EXHIBIT 2.4
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET AND SALE AGREEMENT (the "Agreement") is made and entered this
15th day of October, 2004, by and between UNION DENTAL CORP., a Florida
Corporation (hereinafter referred to as the "Purchaser"), and XXXXXX X. XXXXX,
D.D.S., P.A., a Florida professional corporation (hereinafter referred to as the
"Seller" and collectively referred to as the "Sellers"). Seller and Purchaser
are sometimes herein referred to collectively as the "Parties" and singularly as
the "Party".
RECITALS:
WHEREAS, Seller operates a dental practice (the "Practice") and a dental
network marketing company (the "Marketing Company") located at 000 X. Xxxxxxxxxx
Xxxxx, Xxxxx 000 and 304 respectively, Xxxxx Xxxxxxx, Xxxxxxx 00000 (sometimes
hereinafter referred to as the "premises"); and
WHEREAS, Seller desire to sell, and Purchaser wishes to purchase, certain
of the assets of Seller used in the operation of the Practice and Marketing
Company at the Premises, including cash and funds held in bank accounts as of
the date of the closing, upon the terms and conditions and for the price
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants, representations
and warranties contained in this Agreement, and for the good an valuable
consideration paid by the parties hereto to the other, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as
follows:
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants, representations and warranties contained in this Agreement, and for
other good and valuable consideration paid by the Parties hereto to the other,
the receipt and sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows:
1. Recitations. The aforesaid recitations are true and correct and are
incorporated by reference herein.
2. Sale of Assets. Subject to the terms and conditions contained herein, on
the Closing Date (as hereinafter defined), Seller agrees to sell, convey,
transfer and deliver to the Purchaser, and the Purchaser agrees to purchase from
the Seller, only the assets set for on Exhibit "A" attached hereto and made a
part hereof (collectively hereinafter referred to as the "Assets"), free and
clear of all liens, claims, pledges and encumbrances of any kind, character and
description
3, No Assumption of Liabilities. The Assets shall be conveyed by Seller to
Purchaser, with general warranties of title, free and clear of any and all
liens, security agreements, claims and encumbrances, except as otherwise
provided herein the debts listed on Exhibit B" (collectively hereinafter
referred to as the "Debts"), and Purchaser shall not be deemed to have assumed
or to have taken any other assets of Seller to be liable and responsible for
satisfying and discharging and liabilities and obligations of Seller, whether
known or unknown, mature or contingent other than provided for in Exhibit B.
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4. Purchase Price and Payment. The aggregate purchase price (Purchase
Price") payable by Purchaser for the Assets shall be One Million Dollars ($
1,000,000.00) Dollars, shall be payable by delivery of Purchaser's Promissory
Note (the "Note") in the amount of the Purchase Price with interest thereon of
five percent (5%) per annum, and which note shalkl contain, among other matters,
that principal and interest be payable in 10 (10) equal yearly installments.
5. Date and Place of Closing.The closing ("Closing") shall be effective on
the date of the execution of this Agreement (the "Closing Date") and shall take
place at the office of Purchaser's attorney, located at 0000 X.X. 0xx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, or at such other place as may be mutually agreed by
the arties. The Closing shall take place simultaneously with the execution of
this Agreement.
6. Documents for Closing. Sellers will execute such deeds, bills of sale,
endorsements, assignments, and other good and sufficient instruments of
conveyance and transfer in the form satisfactory to Purchaser's attorney, and
containing full warranties of title, which instruments shall be effective to
vest title in Purchaser, good, absolute and marketable title in the Assets being
transferred herein free and clear of all liens, charges, and encumbrances, and
restrictions whatsoever, except as list in Exhibit "B" of this Agreement.
7. Warranties and Representations. Sellers represent and warrant to
Purchaser, which representations and warranties will be correct and complete as
of the Closing Date, as follows:
(a) Organization, Power and Standing. Seller is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its formation, and has all requisite power and authority to own the Assets
and to conduct its Practice as now being conducted.
(b) Authorization of Transaction; Binding Effect. Seller has all
requisite power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of, and performance of its
obligations under, this Agreement by Seller has been duly authorized by all
requisite action on the part of Seller. This Agreement constitutes a valid
and binding obligation of Seller enforceable against it in accordance with
its terms.
(c) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any person, governmental
authority or governmental accrediting body having jurisdiction is required
in connection with the execution and delivery of this agreement by Seller
or the consummation by Seller of the transactions contemplated hereby.
