Exhibit 2.3
AFFILIATION AGREEMENT AND AGREEMENT AND PLAN OF MERGER
THIS AFFILIATION AGREEMENT AND AGREEMENT AND PLAN OF MERGER is entered
into as of the 31st day of March 1997, by and among Omega Orthodontics, Inc., a
Delaware corporation ("OMEGA " or "Surviving Entity"); Xxxxxxxx X. Xxxxxx, Xx.,
D.D.S. ("Xx. Xxxxxx"), who is duly licensed to practice orthodontics in the
state of Colorado (the "State"); and Xxxxxxxx X. Xxxxxx, Xx., D.D.S., P.C., a
Colorado professional corporation (the "Orthodontic Entity").
RECITALS
A. OMEGA provides professional management and marketing services to
orthodontic practices in the United States, which services include providing
practice management systems, office space, equipment, furnishings and active
administrative personnel necessary for the operation of orthodontic practices,
and which services are provided directly or indirectly through management
service organizations.
B. The Orthodontic Entity owns and operates an orthodontic practice with
offices located at 0000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000 (the "Orthodontic Offices") and furnishes orthodontic care to the
general public through the services of Xx. Xxxxxx affiliated with the
Orthodontic Entity.
C. Xx. Xxxxxx presently holds 100% of the issued and outstanding capital
stock of the Orthodontic Entity (the issued and outstanding capital stock is
hereafter referred to herein as the "Interests").
D. Xx. Xxxxxx owns all of the Interests, and desires to convert the status
of the Orthodontic Entity from a professional entity to a general purpose entity
and to form a new professional corporation or entity to continue his orthodontic
practice at the Orthodontic Offices.
E. OMEGA has conducted a review of the Orthodontic Entity, and has reviewed
the Orthodontic Entity's unaudited financial and operations statement provided
by Xx. Xxxxxx (the "Financial Statement"), a copy of which is attached hereto as
Exhibit A . Based on its review of the Orthodontic Entity and the Financial
Statement, OMEGA has issued the report (the "Report"), a copy of which has been
furnished to the Orthodontic Entity. The Orthodontic Entity and Xx. Xxxxxx have
reviewed the Report and OMEGA's literature, and agree with the Report and the
concepts of OMEGA's Exceptional Practice.
F. Subject to the terms and conditions of this Agreement, OMEGA and Xx.
Xxxxxx have determined that it is in the best interests of each to effect a
merger of the Orthodontic Entity with and into (the "Merger") as provided in
Section 2.1 hereof.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of
which are hereby acknowledged to the full satisfaction of the parties hereto,
the parties hereto agree as follows:
ARTICLE I. ENTITY FORMATION AND CONVERSION
1.1 At the Closing (as defined in Section 2.3 hereof), Xx. Xxxxxx shall
cause the Orthodontic Entity's charter ("Charter") to be amended to convert the
Orthodontic Entity into a general purpose entity under the laws of the State.
1.2 Xx. Xxxxxx shall form a new professional entity (the "New PC") under
the laws of the State and, in accordance with the terms of this Agreement,
commence the practice of orthodontics through the New PC.
1.3 INTENTIONALLY OMITTED.
ARTICLE II. MERGER
2.1 Merger; Consideration and Payment.
(a) At the Effective Time (as hereinafter defined) and subject to the terms
and conditions hereinafter set forth, the parties hereto agree to cause the
Merger to be consummated by filing with the Delaware Secretary of State and the
State Secretary of State (if required) a Certificate of Merger (the "Certificate
of Merger") in the form required by applicable law, duly executed and
acknowledged by the Surviving Entity, and taking all such further actions as may
be required by law to make the Merger effective. The Merger shall become
effective upon the filing of the Certificate of Merger with the Delaware
Secretary of State and the State Secretary of State (if required) (the
"Effective Time"), and OMEGA will be the surviving entity.
(b) At the Effective Time, the Interests of Orthodontic Entity outstanding
immediately prior to the Effective Time shall, on such date, by virtue of the
Merger and upon surrender to OMEGA of the certificates therefor, duly endorsed
and transferable, free and clear of any liens, encumbrances, restrictions or
claims of any kind (other than those liens, encumbrances, restrictions and
claims expressly disclosed to OMEGA and affirmatively accepted by OMEGA prior to
the Effective Time), without any further action on the part of any holder
thereof, be converted into the right to receive an aggregate consideration (the
"Consideration") of:
(i) Two Hundred Twenty Six Thousand Seven Hundred
Sixteen Dollars ($226,716) in cash payable to Xx. Xxxxxx (the "Cash
Component"); and
(ii) One Hundred Six Thousand Five Hundred Fifty Seven
Dollars ($106,557.00) to be represented by a promissory note (the
"Purchase Note") payable to Xx. Xxxxxx (the "Note Component") in
the form attached hereto as Exhibit B; and
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(iii) Three Hundred Forty Six Thousand Eight Hundred
Seventy Six Dollars ($346,876.00) to be represented by issuance to
Xx. Xxxxxx of shares of OMEGA common stock ("OMEGA Stock") based on
a value per share equal to 100% of the IPO Price (as defined below
in Section 2.3) (the "Stock Component"), which shall thereupon be
issued to Xx. Xxxxxx, fully paid and nonassessable.
(c) INTENTIONALLY OMITTED.
2.2 Adjustment and Audit.
(a) The Consideration is based on the value of the Interests as determined
by OMEGA from the information set forth in the Financial Statement. At OMEGA's
option, OMEGA will cause an audit (the "Audit") of the Financial Statement and
the books and records of the Orthodontic Entity to be completed prior to Closing
to confirm the accuracy and completeness of the information in the Financial
Statement.
