EXHIBIT 2.3
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered this 17th day of May, 2005, by and between UNION DENTAL CORP., a Florida
Corporation (hereinafter referred to as the "Purchaser"), and XXXX XXXX-XXXXXXX,
D.M.D., P.A. d/b/a Dental Visions, located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxx Xxxxxxx, Xxxxxxx 00000 a Florida professional association (hereinafter
referred to as the "Seller"). Seller and Purchaser are sometimes herein referred
to collectively as the "Parties" and singularly as the "Party".
RECITALS:
WHEREAS, Seller maintains and operates a dental practice (the "Practice")
located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxxx, XX 00000 (the
"Premises"); and
WHEREAS, Seller desires to sell, and Purchaser wishes to purchase,
substantially all, but not all, of the assets of Seller used in the operation of
the Practice at the Premises upon the terms and conditions as 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:
1. Recitations. The aforesaid recitations are true and correct and are
incorporated by reference herein.
2. Sale of Assets.
a. Upon the terms and subject to the conditions of this Agreement, at the
Closing, on the Closing Date, Seller agrees to sell, assign, transfer, convey
and deliver to Purchaser, and Purchaser agrees to purchase and acquire, all of
Seller's right, title and interest in and to all of the assets owned by Seller
in connection with the Business, other than those assets specifically excluded
pursuant to subparagraph (b) hereof (the "Assets"), including, without
limitation, the following assets:
(1) Assets as specifically listed on Exhibit "A-1" attached hereto
provided however, that the patient list of the Seller at the option of
Purchaser shall be directly assigned to Xxxxxx X. Xxxxxx; and
(2) All of the other tangible and intangible personal property, rights
and interests of Seller of any kind, which are being used on the date
hereof and at the Closing in the operation of the Practice and which are
necessary to conduct the Practice in substantially the same manner as it
has been conducted prior to the date hereof.
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b. It is specifically understood and agreed by the parties hereto that
Seller is not selling, and the Purchaser is not purchasing the following:
(1) Seller's corporate documents, corporate seal, minute book, charter
documents, corporate stock record book, ledgers, bank statements and such
other books and records as pertain to the organization, existence and
capitalization of Seller;
(2) Seller's cash and cash equivalents on hand or in banks,
certificates of deposit, money market funds, securities and similar type
investments; and
(3) Accounts receivable due to Seller prior to the sale of the
Business hereunder. For the purpose of this Agreement, "Accounts
Receivable" shall be evidenced by a list as attached hereto as Exhibit A-2.
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" attached hereto (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".
4. Purchase Price.
a. The purchase price (Purchase Price") payable by Purchaser for the Assets
shall be 733,901 shares of common stock in Union Dental Holdings, Inc., a
publicly traded company on the Over-the-Counter Stock Exchange and traded under
the ticker symbol UDHI (the "Shares"). The Shares are restricted from sale for a
period of one (1) year from the date of this Agreement under Rule 144 of the
Securities & Exchange Commission Act of 1933 (as Amended).
b. Said Purchase Price and the amount of Purchaser's assumption of debt
shall be allocated as follows (the "Allocation"):
Equipment $283,241
Goodwill and other intangible assets $0
c. The parties shall each report federal, state and local and other tax
consequences of the transactions contemplated herein (including the filing of
Internal Revenue Service Form 8594) in a manner consistent with such Allocation
of Purchase Price.
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 located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxx Xxxxxxx, Xxxxxxx 00000, or at such other place as may be mutually agreed
by the Parties. The Closing shall take place simultaneously with the execution
of this Agreement.
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6. Deliveries at Closing.
a. In addition to and without limiting any other provisions of this
Agreement, Seller agrees to deliver to Purchaser at or prior to the Closing:
(1) 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 listed in Exhibit "B" of this Agreement.
(2) Resolutions of Seller authorizing the sale of the Assets.
(3) Such other documents, instruments or certificates as shall be
reasonably requested by Purchaser or its counsel.
b. In addition to, and without limiting any other provisions of this
Agreement, Purchaser agrees to deliver to Seller at the Closing on the Closing
Date:
(1) The Shares.
(2) Resolutions of Purchaser authorizing the Purchase of the Assets,
the Independent Contractor Agreement in the substantially the form attached
hereto as Exhibit "C" (the "Independent Contractor Agreement").
(3) The Independent Contractor Agreement.
(4) An opinion letter from Purchaser's counsel satisfactory to
Seller's attorney opining that (i) Purchaser is qualified under the laws of
the State of Florida to operate a dental practice, and (ii) that the Shares
to be delivered hereunder are in compliance with all Federal and State
securities laws and filings thereto.
(5) Funds in the form of a cashier's check for the full payment of the
Debts listed on Exhibit "B" hereto.
(6) Funds in the amount of Seller's attorney's fees and costs for
representation of Seller. Seller's attorney shall present its invoice prior
to the Closing Date to Purchaser.
(7) Assumption of Seller's lease for the Premises and Release of
Seller and its principals by the landlord of the Premises.
(8) Such other documents or certificates as shall be reasonably
requested by the Seller or its counsel.
c. Purchaser shall deliver to Seller at Closing the sum of Two thousand six
hundred seventy four dollars ($2,647.00) as repayment of the security deposit
under the lease of the Premises (the "Security Deposit") which Purchaser will be
assuming. Seller hereby represents that if the landlord of the Premises refunds
the Security Deposit to Seller, Seller shall promptly return such funds to
Purchaser.
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7. Warranties and Representations. Seller represents and warrants 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 State of Florida, 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.
(e) Title to Assets. 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.
(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 or the Exhibits hereto.
(h) Condition of Assets. The Assets purchased under this Agreement shall be
transferred "as is".
(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
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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.
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 State of Florida and is
licensed by the State of Florida for the practice of dentistry.
(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 have 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 to 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.
(e) Compliance with Securities Laws. Purchaser is in compliance with all
Federal and State securities laws and filings thereto for the issuance and
delivery of the Shares to Seller.
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:
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(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
(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 9, 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,
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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 (B) 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).
(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), (B) 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 9.
10. Miscellaneous.
(a) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing, and shall be deemed duly given if
sent by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the intended recipient as set forth below:
If to Seller: XXXX XXXX-XXXXXXX, D.M.D., P.A.
c/o Xx. Xxxx Xxxx-Xxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxx, Esq.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
If to Purchaser: UNION DENTAL CORP.
c/o Xx. Xxxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
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
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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
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. 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. Except as provided in Section 6 hereof, 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.
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(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.
(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 any
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.
[Signatures on following page]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed and dated as of the date and year first above written.
Seller:
XXXX XXXX-XXXXXXX, D.M.D., P.A.
a Florida professional association
By: /s/Xx. Xxxx Xxxx-Xxxxxxx
------------------------------------
Xx. Xxxx Xxxx-Xxxxxxx, its President
(CORPORATE SEAL)
Purchaser:
UNION DENTAL CORP.
a Florida corporation
By:/s/Xx. Xxxxxx X. Xxxxx
------------------------------------
Xx. Xxxxxx X. Xxxxx, its President
(CORPORATE SEAL)
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Exhibit "A-1"
ASSETS:
Patient List of the Practice and all of the equipment used to maintain and
operate the Practice as described as follows:
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Exhibit "A-2"
Accounts Receivable:
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Exhibit "B"
Debts:
Capital One $15,138.47
Wachovia Bank $49,189.20
HPSC $101,875.05
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Exhibit "C"
Independent Contractor Agreement
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