(d) Litigation. There are no claims, actions, suits or proceedings
(arbitration or otherwise) pending, or, to the best of Seller's knowledge,
threatened against Seller with respect to Seller's Practice or the Assets
at law or in equity in any court or before or by any governmental
authority. Seller is not in default in respect of any judgment, order,
writ, injunction or decree of any court or other governmental authority
with respect to the Assets or the Practice of Seller or the transactions
contemplated by this Agreement.
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(e) Title to Asset. At time of Closing, Seller is the owner of and has
good and marketable title to the Assets as above described, free and clear
of all liens and encumbrances, except as hereinafter set forth, at time of
Closing, and is with full authority to sell the Assets as set forth in
Paragraph 1 above.
(f) Taxes. There are no Federal, State or local or other taxes owed
which could constitute or give rise to any lien upon the Assets being
transferred in connection with this transaction, impose any liability upon
Purchaser or the Assets being transferred, or prevent the closing of this
transaction, nor will there be at Closing.
(g) Contracts. Seller has entered into no contracts to sell, encumber
or mortgage the Assets or any portion thereof, except as otherwise
described in this Agreement.
(h) Condition of Assets. The Assets purchased under this Agreement
shall be in good working condition as of the time of the Closing. In the
event that any of the aforesaid items shall be found to be in need of
repair, Seller shall, prior to the closing at Seller's expense, repair the
property to working condition. At Purchaser's option, Purchaser may accept
a credit from Seller for the cost of said repairs, which credit shall be
applied against the cash portion of the Purchase Price required at the
Closing,
(i) Full Disclosure. No representation or warranty by Seller in this
Agreement, whether in this Section 8 or otherwise, nor any statement,
schedule or certification furnished, or to be furnished, to Purchaser
pursuant hereto or in connection with the transactions contemplated hereby,
contains, or will contain, any untrue statement of a material fact, or
omits, or will omit, to state a material fact necessary to make the
statements contained therein not misleading.
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8. Warranties and Representations of Purchaser. Purchaser represents and
warrants to Seller, which representations and warranties will be correct and
complete as of the Closing Date, as follows:
(a) Organization, Power and Standing. Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its formation.
(b) Authorization of Transaction: Binding Effect. Purchaser has all
requisite power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of, and performance of its
obligations under, this Agreement by Purchaser has been duly authorized by
all requisite action on the part of Purchaser. This Agreement constitutes a
valid and binding obligation of Purchaser enforceable against it in
accordance with its terms.
(c) Approval. No consent, approval, order or authorization of, or
registration, declaration or filing with, any person, governmental
authority or governmental accrediting body having jurisdiction is required
in connection with the execution and delivery of this Agreement by
Purchaser or the consummation by Purchaser of the transactions contemplated
hereby.
(d) Litigation. There are no claims, actions, suits or proceedings
(arbitration or otherwise) pending, or, to the best of Purchaser's
knowledge, threatened against Purchaser with respect ~o Purchaser's
business at law or in equity in any court or before or by any governmental
authority. Purchaser is not in default in respect of any judgment, order,
writ, injunction or decree of any court or other governmental authority
with respect to the business of Purchaser or the transactions contemplated
by this Agreement.
9. Seller's Indemnification.
(a) Seller shall defend, indemnify, save and keep Purchaser, its
officers, directors, managers members, assigns, its lenders and their
respective officers and directors and successors and assigns, forever
harmless against and from assigns, forever harmless against and from all
liabilities, demands, claims, actions or causes of action, assessments,
losses, fines, penalties, costs, damages and expenses, including reasonable
attorneys' and expert witness fees (collectively, "Indemnifiable Matters")
sustained or incurred By Purchaser, its lenders and their respective
successors or assigns, as a result of or arising out of or by virtue of:
(i) The failure of Seller to comply with, or the breach by Seller of
any representation, warranty or covenant of, this Agreement to be performed
by Seller (including, without limitation, this Section); or
(ii) Any third party claim or action arising prior to the date of
Closing relating to the Assets; or
(iii) Any liability arising from filing information with the Internal
Revenue Service, or Florida Department of Revenue; or
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(iv) Any and all tax liabilities of Seller with regard to the Assets
being sold hereunder, including but not limited to, personal property,
sales and use taxes, and any transferee liabilities imposed by any Federal,
State or local taxing authorities; or
(v) Together with any incidental expenses incurred by Purchaser in
defending all actions, suits, proceedings, demands, assessments, judgment,
costs and expenses incidental to any of the foregoing.