(b) The Consideration shall be subject to adjustments at Closing for: (i)
prepaid and underpaid rent and other lease obligations, if the leases are to be
continued after Closing, as well as for other agreed normal and customary
prepaid and underpaid expenses; (ii) any accrued but unpaid salaries, bonuses
and other compensation, fringe and health insurance benefits, employment or
payroll taxes and related employment obligations and (iii) any accounts payable
of the Orthodontic Entity which have accrued prior to the Effective Time and
which remain unpaid as of such time (the "Accounts Payable") in excess of an
amount equal to one-half (1/2) of one "Average" month of gross income from the
Orthodontic Entity. As used herein, Average shall mean an average of the
Accounts Payable of the Orthodontic Entity using the last twelve months prior to
the end of the month immediately preceding the Effective Time.
(c) The adjustments to the Consideration, if any, shall be applied in
the following order of priority; first to the Cash Component, second to the Note
Component, and the balance, if any, to the Stock Component.
2.3 Time and Place of Closing. The closing of the transactions contemplated
hereby (herein called the "Closing") shall be held immediately before the
Effective Time at the offices of Xxxxxxxx & Xxxx, Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 on the date of the closing of OMEGA's initial public
offering of its securities (the "IPO Closing") pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") ("IPO"), or at such other place, date or time as may be fixed
by mutual agreement of the parties; provided, however, that in no event shall
the Closing date be extended beyond June 30, 1997. On or before the IPO Closing,
OMEGA will notify the Orthodontic Entity of the projected IPO Closing Date
determined by OMEGA, in its sole discretion. As used herein "IPO Price" shall
mean the initial offering price to the public of OMEGA Stock as reflected on the
cover page of its Prospectus under the Securities Act for the IPO.
2.4 Filing Certificate of Merger. Contemporaneous with the Closing, the
duly executed Certificate(s) of Merger shall be filed with the Delaware
Secretary of State and the State Secretary of State (if required).
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2.5 Delivery of Records, Contracts, Interests. At the Closing Xx. Xxxxxx
shall deliver or cause to be delivered to OMEGA:
(a) all of the Orthodontic Entity's minute books, stock records and other
company books and records and the Orthodontic Entity's leases, contracts,
employment agreements, non-compete agreements, commitments and rights, with such
consents to the Merger as are necessary to assure OMEGA of the full benefit of
the same.
(b) Evidence of malpractice insurance coverage for the current and five (5)
prior years, and if applicable, either evidence of so-called "tail" insurance
for such period or evidence of coverage under the New PC's policy for acts
occurring during such period, but as yet unclaimed, in either case, naming the
Orthodontic Entity (and any successor by merger) as a co-insured or otherwise
assigning to the Orthodontic Entity and its successor by merger the full
benefits thereof
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Representations and Warranties of Xx. Xxxxxx and the Orthodontic Entity
in the attached Schedule 1 are hereby incorporated as if fully set forth herein.
The Representations and Warranties of OMEGA in the attached Schedule 2 are
hereby incorporated as if fully set forth herein. Capitalized words and
expressions used in this Agreement and which are defined in said Schedules 1 and
2 shall have the same meaning as they are given therein.
ARTICLE IV. COVENANTS OF XX. XXXXXX
AND THE ORTHODONTIC ENTITY
Xx. Xxxxxx and the Orthodontic Entity hereby covenant and agree with OMEGA
as follows:
4.1 Conduct of Business. Between the date of this Agreement and the
Closing, they will do the following unless OMEGA shall otherwise consent in
writing:
(a) conduct its business only in the ordinary course, and refrain from
changing or introducing any method of management or operations except in the
ordinary course of business and consistent with prior practices;
(b) refrain from making any purchase, sale or disposition of any asset or
property other than in the ordinary course of business, from purchasing any
capital asset costing more than $1,000 and from mortgaging, pledging, subjecting
to a lien or otherwise encumbering any of the Interests, the Property or other
assets of the Orthodontic Entity;
(c) refrain from incurring any contingent or fixed obligations or
liabilities except those that are usual and normal in the ordinary course of
business;
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(d) refrain from making any change or incurring any obligation to make a
change in its Charter or By-laws (certified copies of which are attached hereto
as Exhibit D) or authorized or issued capital stock, except as contemplated by
this Agreement;
(e) refrain from declaring, setting aside or paying any dividend or making
any other distribution in respect of capital stock, or making any direct or
indirect redemption, purchase or other acquisition of capital stock, of the
Orthodontic Entity;
(f) use its best efforts to keep intact its business organization, to keep
available its present officers, agents and employees and to preserve the
goodwill of all patients, suppliers, and others having business relations with
it;
(g) not commit or fail to commit any act which would cause Xx. Xxxxxx or
the Orthodontic Entity to suffer the revocation, suspension or limitation of Xx.
Xxxxxx'x or the Orthodontic Entity's license.
(h) permit OMEGA and its authorized representatives to have full access to
all its properties, assets, records, tax returns, company records, contracts and
documents and furnish to OMEGA or its authorized representatives such financial
and other Information with respect to its business or properties as OMEGA may
from time to time reasonably request.
4.2 Authorization from Others. Prior to the Closing, they will have
obtained all assignments, authorizations, consents and permits of others
required to permit the consummation by Xx. Xxxxxx and the Orthodontic Entity of
the transactions contemplated by this Agreement.
