be enforced for such duration and in such geographic area as any
court of competent jurisdiction on may determine to be reasonable.
(i) Attorneys' Fees. Should either the New PC or Xx. Xxxx
institute any action or procedure to enforce this Agreement or any provision
hereof, or for damages by reason of any alleged breach of this 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
the day and year first written above.
"XX. Xxxx" "NEW PC"
___________________ By: ___________________________
President
