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EXHIBIT 10(q)
VALLEY FORGE DENTAL ASSOCIATES, INC.
c/o Foster Management Company
0000 Xxxx Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
September 19, 1995
Xxxxxx X. Xxxxxxx, D.D.S.
0000 Xxxxxxxxx Xx.
Xxxxxx, Xxxxxxxx 00000
Dear Xxx:
The undersigned, Valley Forge Dental Associates, Inc., a
Delaware corporation (the "Company"), and you (the "Purchaser"), hereby agree as
follows:
1. Authorization and Sale of the Shares. The Company has
authorized the issuance to the Purchaser of and proposes to sell to the
Purchaser pursuant hereto an aggregate of 50,000 shares (collectively the
"Shares" and individually a "Share") of its common stock, $.01 par value (the
"Common Stock"), at a price of $.10 per Share.
2. Purchase of the Shares by the Purchaser. Subject to the
terms and conditions hereof, the Purchaser hereby agrees to purchase the Shares
from the Company in reliance upon its representations and warranties herein
contained, and the Company hereby agrees to sell the Shares to the Purchaser in
reliance upon his representations and warranties herein contained, at an
aggregate purchase price (the "Purchase Price") of $5,000, in cash.
3. Representations, Warranties, and Agreements of the Company.
The Company represents and warrants to, and agrees with, the Purchaser as
follows:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
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(b) The Company has duly authorized the execution and delivery
of this Agreement and the issuance and delivery of the Shares and this Agreement
constitutes a valid and legally binding agreement of the Company enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, or other laws affecting generally the enforceability of
creditors' rights and by limitations on the availability of equitable remedies.
The Shares, when issued and delivered in accordance with this Agreement, shall
have been duly issued and shall be validly outstanding, fully paid and
nonassessable shares of the Common Stock.
(c) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated herein shall violate any
provision of the Certificate of Incorporation or By-laws of the Company or any
statute, ordinance, regulation, order, judgment or decree of any court or
governmental agency, or conflict with or result in any breach of any of the
terms of, constitute a default under, or result in the termination of or the
creation of any lien pursuant to the terms of, any contract or agreement to
which the Company is a party or by which the Company or any of its assets is
bound.
4. Representations, Warranties, and Agreements of the
Purchaser. The Purchaser hereby represents and warrants to, and agrees with, the
Company as follows:
(a) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated herein shall conflict with or
result in any breach of any of the terms of, constitute a default under, or
result in the termination of or the creation of any lien pursuant to the terms
of, any contract or agreement to which the Purchaser is a party or by which he
or any of his assets is bound.
(b) (i) The Purchaser understands that by the terms of this
Agreement he is purchasing shares of Common Stock issued and delivered by the
Company without compliance with the registration requirements of the Securities
Act of 1933, as amended (the "Securities Act") or the securities laws of any
state, under and in reliance on exemptions from the registration requirements of
the Securities Act and such laws, and without the approval, disapproval, or
passing on the merits by any regulatory authority; that for purposes of such
exemptions, the Company will rely upon the representations, warranties and
agreements of the Purchaser contained herein; and that such non-compliance with
registration requirements is not permissible unless such
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representations and warranties are correct and such agreements performed.
(ii) The Purchaser understands that the Company is under no
obligation to effect a registration under the Securities Act of the Shares to be
purchased by him hereunder. The Purchaser understands that, under existing rules
of the Securities and Exchange Commission (the "Commission"), he may be unable
to sell any of the Shares except to the extent that the Shares may be sold (A)
in a bona fide private placement to a purchaser who shall be subject to the same
restrictions on sale or (B) subject to the restrictions contained in Rule 144
under the Securities Act.
(iii) As a Vice President of the Company, the Purchaser is
fully familiar with the business, properties and financial condition of the
Company, and acknowledges that he has been afforded access to such additional
information concerning the Company as he considers necessary or appropriate to
make an informed investment decision. The Purchaser is an "accredited investor"
as such term is defined in Rule 501 under the Securities Act.
(iv) The Purchaser is a sophisticated investor familiar with
the type of risks inherent in the acquisition of securities such as the Common
Stock, and his financial position is such that he can afford to retain the
Shares for an indefinite period of time without realizing any direct or indirect
cash return on his investment.
(v) The Purchaser is acquiring the Shares pursuant to this
Agreement for his own account and not with a view to or for sale in connection
with the distribution thereof within the meaning of the Securities Act. The
Purchaser shall not effect a distribution of any Shares until either (A) he has
received the opinion of counsel for the Company that registration under the
Securities Act is not required or (B) a registration statement under the
Securities Act covering such Shares and the disposition thereof has become
effective under the Securities Act, and the Purchaser agrees that the
certificates evidencing the Shares may bear a restrictive legend to the
foregoing effect.