4.3 Breach of Representations and Warranties. Promptly upon becoming aware
of the actual, impending or threatened occurrence of any event which would cause
or constitute a breach, or would have caused or constituted a breach had such
event occurred or been known to them prior to the date hereof, of any of their
representations and warranties contained in or referred to in this Agreement,
they shall give detailed written notice thereof to OMEGA and Acquisition and
shall use their best efforts to prevent or promptly remedy the same.
4.4 Consummation of Agreement. Each shall use his or its best efforts to
perform and fulfill all conditions and obligations on his or its part to be
performed and fulfilled under this Agreement, to the end that the transactions
contemplated by this Agreement shall be fully carried out.
ARTICLE V. COVENANTS OF OMEGA.
OMEGA each hereby covenants and agrees with Xx. Xxxxxx and the Orthodontic
Entity as follows:
5.1 Authorization from Others. Prior to the Closing, OMEGA will have
obtained all
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authorizations, consents and permits of others required to permit the
consummation by it of the transactions contemplated by this Agreement.
5.2 Consummation of Agreement. OMEGA shall use its best efforts to perform
and fulfill all conditions and obligations on its part to be performed or
fulfilled under this Agreement, to the end that the transactions contemplated by
this Agreement shall be fully carried out.
5.3 Breach of Representations and Warranties. Promptly upon becoming aware
of the actual, impending or threatened occurrence of any event which would cause
or constitute a breach, or would have caused or constituted a breach had such
event occurred or been known to them prior to the date hereof, of any of their
representations and warranties contained in or referred to in this Agreement,
they shall give detailed written notice thereof to Xx. Xxxxxx and the
Orthodontic Entity and shall use their best efforts to prevent or promptly
remedy the same.
ARTICLE VI. CONDITIONS TO OBLIGATIONS OF OMEGA
The obligations of OMEGA to consummate this Agreement and the transactions
contemplated hereby are subject to the condition that on or before the Closing
the actions required by this Article 6 will have been accomplished.
6.1 Representations; Warranties; Covenants. Each of the representations and
warranties of the Orthodontic Entity and Xx. Xxxxxx contained in Schedule 1
shall be true and correct as though made on and as of the Closing, and Xx.
Xxxxxx and the Orthodontic Entity shall have performed all of his or its
obligations hereunder which by the terms hereof are to be performed on or before
the Closing.
6.2 New PC. Xx. Xxxxxx shall have formed the New PC under the laws of the
State in order to commence the practice of orthodontics through the New PC. Xx.
Xxxxxx shall have furnished (i) a certificate of the State Secretary of State as
to the legal existence and professional corporation good standing of New PC; and
(ii) a copy of the resolutions adopted by the board of directors and
stockholders of New PC authorizing and approving the Management Services
Agreement and the Stock Put/Call Option and Successor Designation Agreement.
6.3 Other Agreements. Xx. Xxxxxx shall have executed and delivered, or
shall have caused the New PC to execute and deliver, to OMEGA or a wholly owned
subsidiary of and designated by OMEGA, a Management Services Agreement and a
Stock Put/Call Option and Successor Designation Agreement, each having
substantially the terms and conditions of the forms hereof collectively attached
hereto as Exhibit E .
6.4 Initial Public Offering. OMEGA shall have completed the IPO.
6.5 Absence of Certain Litigation. There shall not be any injunction,
restraining order or order of any nature issued by any court of competent
jurisdiction which directs that this Agreement or any material transaction
contemplated hereby shall not be consummated as herein provided, or suit, action
or other proceeding which in the reasonable opinion of counsel for
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OMEGA is likely to result in the restraint or prohibition of the consummation of
any material transaction contemplated hereby.
6.6 Notices. The Orthodontic Entity shall, at OMEGA expense, notify all
patients and obligors of accounts receivable, and third party payors and others
designated by OMEGA of the Merger and the other transactions contemplated
hereunder pursuant to notices substantially in the form collectively attached
hereto as Exhibit C.
6.7 Financial Condition. The financial condition of the Orthodontic Entity
shall not be materially adversely different from the Financial Statement, as
determined by OMEGA. During the period from the date of the Financial Statement
to the Closing, there shall not have been any material adverse change in the
financial condition, results of operations, business or prospects of the
Orthodontic Entity, nor any material loss or damage to its assets, whether or
not insured, which materially affects the ability of Orthodontic Entity to
conduct its business. The Orthodontic Entity shall have delivered to OMEGA a
certificate, dated the date of Closing, to the foregoing effect, and further to
the effect that there are no Accounts Payable or other liabilities as of the
date of Closing that are not reflected on the Financial Statement other than
those which have been disclosed in writing to and accepted in writing by OMEGA
and which incurred since the date of the Financial Statement in the ordinary
course of business.
6.8 Due Xxxxxxxxx.XXXXX, acting in good faith and in its sole discretion,
shall be reasonably satisfied with the results of its "Due Diligence" on Xx.
Xxxxxx and the Orthodontic Entity as not reflecting any data or information
which individually or in the aggregate, if previously disclosed, would have
indicated that there was a material adverse change in the business of the
Orthodontic Entity or in the condition or prospects (financial or otherwise) of
the assets, properties, operations, patients, employees or equipment of the
business of the Orthodontic Entity from the information provided prior to the
date hereof. As used herein, Due Diligence shall mean, without limitation, the
results of the Audit of the Financial Statement and of all other matters
(financial or otherwise) related to, or otherwise deemed material by OMEGA,
regarding Xx. Xxxxxx and the Orthodontic Entity, including location of the
Orthodontic Offices and its demographics, the leases, the Equipment, insurance,
licensing, malpractice issues, liabilities, compliance with laws and regulations
and health surveys.