(b) Purchaser's Indemnification. Purchaser agrees to indemnify, defend
and hold harmless Seller from and against all Indemnifiable Matters
reasonably and proximately incurred by Seller as a result of (i) any breach
of any representation or warranty made by Purchaser in this Agreement or
any certificate delivered pursuant to this Agreement to Seller, or (ii) any
breach of or failure to perform any covenant or agreement of Purchaser as
required by this Agreement, or (iii) any third party claim or action
arising after the date of Closing relating to the Assets.
(c) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 1O, then the Indemnified Party
shall promptly notify the Indemnifying Party thereof in writing; provided.
however, that no delay on the part of the Indemnified Party in notifying
the Indemnifying Party shall relieve the Indemnifying Party from any
obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is materially prejudiced in defending any such
claim.
(ii) Any Indemnifying Party will have the right to assume the defense
of the Third Party Claim with counsel of its choice reasonably satisfactory
to the Indemnified Party, so long as (A) the Indemnifying Party notifies
the Indemnified Party in writing within thirty (30) days after the
Indemnified Party has given notice of the Third Party Claim, that the
Indemnifying Party elects to assume such defense, and (B) the Third Party
Claim involves only money damages and does not seek an injunction or other
equitable relief; provided, however, that the Indemnifying Party must
conduct the ""'defense of the Third Party Claim actively and diligently
thereafter in order to preserve its rights in this regard, and provided,
further that the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third Party
Claim.
(iii) So long as the Indemnifying Party elected to assume and is
conducting the defense of the Third Party Claim in accordance with (ii)
above, (A) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnifying Party (not to be
withheld unreasonably), and (8) the Indemnifying Party will not consent to
the entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably).
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(iv) In the event none of the Indemnifying Parties assumes and
conducts the Thirty Party Claim in accordance with (ii) above (A) the
Indemnified Party may defend against, and consent to the entry of any
judgment or enter into any settlement with respect to, the Third Party
Claim in any manner it reasonably may deem appropriate (and the Indemnified
Party need not consult with, or obtain any consent from, the Indemnifying
Party in connection therewith), (8) the Indemnifying Party will reimburse
the Indemnified Party promptly and periodically for the costs of defending
against the Third Party Claim (including reasonable attorneys' fees and
expenses), and (C) the Indemnifying Party will remain responsible for any
damages or losses the Indemnified Party may suffer resulting from arising
out of, or otherwise relating to the Third Party Claim to the fullest
extent provided in this Section 10.
10. Miscellaneous.
(a) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing, and shall be deemed duly given if
(and then two (2) business days after) sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Sellers: XXXXXX X. XXXXX, D.D.S., P .A.
0000 Xxxxxxxxxx Xxxxx,
Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxx 00000
If to Purchaser: UNION DENTAL CORP.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxx 00000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (Including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but the same shall not be
deemed to have been duly given unless and until it actually is received by the
intended recipient. Any Party may change the address to which notices and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
(b) Consent to Jurisdiction and Service of Process. Any claim arising out
of or relating to this Agreement shall be instituted in any Federal or State
court in the county of Broward and State of Florida, and each Party agrees not
to assert, by way of motion, as a defense or otherwise in any such claim, that
it is not subject personally to the jurisdiction of such court, that the claim
is brought in an inconvenient forum, that the venue of the claim is improper or
that this Agreement or the subject matter hereof may not be enforced in or by
such court. Each Party further irrevocably submits to the jurisdiction of such
courts in any such claim. Any and all service of process and any other notice in
any such claim shall be effective against any Party if given personally or by
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registered or certified mail, return receipt requested, or by any other means of
mail that requires a signed receipt, postage prepaid, mailed to such Party as
herein provided. Nothing herein contained shall be deemed to affect the right of
any Party to serve process in any manner permitted by law or to commence legal
proceedings or otherwise against any other Party in any other jurisdiction.
(c) Successors and Assigns. This Agreement and the various rights and
obligations arising hereunder shall inure to the benefit of and be binding upon
Seller, its respective successors and permitted assigns, and Purchaser and its
successors and permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be transferred or assigned (by
operation of law or otherwise) by any of the Parties without the prior written
consent of the other Party except that Seller or Purchaser shall have the right
to assign its rights hereunder to an affiliate of Seller. Any transfer or
assignment of any of the rights, interests or obligations hereunder in violation
of the terms hereof shall be void and of no force or effect.