5. Restrictions on Transferability of the Shares. The
Purchaser hereby agrees that the Purchaser shall not sell, assign, transfer,
gift, devise, bequeath, deliver, pledge, hypothecate or otherwise dispose of any
of the Shares, except as provided for in this Agreement. Any disposition or
purported disposition of Shares in violation
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of this Agreement shall be null and void and shall not be recorded on the books
of the Company. Notwithstanding the foregoing:
(a) Disposition of Vested Shares and Shares which are not
Vested Shares. Shares which are "vested" in accordance with the following
schedule (the "Vested Shares") may be disposed of in the manner set forth in
Subsection (b) or (d) of this Section 5.
Cumulative percentage
of Shares which are
Vested Shares
On or before September 18, 1996....... 0%
September 19, 1996 to
September 18, 1997.................... 20
September 19, 1997 to
September 18, 1998.................... 40
September 19, 1998 to
September 18, 1999.................... 60
September 19, 1999 to
September 18, 2000.................... 80
On or after September 19, 2000......... 100
Shares which are not Vested Shares (the "Unvested Shares") may
be disposed of only in the manner set forth in Subsection (c) or (d) of this
Section 5.
(b) Vested Shares.
(i) Vested Shares held by the Purchaser may be transferred by
the Purchaser provided that the Purchaser first complies with the right to
purchase set forth in this Subsection (b). The Company shall have a right to
purchase any Vested Shares proposed to be sold by the Purchaser on the terms set
forth in this Subsection (b).
(ii) If the Purchaser wishes to dispose of Vested Shares, the
Purchaser shall first obtain a bona fide written offer (the "Offer") for the
purchase of the Vested Shares which he wishes to dispose of. Such Offer shall be
for cash or promissory notes only. Promptly upon receipt of the Offer, the
Purchaser shall give notice to the Company (the "Offer Notice") of his intent to
dispose of Vested Shares, which Offer Notice shall specify the name of the
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proposed purchaser, the number of Vested Shares (the "Offered Securities") the
Purchaser desires to dispose of and the price and terms of payment of such
proposed disposition. Upon receipt of the Offer Notice, the Company shall have
the right to purchase all (but not less than all) of the Offered Securities at
the price and on the terms of the Offer. Such right must be exercised by the
Company by giving notice to that effect to the Purchaser within a period of 20
days after the date of receipt of the Offer Notice (any such notice of the
exercise of such right being herein referred to as an "Acceptance Notice").
(iii) In the event of the exercise by the Company of its right
to purchase pursuant to this Subsection (b), the Acceptance Notice shall specify
the time and date for purchase of the Offered Securities (the "Share Closing")
which shall be not more than 30 days after the expiration of the 20-day period
set forth in clause (b)(ii). The Purchaser shall deliver to the Company at the
Share Closing, which shall be held at the business headquarters of the Company,
the Offered Securities in due and proper form for transfer, against payment of
the purchase price by the Company.
(iv) If the Company shall fail or decline to agree to purchase
the Offered Securities within the 20-day period provided for in clause (b)(ii),
then the Purchaser shall have the right and privilege to sell all (but not less
than all) the Offered Securities, within 60 days after the expiration of such
20-day period, to the bona fide purchaser named in the Offer Notice, at the
price and on terms of payment specified in the Offer. If, for any reason, the
Offered Securities are not sold within such 60-day period, the Offered
Securities shall again become subject to the terms and conditions of this
Agreement.
(v) If, as of the Share Closing, any amount of principal of
and interest on any indebtedness of the Purchaser to the Company shall then be
outstanding, payment of the purchase price for the Offered Securities at the
Closing shall be made, at the Company's option, by a credit against such
indebtedness to the extent of the principal thereof and interest thereon then
outstanding (whether or not such principal and interest is then due and
payable).
(vi) The Company's right to purchase set forth in this
Subsection (b) shall terminate upon the occurrence of the closing of the initial
sale by the Company to the public of shares of the Common Stock pursuant to a
registration statement filed under the Securities Act (other
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than a registration statement covering securities of the Company to be issued
pursuant to an employee benefit plan).
(c) Termination of the Purchaser's Employment. (i) If the
Purchaser shall cease to be employed by the Company, for any reason whatsoever,
the Company shall have the right (but not the obligation) to purchase from the
Purchaser all or any portion of the Unvested Shares owned by the Purchaser at
the time the Purchaser ceases to be employed by the Company. Such right to
purchase shall be exercisable by written notice to that effect given by the
Company to the Purchaser within 60 days after the Purchaser has ceased to be
employed by the Company, as aforesaid. Upon the giving of such written notice,
the Purchaser shall for all purposes cease to be a stockholder of the Company as
to the Unvested Shares covered by such notice and shall have no rights against
the Company or any other person in respect of such Unvested Shares except the
right to receive payment for such Unvested Shares in accordance herewith.