ARTICLE VII. CONDITIONS TO OBLIGATIONS OF THE
ORTHODONTIC ENTITY AND XX. XXXXXX
The obligations of the Orthodontic Entity and Xx. Xxxxxx to consummate this
Agreement and the transactions contemplated hereby are subject to the condition
that on or before the Closing the actions required by this Article 7 will have
been accomplished.
7.1 Representations; Warranties; Covenants. Each of the representations and
warranties of OMEGA contained in Schedule 2 shall be true and correct as though
made on and as of the Closing and OMEGA shall have performed all of its
obligations hereunder which by the terms hereof are to be performed on or before
the Closing.
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7.2 INTENTIONALLY OMITTED.
7.3 Other Agreements. OMEGA or a wholly owned subsidiary of and designated
by OMEGA shall have executed and delivered to Xx. Xxxxxx and New PC a Management
Services Agreement and a Stock Put/Call Option and Successor Designation
Agreement, each having substantially the terms and conditions of the forms
hereof collectively attached hereto as Exhibit E.
7.4 Initial Public Offering. OMEGA shall have completed the IPO.
7.5 Absence of Certain Litigation. There shall not be any injunction,
restraining order or order of any nature issued by any court of competent
jurisdiction which directs that this Agreement or any material transaction
contemplated hereby shall not be consummated as herein provided, or suit, action
or other proceeding which in the reasonable opinion of counsel for Xx. Xxxxxx is
likely to result in the restraint or prohibition of the consummation of any
material transaction contemplated hereby.
ARTICLE VIII. OBLIGATIONS AFTER CLOSING.
8.1 OMEGA Exceptional Practice and the Report Suggestions. On and after the
Closing, Xx. Xxxxxx agrees to cause the New PC to implement the suggestions in
the Report and the concepts of OMEGA's Exceptional Practice.
8.2 Books and Records. OMEGA shall permit Xx. Xxxxxx, his accountants and
attorneys, reasonable access to such books and records for the purpose of
preparing such tax returns of Xx. Xxxxxx as may be required after the Closing
and for other proper purposes approved by OMEGA.
8.3 License. Xx. Xxxxxx shall maintain all licenses necessary to practice
orthodontics in the State. Xx. Xxxxxx shall not commit or fail to commit any act
which would cause Xx. Xxxxxx or the New PC to suffer the revocation, suspension
or limitation of Xx. Xxxxxx'x or the New PC's license.
ARTICLE IX. INDEMNIFICATION.
9.1 Indemnification By Xx. Xxxxxx. Subject to the limitations set forth in
Section 9.3, Xx. Xxxxxx agrees to defend, indemnify and hold OMEGA harmless from
and against any damages, liabilities, losses and expenses (including reasonable
counsel fees) of any kind or nature whatsoever which may be sustained or
suffered by OMEGA based upon a breach of any representation, warranty or
covenant made by the Orthodontic Entity or Xx. Xxxxxx in this Agreement or in
any exhibit, certificate, schedule or financial statement delivered hereunder,
or by reason of any claim, action or proceeding asserted or instituted growing
out of any matter or
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thing covered by such representations, warranties or covenants. OMEGA may at
their option recover such indemnification claims by OMEGA by set off against
amounts of principal and interest due under the Purchase Note, but shall not be
required to recover said claims in such manner and may proceed against Xx.
Xxxxxx and his transferee in liquidation at any time or times for recovery of
indemnification claims.
9.2 Indemnification By OMEGA. Subject to the limitations set forth in
Section 9.3, OMEGA agrees to defend, indemnify and hold Xx. Xxxxxx harmless from
and against any damages, liabilities, losses and expenses (including reasonable
counsel fees) of any kind or nature whatsoever which may be sustained or
suffered by Xx. Xxxxxx based upon a breach of any representation, warranty or
covenant made by OMEGA in this Agreement or in any exhibit, certificate,
schedule or financial statement delivered hereunder, or by reason of any claim,
action or proceeding asserted or instituted growing out of any matter or thing
covered by such representations, warranties or covenants.
9.3 Exclusions. Notwithstanding Sections 9.1 and 9.2:
(a) no indemnification shall be payable to the extent any claim is covered
by insurance; and
(b) no indemnification shall be payable with respect to claims asserted
more than five (5) years after the Closing.
9.4 Notice: Defense of Claims. Prompt written notice of each claim for
indemnification hereunder shall be given to the other party, specifying the
amount and nature of the claim, and of any matter which in the opinion of the
claimant is likely to give rise to an indemnification claim. The indemnifying
party shall have the right to participate at its own expense in the defense of
any such matter or its settlement. If, in the opinion of the indemnified party,
its financial condition or business would not be impaired thereby, such party
may authorize the indemnifying party to take over the defense of such matter so
long as such defense is expeditious. Failure to give notice of a matter which
may give rise to an indemnification claim shall not affect the rights of any
party to collect such claim from the other party or its transferees in
liquidation.
9.5 Payment of Claims; Alternative Dispute Resolution. (a) Indemnification
claims by OMEGA may be paid or otherwise satisfied as an offset against the
Purchase Note as set forth under Section 9.1, and, in the alternative or after
any such offset, indemnification claims by OMEGA shall be paid or otherwise
satisfied by Xx. Xxxxxx, or Xx. Xxxxxx'x transferees in liquidation, within 30
days after notice thereof is given by OMEGA. In the event Xx. Xxxxxx indicates
in a writing delivered to OMEGA that he disputes the nature or amount of the
claim, in which event the dispute upon the election of any party hereto after
said 30-day period shall be settled in accordance with Section 9.5(b).