(d) Expenses. Each Party shall be responsible for and shall pay its own
expenses incidental to the execution and delivery of, and the performance of its
obligations under, this Agreement, including the consummation of the
transactions contemplated hereby, regardless of whether the acquisition is
consummated or this Agreement is terminated.
(e) Entire Agreement: Governing Law: Amendments: etc. This Agreement (i)
constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and understandings, both written and oral, among the
Parties with regard to the subject matter hereof, (ii) except as specifically
provided for herein is not intended to confer upon any person not a party any
rights or remedies hereunder or with respect to the subject matter hereof, (iii)
shall be governed by, and construed and enforced in accordance with, the
internal substantive laws (but not the law governing choice of law) of the State
of Florida, (iv) may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute a single agreement, (v) may be amended only by a document ., signed
by all of the Parties hereto and (vi) may be waived with respect to any
provision only by a document signed by the Party entitled to the benefit of such
provision.
(f) Headings. The article, section and subsection headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement (or any provision thereof).
(g) Delays or Omissions; Waiver. No delay or omission to exercise any
rights, power or remedy accruing to any Party hereto, upon any breach or default
of any other Party under this Agreement, shall impair any such right, power or
remedy of such Party nor shall it be construed to be a waiver of, or estoppel
with respect to, any such breach or default, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any Party hereto of any breach
or default under this Agreement, or any waiver on the part of any Party of any
provisions, obligations, covenants, agreements or conditions of this Agreement
must be made in writing and shall be effective only to the extent otherwise
afforded to any Party, shall be cumulative and not alternative. Whenever this
Agreement requires or permits consent by or on behalf of any Party hereto, such
consent shall be given in writing.
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(h) Severability. Unless otherwise provided herein, if any provision of
this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
(i) Attorneys' Fees. If any Party to this Agreement seeks to enforce the
terms and provisions of this Agreement, then the prevailing Party in such action
shall be entitled to recover from the losing party all costs in connection with
such action, including, without limitation, reasonable attorneys' fees, expenses
and costs incurred at the administrative, trial, bankruptcy and all appellate
levels.
(j) No Construction Against Draftsmen. The Parties hereto acknowledge that
this is a negotiated Agreement, and that in no event shall the terms hereof be
construed against either Party on the basis that such Party, or its counsel,
drafted this Agreement.
(k) No Reliance. No third party is entitled to rely on any of the
representations, warranties and agreements of the Parties hereto contained in
this Agreement; and the Parties assume no liability to any third party because
of any reliance on the representations, warranties and agreements of the Parties
hereto contained in this Agreement.
(l) Further Instruments and Actions. Each Party hereto shall deliver ;an~
further instruments and take any further action that may be reasonably requested
by the other in order to carry out the provisions and purposes of this
Agreement.
(m) Survival Clause. All agreements, representations, warranties or
covenants contained in the Agreement shall survive the Closing of this
transaction.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed and dated as of the date and year first above written.
Sellers:
XXXXXX X. XXXXX, D.D.S., P.A.
a Florida professional corporation
BY: /s/ Xx. Xxxxxx X. Xxxxx
-----------------------------
Its: President
Purchaser:
UNION DENTAL CORP.
By: /s/ Xx. Xxxxxx X. Xxxxx
------------------------------
Its: President
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Exhibit "A"
All Assets associated with Sellers business with the exception of the Patient
List of the Dental Practice which shall remain the property of Xx. Xxxxxx X.
Xxxxx.
The Purchase Price has been determined to be One Million Two Hundred Eighty Five
Thousand Six Hundred Twenty Three Dollars and no cents ($1,285,623.00) less the
shareholder loan owed by Xx. Xxxxxx X. Xxxxx in the amount of $285,623.00.
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Promissory Installment Note
RECITATIONS:
Date: October 15, 2004
Borrower: Union Dental Corp.
Borrower's Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Payee: Xx. Xxxxxx X. Xxxxx
Place for Payment: Union Dental Corp.
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Principal Amount: $1,000,000.00
Term: Ten (10) years
Yearly Payments: $100,000.00 plus accrued interest at the rate of five (5)
percent per annum.