Notwithstanding the provisions of Subsection (a) of this Section 5, Unvested
Shares not so purchased by the Company shall upon the expiration of such 60-day
period become Vested Shares.
(ii) At the time and date specified in the notice given by the
Company referred to in clause (c)(i), which date shall in no event be more than
15 days after the expiration of the 60-day period for the exercise of the right
to purchase set forth therein, the Purchaser shall deliver to the Company, at
the business headquarters of the Company, the Unvested Shares to be sold by the
Purchaser in due and proper form for transfer, against payment by the Company of
the purchase price therefor, as determined in accordance with clause (c)(iv).
(iii) If at the time of payment of the purchase price referred
to in clause (c)(ii), any amount of principal of or interest on any indebtedness
of the Purchaser to the Company shall be outstanding, payment of the purchase
price for the Unvested Shares shall be made, at the Company's option, as a
credit against such indebtedness to the extent of the principal thereof and
interest thereon then outstanding (whether or not such principal and interest is
then due and payable).
(iv) The per Share purchase price for the Unvested Shares
payable by the Company pursuant to clause (c)(ii) shall be $0.10. The number of
Unvested Shares to be purchased and the per Share purchase price pursuant to
this clause (c)(iv) shall be appropriately adjusted by the Board of Directors of
the Company to reflect any subdivision or
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combination of the Common Stock of the Company or any stock dividend or like
event.
(d) Disposition to Family Members. Shares held by the
Purchaser may be transferred by the Purchaser to or for the benefit of the
Purchaser or a member of his immediate family. For the purpose of this
Agreement, the term "immediate family" of the Purchaser shall mean his spouse
and children (and the direct lineal descendants of his children). It shall be a
condition to the validity of any transfer of Shares permitted by the provisions
of this Subsection (d) that the transferee shall execute a copy of this
Agreement, shall hold such Shares subject to the provisions of this Agreement,
and shall make no further transfer of such Shares, except in compliance with the
terms and conditions of this Agreement.
6. Voting Agreement. (a) Except as hereinafter set forth, the
Purchaser agrees that, subject to the laws of the State of Delaware and the
terms of this Agreement, from the date of this Agreement until October 1, 2000
the Purchaser will vote all shares of Common Stock owned by the Purchaser in
favor of a Board of Directors which shall include Xxxx X. Xxxxxx and such other
persons designated by Xxxx X. Xxxxxx as shall together with Xxxx X. Xxxxxx
constitute a majority of such members.
(b) Notwithstanding any of the other terms or conditions set
forth in this Agreement, the parties hereto agree that in the event that the
Company or any stockholder of the Company shall sell any securities of the
Company to the public in a registered public offering (other than pursuant to a
registration statement on Form S-8) or pursuant to the exemption from
registration contained in Regulation A under the Securities Act, the voting
agreement set forth in this Section 6 shall terminate.
7. Come Along/Take Along.
(a) (i) In the event that Business Development Capital Limited
Partnership-III, a Massachusetts limited partnership ("BDC-III"), Abbingdon
Venture Partners Limited Partnership, a Connecticut limited partnership
("Abbingdon-I"), Abbingdon Venture Partners Limited Partnership-II, a Delaware
limited partnership ("Abbingdon-II") and Abbingdon Venture Partners Limited
Partnership-III, a Delaware limited partnership ( "Abbingdon-III" and together
with BDC-III, Abbingdon-I and Abbingdon-II, the "Partnerships"), propose to
transfer substantially all of the shares of the Common Stock held by them (a
"Sale of Securities") other than to the public for
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cash pursuant to a registration statement filed under the Securities Act, then
the following provisions of this Section 7 shall apply.
(ii) The Partnerships shall permit the Purchaser, or cause the
Purchaser to be permitted, to sell the same proportionate number of shares of
the Common Stock held by the Purchaser as the Partnerships shall sell of the
shares of the Common Stock held by the Partnerships, for the same consideration
and otherwise on the same terms and conditions to be received by the
Partnerships in the Sale of Securities.
(iii) The Partnerships shall have the right to request the
Purchaser to sell or cause to be sold the number of shares of the Common Stock
held by the Purchaser which bears the same proportion to the number of shares of
the Common Stock then held by the Purchaser as the number of shares of the
Common Stock being sold by the Partnerships bears to the total number of shares
of the Common Stock owned by the Partnerships (a "Purchaser Request").
(iv) Upon receipt by the Purchaser of a Purchaser Request, the
Purchaser will sell or will cause to be sold the appropriate number of shares of
the Common Stock held by the Purchaser for the consideration and otherwise on
the same terms and conditions received by the Partnerships.