(b) If a dispute arises under this Agreement that cannot be resolved
informally by the parties, any party may invoke the procedures set forth in
Exhibit F hereto and the parties agree to use these procedures, except paragraph
(c) of this Section 9.5, prior to any party pursuing other available remedies.
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The parties will meet and attempt in good faith to resolve any controversy or
claim arising out of or relating to this Agreement.
(c) Notwithstanding anything in this Section 9.5 to the contrary, nothing
shall preclude any party from seeking a preliminary injunction or other
provisional relief, either prior to or during the proceeding provided for in
this section, if in its judgment such action is necessary to avoid irreparable
damage or to preserve the status quo.
ARTICLE X. MISCELLANEOUS.
10.1 Termination.
(a) At any time prior to the Closing, this Agreement may be terminated (i)
by mutual consent of the parties with the approval of their respective board of
directors or members, (ii) by either if there has been a material
misrepresentation, breach of warranty or breach of covenant by the other party
in its representations, warranties and covenants set forth herein, (iii) by
OMEGA if the conditions stated in Article VI have not been satisfied at or prior
to the Closing, or (iv) by Xx. Xxxxxx if the conditions stated in Article VII
have not been satisfied at or prior to the Closing.
(b) If the IPO is not successfully completed within six (6) months of this
Agreement, this Agreement may be terminated by OMEGA or Xx. Xxxxxx upon written
notice to the other party, and if so terminated, all obligations of the parties
hereunder shall terminate without any further liability of either party to the
other, except that each party shall remain obligated in respect of the
provisions of Section 10.3 and 10.7 which shall survive any such termination.
10.2 Survival of Warranties and Other Obligations. All representations,
warranties, agreements, covenants and obligations herein or in any schedule,
exhibit, certificate or financial statement delivered by either party to the
other party incident to the transactions contemplated hereby are material, shall
be deemed to have been relied upon by the other party and shall survive the
Closing regardless of any investigation and shall not merge in the performance
of any obligation by either party hereto.
10.3 Fees and Expenses. Each of the parties will bear its or his own
expenses in connection with the negotiation and the consummation of the
transactions contemplated by this Agreement.
10.4 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:
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If to Xx. Xxxxxx and the Orthodontic Entity, to:
Xxxxxxxx X. Xxxxxx, Xx., D.D.S.
0000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
If to the OMEGA to:
Omega Orthodontics, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxx, XX 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.
10.5 Entire Agreement. This Agreement (including all exhibits or schedules
appended to this Agreement and all documents delivered pursuant to the
provisions of this Agreement, all of which are hereby incorporated herein by
reference) together with the Management Services Agreement and the Stock
Put/Call Option and Successor Designation Agreement (including all exhibits and
schedules thereto), taken together, constitute the entire agreement between the
parties, and all promises, representations, understandings, warranties and
agreements with reference to the subject matter hereof and inducements to the
making of this Agreement relied upon by my party hereto, have been expressed
herein or therein.
10.6 Binding Agreement, Successors. This Agreement shall be binding upon,
and shall be enforceable by and inure to the benefit of, the parties named
herein and their respective successors and assigns; provided, however, that this
Agreement may not be assigned by any of the parties without the prior written
consent of all the other parties.
10.7 Confidentiality. As used herein, "Confidential Information" means any
information or data that a party has acquired from another party that is
confidential or not otherwise available to the public, whether oral or written,
including without limitation any analyses, computations, studies or other
documents prepared from such information or data by or for the directors,
officers, employees, agents or representatives of such party (collectively, the
"Representatives"), but excluding information or data which (i) became available
to the public other than as a result of such party's violation of this
Agreement, (ii) became available to such party from a source other than the
other party if that source was not bound by a confidentiality agreement with
such other party and such source lawfully obtained such information or data, or
(iii) is required to be disclosed by applicable law, provided that promptly
after being compelled to disclose any such information or data, the party being
so compelled shall provide prompt notice thereof to the other party so that such
other party may seek a protective order or other appropriate remedy. Each party
covenants and agrees that it and its Representatives shall keep confidential and
shall not disclose all Confidential Information, except to its Representatives
and lenders who need to know such
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information and agree to keep it confidential. Each party shall be responsible
for any breach of this provision by its Representatives. In the event that the
Closing does not occur, each party will promptly return to the other all copies
of such other party's Confidential Information.
10.8 Governing Law; Severability. This Agreement shall be deemed a
contract made under the laws of the State of Delaware and, together with the
rights and obligations of the parties hereunder, shall be construed under and
governed by the laws of such state. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision hereof.
10.9 Referrals. Nothing in this Agreement shall be construed as an offer or
payment to the other party or any affiliate of the other party of any cash or
other remuneration whether directly or indirectly, overtly or covertly,
specifically for patient referrals or for recommending or arranging the
purchase, lease or order of any item or service. The Consideration to be
received upon consummation of the Merger represents the fair market value of the
Orthodontic Entity and is not in any way related to or dependent upon referrals
by and between OMEGA, Acquisition and Xx. Xxxxxx.
10.10 Further Assurances. Following the execution of this Agreement, Xx.
Xxxxxx, the Orthodontic Entity and OMEGA each agrees:
(a) to deliver such other instruments of title, certificates, consents,
endorsements, assignments, assumptions and other documents or instruments, in
form reasonably acceptable to the party requesting the same and its counsel, as
may be reasonably necessary to carry out and/or to comply with the terms of this
Agreement, and the transactions contemplated herein;
(b) to confer on a regular basis with the other, report on material
operational matters and promptly advise the other orally or in writing of any
change or event resulting in or which, insofar as can reasonably be foreseen
could result in, a material adverse effect on such party or which would cause or
constitute a material breach of any of the representations, warranties or
covenants of such party contained herein; and
(c) to provide the other (or its counsel) promptly with copies of all
filings made by such party with any state or federal governmental entity in
connection with this Agreement or the transactions contemplated hereby.