INTEREST RATE: Annual interest rate shall be five percent (5%) per annum. Any
unpaid accrued balance in default of payment shall be at the maximum rate
allowed under the laws of the State of Florida. PAYMENT TERMS: This Note is due
and payable as follows, to-wit: Ten (10) equal yearly payments of $100,000.00
principal plus interest. The first such payment due and payable on the 27th day
of October, 2005, and a like installment shall be due and payable on the same
day of each succeeding month thereafter until the total principal of One Million
Dollars $ 1,000,000.00 principal is paid in full. If each payment is not paid on
time, the remaining balance will be subject to the maximum amount of interest
permitted by the Laws of the State of Florida.
BORROWER'S PRE-PAYMENT RIGHT. Borrower reserves the right to prepay this Note in
whole or in part, prior to maturity, without penalty. PLACE FOR PAYMENT.
Borrower promises to pay to the order of Payee at the place for payment and
according to the terms for payment the principal amount plus interest at the
rates stated above. All unpaid amounts shall be due by the final scheduled
payment date.
DEFAULT AND ACCELERATION CLAUSE. If Borrower defaults in the payment of this
Note or in the performance of any obligation, and the default continues after
Payee gives Borrower notice of the default and the time within which it must be
cured, as may be required by law or written agreement, then Payee may declare
the unpaid principal balance and earned interest on this Note immediately due.
Borrower and each surety, endorser, and guarantor waive all demands for payment,
presentation for payment, notices of intentions to accelerate maturity, notices
of acceleration of maturity, protests, and notices of protest, to the extent
permitted by law.
INTEREST ON PAST DUE INSTALLMENTS AND CHARGES. All past due installments of
principal and/or interest and/or all other past-due incurred charges shall bear
interest after maturity at the maximum amount of interest permitted by the Laws
of the State of Florida until paid. Failure by Borrower to remit any payment by
the 15th day following the date that such payment is due entitles the Payee
hereof to declare the entire principal and accrued interest immediately due and
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payable. Payee's forbearance in enforcing a right or remedy as set forth herein
shall not be deemed a waiver of said right or remedy for a subsequent cause,
breach or default of the Borrower's obligations herein.
INTEREST. Interest on this debt evidenced by this Note shall not exceed the
maximum amount of non-usurious interest that may be contracted for, taken,
reserved, charged, or received under law; any interest in excess of the maximum
shall be credited on the principal of the debt or, if that has been paid,
refunded. On any acceleration or required or permitted prepayment, any such
excess shall be canceled automatically as of the acceleration or prepayment or,
if already paid, credited on the principal of the debt or, if the principal of
the debt has been paid, refunded. This provision overrides other provisions in
this instrument (and any other instruments) concerning this debt.
FORM OF PAYMENT. Any check, draft, Money Order, or other instrument given in
payment of all or any portion hereof may be accepted by the holder and handled
in collection in the customary manner, but the same shall not constitute payment
hereunder or diminish any rights of the holder hereof except to the extent that
actual cash proceeds of such instruments are unconditionally received by the
payee and applied to this indebtedness in the manner elsewhere herein provided.
ATTORNEY'S FEES. If this Note is given to an attorney for collection or
enforcement, or if suit is brought for collection or enforcement, or if it is
collected or enforced through probate, bankruptcy, or other judicial proceeding,
then Borrower shall pay Payee all costs of collection and enforcement, including
reasonable attorney's fees and court costs in addition to other amounts due.
SEVERABILITY. If any provision of this Note or the application thereof shall,
for any reason and to any extent, be invalid or unenforceable, neither the
remainder of this Note nor the application of the provision to other persons,
entities or circumstances shall be affected thereby, but instead shall be
enforced to the maximum extent permitted by law.
BINDING EFFECT. The covenants, obligations and conditions herein contained shall
be binding on and inure to the benefit of the heirs, legal representatives, and
assigns of the parties hereto.
DESCRIPTIVE HEADINGS. The descriptive headings used herein are for convenience
of reference only and they are not intended to have any effect whatsoever in
determining the rights or obligations under this Note.
CONSTRUCTION. The pronouns used herein shall include, where appropriate, either
gender or both, singular and plural.
GOVERNING LAW. This Note shall be governed, construed and interpreted by,
through and under the Laws of the State of Florida. Borrower is responsible for
all obligations represented by this Note.
EXECUTED this 15th Day of October, 2004.
Union Dental Corp.
By: /s/ Xx. Xxxxxx X. Xxxxx
-------------------------------
Its: President
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