(b) The obligations of the Partnerships under Section 7(a)
hereof to afford the Purchaser, or cause the Purchaser to be afforded, the
rights referred to therein will be discharged if the Purchaser is given written
notice which allows the Purchaser ten business days to exercise such rights (by
written reply addressed to such person as may be designated in the notice, and
if requested in such notice, sent by registered mail, return receipt requested),
and within such ten business day period the Purchaser has not given notice of
exercise of such rights.
(c) All rights and obligations created by this Section 7 shall
terminate upon the earlier to occur of (i) the written agreement of the parties
hereto, or (ii) the date on which a registration statement (other than on Form
S-8 or the successor to such Form) covering an underwritten public offering of
the Company's Common Stock for cash is declared effective by the Commission,
provided that this Agreement shall be reinstated if such public offering is not
consummated within 20 days after such effective date.
8. The Closing. As soon as practicable after the execution and
delivery of this Agreement, the Purchaser
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shall cause to be delivered to the Company a check or checks payable to the
order of the Company in the amount of $5,000, in payment of the Purchase Price.
Promptly upon receipt of such check or checks, the Company shall deliver to the
Purchaser a stock certificate registered in the name of the Purchaser and
representing the Shares.
9. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to purchase the Shares pursuant hereto are subject,
at his option, to the accuracy of the representations and warranties of the
Company contained in Section 3.
10. Conditions to the Obligations of the Company. The
obligations of the Company to sell the Shares pursuant hereto are subject, at
its option, to the accuracy of the representations and warranties of the
Purchaser contained in Section 4.
11. Expenses. Each of the parties hereto shall pay its own
expenses in connection with the preparation, execution and delivery of this
Agreement.
12. Notice. Any notice under this Agreement shall be in
writing and delivered personally or sent by certified mail, return receipt
requested, addressed, as the case may be, (i) to the Company at its address set
forth at the head of this Agreement or such other address as may hereafter be
designated by the Company by notice to the Purchaser in the manner provided
herein; and (ii) to the Purchaser at his address set forth at the head of this
Agreement or such other address as may hereafter be designated by the Purchaser
by notice to the Company in the manner provided herein. All notices personally
delivered shall be deemed to have been given when delivered and all notices sent
by mail shall be deemed to have been given three business days after mailing.
13. Successors. The terms, covenants and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, legal representatives, successors, permitted
transferees and assigns.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
15. Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto, and no
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modifications of or amendments to this Agreement shall be binding on the parties
hereto unless in writing and signed by them.
16. Integration. This Agreement supersedes all prior
understandings, negotiations, and agreements relating to the subject matter
hereof.
17. Severability. If any provision herein contained shall be
held to be illegal or unenforceable, such holding shall not affect the validity
or enforceability of the other provisions of this Agreement.
18. Reorganization, Etc. The provisions of this Agreement
shall apply mutatis mutandis to any shares or other securities resulting from
any stock split or reverse split, stock dividend, reclassification, subdivision,
consolidation or reorganization of any shares or other securities of the
Company, to any shares or other securities resulting from any recapitalization,
consolidation, merger or reorganization of the Company and to any shares or
other securities of the Company or any successor company or of any parent of
such successor company which may be received by the Purchaser by virtue of his
ownership of any shares of Common Stock of the Company.
19. Captions. The captions appearing herein are for the
convenience of the parties only and shall not be construed to affect the meaning
of the provisions of this Agreement.
* * *
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If you are in agreement with the foregoing, please execute and
deliver to the undersigned the enclosed counterpart of this Agreement, whereupon
this Agreement shall become a binding agreement between us.
Very truly yours,
VALLEY FORGE DENTAL ASSOCIATES, INC.
By /s/ Xxxxxxx X. Xxxx
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Accepted and agreed to as
aforesaid:
/s/ Xxxxxx X. Xxxxxxx, D.D.S.
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Xxxxxx X. Xxxxxxx, D.D.S.
The undersigned are executing
this Agreement to indicate
their agreement to Section 7
hereof:
BUSINESS DEVELOPMENT CAPITAL
LIMITED PARTNERSHIP-III
By: BDC-III Partners, general
partner
By /s/ Xxxxxxx X. Xxxx
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ABBINGDON VENTURE PARTNERS
LIMITED PARTNERSHIP
By: BDC-III Partners, general
partner
By /s/ Xxxxxxx X. Xxxx
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ABBINGDON VENTURE PARTNERS
LIMITED PARTNERSHIP-II
By: Abbingdon-II Partners, general
partner
By /s/ Xxxxxxx X. Xxxx
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ABBINGDON VENTURE PARTNERS
LIMITED PARTNERSHIP-III
By: Abbingdon-II Partners, general
partner
By /s/ Xxxxxxx X. Xxxx
----------------------------