10.11 Counterparts; Section Headings; Gender. This Agreement may be
executed, accepted and delivered in any number of counterparts, but all
counterparts shall together constitute but one and the same instrument. The
underlined section headings are inserted for convenience of reference only and
are not to be construed as part of this Agreement. The use of the masculine or
neuter gender includes each of the other genders.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
/s/ Xxxxxxxx X. Xxxxxx, Xx., D.D.S.
-----------------------------------
Xxxxxxxx X. Xxxxxx, Xx., D.D.S.
Xxxxxxxx X. Xxxxxx, Xx. D.D.S., P.C.
By: /s/ Xxxxxxxx X. Xxxxxx, Xx. D.D.S.
-----------------------------------
Xxxxxxxx X. Xxxxxx, Xx. D.D.S.
Its _______________________________
Duly Authorized
OMEGA ORTHODONTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Printed Name: Xxxxxx X. Xxxxxxxx
Its President and Chief Executive Officer
Duly Authorized
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Exhibit A
Financial Statements
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Exhibit B
Purchase Note
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Exhibit C
Notices
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Exhibit D
Orthodontic Entity's Charter and
By-Laws
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Exhibit E
Draft Management Services Agreement and
Stock Put/Call Option and Successor Designation Agreement
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Exhibit F
Alternative Dispute Resolution
A. Method of Invoking ADR Procedures
1. These procedures may be invoked by any party to an agreement which
incorporates these procedures by giving written notice to the other of the
dispute and designating a person with decision-making authority (the
"representative") to act on behalf of the disputing party regarding the dispute.
The other party shall be required to respond to the disputing party's notice
within five (5) business days by designating in writing its own representative.
A party may choose more than one person to represent it. If a party appoints
only one representative, one or more of its officers may nonetheless attend such
meetings.
2. The parties, each acting through its representative, shall meet at a
mutually acceptable time and place within five business days after the
non-disputing party designates its representative to the other. At that meeting,
the parties shall attempt in good faith to negotiate a resolution of the
dispute, or failing that, to agree on a method for resolving the claim or
dispute.
3. If, within ten (10) business days after the first meeting or within such
longer period of time as the parties may mutually agree, the parties have not
succeeded in negotiating a resolution of the claim or dispute or agreeing on a
dispute resolution mechanism, they shall submit the dispute to mediation in
accordance with the procedures set forth herein.
4. The parties will jointly appoint a mutually acceptable mediator to
mediate the dispute. If the parties are unable to agree on a mutually acceptable
mediator within five (5) days after the conclusion of the negotiations described
in paragraph 3 above, then the parties shall select a neutral third party from
the Center for Public Resources, New York, New York ("CPR") Panels of Neutrals,
with the assistance of CPR, unless the parties agree otherwise in finding a
mutually acceptable mediator.
5. The New PC and the MSO shall each bear 50% of the fees and costs of the
mediator and any fees and costs of CPR.
6. The parties agree to participate in good faith in the mediation and
negotiations related thereto for a period of thirty (30) days from appointment
of a mediator by any of the parties or the CPR.
B. Mediation procedures
1. The mediator shall be neutral and impartial.
2. The mediator shall control the procedural aspects of the mediation. The
parties will cooperate fully with the mediator.
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(a) The mediator is free to meet and communicate separately with each
party.
(b) The mediator will decide when to hold joint meetings with the
parties and when to hold separate meetings. There shall be no
stenographic record of any meeting. Formal rules of evidence will
not apply.
(c) The mediator may request that there be no direct communication
between the parties or between their attorneys without the
concurrence of the mediator.
3. Each party may be represented by more than one person, e.g., one or more
of its officers and an attorney. Each party will have a representative fully
authorized to negotiate a settlement of the dispute present.
4. The process will be conducted expeditiously.
5. The mediator will not transmit information received from any party to
another party or any third person unless authorized to do so by the party
transmitting the information.
6. The entire process is confidential. The parties and the mediator will
not disclose information regarding the process, including settlement terms, to
third persons, unless the parties otherwise agree. The process shall be treated
as a compromise negotiation for purposes of the Federal Rules of Evidence and
state rules of evidence.
7. The parties will refrain from pursuing administrative and/or judicial
remedies during the mediation process, except as otherwise expressly provided in
the agreement which incorporates these procedures.
8. Unless all parties and the mediator otherwise agree in writing,
(a) The mediator will be disqualified as a witness, consultant or expert
in any pending or future investigation, action or proceeding
relating to the subject matter of the mediation (including any
investigation, action or proceeding which involves persons not party
to this mediation); and
(b) The mediator and any documents and information in the mediator's
possession will not be subpoenaed in any such investigation, action
or proceeding, and all parties will oppose any effort to have the
mediator and documents subpoenaed.
9. If the dispute goes into arbitration, the mediator shall not serve as an
arbitrator, unless the parties and the mediator otherwise agree in writing.
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10. The mediator, if a lawyer, may freely express views to the parties on
the legal issues of the dispute.
11. The mediator shall not be liable for any act or omission in connection
with the mediation.
12. The mediator may withdraw at any time by written notice to the parties
(i) for overriding personal reasons, (ii) if the mediator believes that a party
is not acting in good faith, or (iii) if the mediator concludes that further
mediation efforts would not be useful.
C. Binding Arbitration If the parties do not resolve the dispute through
mediation within the period provided in Part A above, the parties shall submit
the matter to binding arbitration in Boston, Massachusetts before a qualified
sole arbitrator in accordance with the then current CPR Rules for
Non-Administered Arbitration of Business Disputes. If the party initially
raising the dispute to be resolved is New PC or Xx. Xxxxxx, the arbitration
shall be held in Boston, Massachusetts, and if the party initially raising the
dispute to be resolved is the MSO or OMEGA, the arbitration shall be held in
Denver, Colorado. The sole arbitrator shall be agreed upon by the parties within
twenty (20) days after either party elects to submit any issue to arbitration
or, failing that, shall be selected by CPR. A qualified arbitrator is one who is
familiar with the principal subject matter of the issues to be arbitrated such
as by way of example, healthcare services industry matters, management
consulting services generally or business law/corporate matters generally.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The arbitrator shall not have the authority to award
multiple, punitive or consequential damages under any circumstances.
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Schedule 1
Representations and Warranties of
Xx. Xxxxxx and Orthodontic Entity to OMEGA
Each of the Orthodontic Entity and Xx. Xxxxxx hereby represents and
warrants to OMEGA as follows:
1. Organization and Qualification of the Orthodontic Entity. The
Orthodontic Entity is a duly formed and organized professional corporation under
the laws of the State. The Orthodontic Entity is a legally existing professional
corporation under the State Professional Corporation Act (the "Act") and no
event has occurred which alone or after the passage of time would result in the
dissolution of the Orthodontic Entity. The Orthodontic Entity has the full power
to conduct business as currently conducted by the Orthodontic Entity and to own
and lease the property it purports to own. The copies of any articles of
organization or incorporation and by-laws, as defined in the Act, of the
Orthodontic Entity which are currently in effect, and all amendments thereto
(collectively, the "Charter and By-Laws"), certified by Xx. Xxxxxx, attached
hereto as Exhibit D are complete and correct.
2. Authorization of Transaction. All necessary action, company or
otherwise, has been taken by the Orthodontic Entity to authorize the execution
of the Agreement by Xx. Xxxxxx, and the delivery and performance of this
Agreement and the transactions contemplated hereby, and the Agreement is the
valid and binding obligation of the Orthodontic Entity and Xx. Xxxxxx,
enforceable against the Orthodontic Entity and Xx. Xxxxxx in accordance with its
terms.
3. Present Compliance with Obligations and Laws. Except as disclosed on
Exhibit X attached to this Schedule, there is not: (a) any violation of the
Charter or By-Laws; (b) a default in the performance of any obligation,
agreement or condition of any debt instrument from Xx. Xxxxxx or the Orthodontic
Entity which (with or without the passage of time or the giving of notice)
affords to any person the right to accelerate any material indebtedness or
terminate any right; (c) a default of or breach of (with or without the passage
of time or the giving of notice) any other contract to which Xx. Xxxxxx or the
Orthodontic Entity is a party or by which their assets are bound; or (d) any
violation of any law, regulation, administrative order or judicial order
applicable to Xx. Xxxxxx or the Orthodontic Entity, or their business or assets.
4. No Conflict of Transaction With Obligations and Laws.
(a) Neither the execution, delivery and performance of this Agreement, nor
the performance of the transactions contemplated hereby, will: (i) constitute a
breach or violation of Orthodontic Entity's Charter or By-Laws; (ii) conflict
with or constitute (with or without the passage of time or the giving of notice)
a breach of, or default under, any debt instrument to which Xx. Xxxxxx or the
Orthodontic Entity is a party, or give any person the right to accelerate any
indebtedness or terminate any right; (iii) constitute (with or without the
passage of time or giving of notice) a default under or breach of any other
agreement, instrument or obligation to which the Orthodontic Entity or Xx.
Xxxxxx is a party or by which their assets are bound; or (iv)
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result in a violation of any law, regulation, administrative order or judicial
order applicable to the Orthodontic Entity, Xx. Xxxxxx, their business or
assets.
(b) Except as disclosed on the attached Exhibit X to this Schedule, the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby by the Orthodontic Entity do not require the consent,
waiver, approval, authorization, exemption of or giving of notice to any
governmental authority.
5. Investigations and Licenses.
(a) The Orthodontic Entity and Xx. Xxxxxx have all necessary licenses to
practice orthodontics in the State.
(b) Neither the Orthodontic Entity nor Xx. Xxxxxx is subject to any
investigation, whether threatened, current or pending, under which the
Orthodontic Entity or Xx. Xxxxxx may be required to forfeit or suffer the
revocation, suspension or limitation of Xx. Xxxxxx'x or the Orthodontic Entity's
license to practice orthodontics and neither the Orthodontic Entity nor Xx.
Xxxxxx is subject to any investigation, whether threatened, current or pending
by a commercial third-party payor.
6. Financial Statement. Attached as Exhibit A to the Agreement is the
Financial Statement of the Orthodontic Entity. To the best knowledge of Xx.
Xxxxxx, the Financial Statement is complete and correct and fairly presents in
all material respects the financial position of the Orthodontic Entity as at the
date of such statement and the results of its operations for the period then
ended, in accordance with generally accepted accounting principles consistently
applied throughout the periods covered thereby for the periods covered thereby.
7. Capitalization and the Interests. The authorized capital of the
Orthodontic Entity consists of the Interests. All of the Interests have been
validly issued and are fully paid and non-assessable. There are no options,
warrants, rights or other agreements or commitments obligating the Orthodontic
Entity or Xx. Xxxxxx to issue or sell the Interests and there are no pre-emptive
rights with respect to any Interests. Xx. Xxxxxx is the beneficial and record
owner of the Interests. Xx. Xxxxxx has good title to the Interests, free and
clear of any liens, encumbrances or restrictions of any kind. The Interests are
not subject to any voting or similar agreement.
8. Property; Liens; Condition.
(a) Except as set forth on Exhibit X to this Schedule, the Orthodontic
Entity has good and marketable title in fee simple to all of its owned real and
personal property, including without limitation, all machinery and equipment
used or owned by the Orthodontic Entity (the "Equipment") free of liens and
encumbrances (the "Property"). All the Property owned or leased by the
Orthodontic Entity is in good repair, has been well maintained, substantially
conforms with all applicable ordinances, regulations and zoning or other laws.
The Equipment is in good working order.
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(b) No other entity or person owns any of the assets necessary for the
operation of the Orthodontic Entity. The Orthodontic Entity does not operate any
of its practice through any other entities or persons.
9. Payment of Taxes. The Orthodontic Entity has filed all federal, state
and local income, excise or franchise tax returns, real estate and personal
property tax returns, sales and use tax returns and other tax returns required
to be filed and has paid all taxes owing except taxes which have not yet accrued
or otherwise become due for which adequate provision has been made in the
Financial Statement. All transfer, excise or other taxes payable by reason of
the Merger pursuant to the Agreement shall be paid or provided for by the
Orthodontic Entity after the Closing out of the Consideration to be received
upon consummation of the Merger.
10. Absence of Undisclosed Liabilities and Changes.
(a) As of the date of the Financial Statement, the Orthodontic Entity had
no liabilities of any nature, whether accrued, absolute, contingent or otherwise
(including without limitation liabilities as guarantor or otherwise with respect
to obligations of others, or liabilities for taxes due or then accrued or to
become due), except (i) liabilities stated or adequately reserved against on the
Financial Statement, (ii) liabilities not in excess of $5,000 arising in the
ordinary course of business since the date of the Financial Statement, and (iii)
liabilities disclosed in Exhibit X to this Schedule. There is no fact which
materially adversely affects, or may in the future (so far as can now be
reasonably foreseen) materially adversely affect, the business, properties,
operations or condition of the Orthodontic Entity which has not been
specifically disclosed herein or in Exhibit X to this Schedule.
(b) Except as disclosed in Exhibit X to this Schedule, since the date of
the Financial Statement there has not been:
(i) any change in the financial condition, properties, assets,
liabilities, business or operations of the Orthodontic Entity, which change
by itself or in conjunction with all other such changes, whether or not
arising in the ordinary course of business, has been materially adverse
with respect to the Orthodontic Entity;
(ii) any mortgage, encumbrance or lien placed on any of the Interests
or the Property, or the property subject to any lease, or which remains in
existence on the date hereof or at the time of Closing; or
(iii) any obligation or liability incurred by the Orthodontic Entity
other than obligations and liabilities incurred in the ordinary course of
business and disclosed on Exhibit X attached to this Schedule.
11. Litigation. Except for matters described on Exhibit X to this
Schedule, there is no action, suit, claim, proceeding or investigation pending
or, to the knowledge of the Orthodontic Entity or Xx. Xxxxxx, threatened against
the Orthodontic Entity or Xx. Xxxxxx, at law or in equity, or before or by any
Federal, state, municipal or other governmental department, commission,
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board, bureau, agency or instrumentality or governmental inquiry pending or, to
the knowledge of the Orthodontic Entity or Xx. Xxxxxx, threatened against or
involving Xx. Xxxxxx or the Orthodontic Entity, and there is no basis for any of
the foregoing, and there are no outstanding court orders, court decrees, or
court stipulations to which the Orthodontic Entity or Xx. Xxxxxx is a party
which question this Agreement or affect the transactions contemplated hereby, or
which will result in any materially adverse change in the business, properties,
operations, prospects, assets or in the condition, financial or otherwise, of
Xx. Xxxxxx or the Orthodontic Entity.
12. Insurance. The Orthodontic Entity has possessed adequate occurrence
Professional liability coverage for the five (5) years prior to the date of this
Agreement protecting the Orthodontic Entity and Xx. Xxxxxx from any professional
malpractice liability that might arise because of the Orthodontic Entity's or
Xx. Xxxxxx'x practice activities over the preceding five (5) years. Prior to the
Closing, the New PC shall have obtained and shall continue to maintain, at its
cost, Occurrence Medical Malpractice Liability Insurance for Xx. Xxxxxx and the
New PC. The Orthodontic Entity possesses adequate insurance coverage for its
Property.
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EXHIBIT X
Exceptions to Representations and
Warranties of Xx. Xxxxxx and
Orthodontic Entity to OMEGA and Acquisition
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Schedule 2
Representations and Warranties of
OMEGA to Xx. Xxxxxx and Orthodontic Entity
OMEGA hereby represents and warrants to Orthodontic Entity and Xx. Xxxxxx
as follows:
1. Organization of OMEGA. That it is a corporation duly organized, validly
existing and in good standing under the laws of Delaware with full corporate
power to own or lease its properties and to conduct its business in the manner
and in the places where such properties are owned or leased or such business is
conducted by it.
2. Authorization of Transaction. All necessary action, corporate or
otherwise, has been taken by it to authorize the execution, delivery and
performance of this Agreement, and this Agreement is a valid and binding
obligation of it enforceable against it in accordance with its terms, subject to
laws of general application affecting creditor's rights generally.
3. Litigation. There is no litigation pending or, to its knowledge,
threatened against it which would prevent or hinder the consummation of the
transactions contemplated by this Agreement.
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