1
EXHIBIT 2.4
FORM OF
STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of this ______ day of _______________, _______, by and among US
Orthodontic Care, Inc., a Georgia corporation ("Purchaser"), and
_________________, an orthodontist and resident of the state of
________________ ("Seller").
W I T N E S S E T H
WHEREAS, Seller is the sole stockholder of _____________________, a
____________________________ (the "Corporation"), which owns certain assets
used to operate an orthodontic practice in _____________ with offices located
in the facilities set forth in Exhibit A (the "Facilities") attached hereto;
WHEREAS, Seller wishes to sell to Purchaser all of Seller's right,
title and interest in and to all of the outstanding shares of capital stock of
the Corporation (the "Orthodontic Stock"), and Purchaser wishes to buy all of
Seller's right, title and interest in and to the Orthodontic Stock subject to
and upon the terms and conditions set forth herein;
WHEREAS, Seller and Purchaser intend that the sale contemplated
hereunder, together with (i) the acquisition of the other founding practices,
(ii) the merger between Purchaser and Premier Orthodontic Group, Inc.
("Premier"), and (iii) the initial public offering, will constitute an
integrated unitary transaction and will qualify for non-recognition treatment
under Section 351 of the Internal Revenue Code.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt, adequacy, and sufficiency of which are hereby acknowledged, Seller and
Purchaser hereby agree as follows:
SECTION I. PURCHASE AND SALE OF ORTHODONTIC STOCK AND CLOSING.
A. PURCHASE. Upon the terms and conditions set forth herein, Seller
shall sell to Purchaser and Purchaser shall purchase from Seller all of
Seller's right, title and interest in and to the Orthodontic Stock, free and
clear of all liens, charges, encumbrances, claims, options, and other
restrictions of any nature whatsoever.
B. DELIVERY OF ORTHODONTIC STOCK. At Closing (as hereinafter defined)
Seller shall deliver to Purchaser validly issued certificates representing the
Orthodontic Stock, together with stock powers duly executed in blank. Seller
shall
2
execute and deliver such instruments of conveyance, sale or transfer, and shall
take or cause to be taken such further action as the Purchaser or its counsel
shall request at any time or from time to time to vest, confirm or evidence in
the Purchaser good and marketable title to all of the Orthodontic Stock
intended to be conveyed, sold, transferred and delivered to the Purchaser
hereunder.
C. CLOSING DATE. The sale, transfer and delivery of the Orthodontic
Stock pursuant to the terms of this Agreement and the delivery of the Purchase
Price (as hereinafter defined) shall take place as soon as all appropriate
conditions as set forth herein have been fulfilled, but in no event later than
October 15, 1997, at the offices of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.,
First Union Plaza, Suite 1400, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or
at such other place and date as Purchaser and Seller shall agree. The date on
which the last of all payments and deliveries occurs is the "Closing Date", and
such payments and deliveries constitute the "Closing." The parties hereto shall
use their reasonable best efforts to satisfy all appropriate conditions as soon
as possible.
SECTION II. PURCHASE PRICE AND EXPENSES.
A. PURCHASE PRICE. Purchaser hereby agrees to pay to Seller for the
Orthodontic Stock at least one hundred twenty percent (120%) of the
Corporation's 1996 Adjusted Gross Revenues (as hereinafter defined), with the
actual amount to be determined upon completion of an initial public offering of
Purchaser's common stock (the "IPO") (as finally determined, the "Purchase
Price"), which final Purchase Price shall be the Seller's proportional interest
in the sum of the value of all of the orthodontic entities included in the IPO,
which sum shall constitute 62% of the total market capitalization of Purchaser
without giving effect to the IPO. The valuation for determining the final
Purchase Price of each orthodontic entity included in the IPO shall be based on
the adjusted gross revenues and operating results of each such orthodontic
entity for the trailing twelve-month period used in preparation of Purchaser's
registration statement on Form S-1 with respect to the IPO. The Purchase Price
shall be paid as follows:
1. Up to a maximum of 20% of the Purchase Price shall be paid
in cash or immediately available funds at Closing; and
2. The remainder of the Purchase Price to be paid to Seller
in common stock of Purchaser ("Purchaser Stock") to be valued at the
time of the IPO, which IPO shall occur simultaneously with the
Closing.
As used herein, the term "1996 Adjusted Gross Revenue" shall be determined in
accordance with generally accepted accounting principles and shall mean all
fees and charges recorded or booked in fiscal year 1996 by or on behalf of the
Seller as a result of professional orthodontic services personally furnished to
patients by the orthodontist(s) and those under the orthodontist's supervision
and other fees or income generated in their capacity as professionals after any
adjustments for
2
3
uncollectible accounts, professional courtesies and other activities that do
not generate a collectible fee.
B. COSTS AND EXPENSES. Each party to this Agreement shall pay its
fees, costs and expenses and those of its agents, accountants, lawyers and
investment advisors, whether or not the transactions contemplated hereby are
consummated in accordance with the terms of this Agreement.
SECTION III. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER.
Seller hereby represents, warrants and covenants to Purchaser that the
following statements are accurate and complete as of the date hereof and will
be accurate and complete as of the Closing Date, and acknowledges and confirms
that Purchaser is relying upon such representations, warranties and covenants
in connection with the execution, delivery and performance of this Agreement,
notwithstanding any investigation made by Purchaser or on its behalf:
A. ORGANIZATION OF CORPORATION. The Corporation is duly organized,
validly existing and in good standing under the laws of the State of
_______________ and has the power and authority to own and lease its property,
and to carry on its business as and where such business is now conducted. The
Corporation does not own stock or any other equity interest in any other
entity.
B. ORTHODONTIC STOCK. Seller is the sole stockholder of the
Corporation and has good and marketable title to the Orthodontic Stock, and the
right to sell, transfer and deliver the Orthodontic Stock to Purchaser, free
and clear of all liens, encumbrances, claims, security interests, pledges,
agreements and rights of third parties, and upon delivery of the Orthodontic
Stock to Purchaser, Purchaser will hold good and marketable title to the
Orthodontic Stock free and clear of all liens, encumbrances, claims, security
interests, pledges, agreements and rights of third parties whatsoever. Each
share of Orthodontic Stock has been legally and validly issued and fully paid
and nonassessable. No shares of Orthodontic Stock are owned by the Corporation
in treasury. There are no outstanding (a) bonds, debentures, notes or other
obligations the holders of which have the right to vote with the Seller on any
matter, (b) securities of the Corporation convertible into equity interests in
the Corporation, or (c) commitments, options, rights or warrants to issue any
such equity interests in the Corporation, to issue securities of the
Corporation convertible into such equity interests, or to redeem any securities
of the Corporation. No shares of Orthodontic Stock have been issued or disposed
of in violation of the preemptive rights, rights of first refusal or similar
rights of any of the Corporation's stockholders.
C. TITLE TO ASSETS. The Corporation has good and marketable title to
the assets used at the Facilities by the Corporation, free and clear of all
liens,
3
4
encumbrances, claims, security interests, charges, pledges and rights of
others, except as disclosed on Exhibit B.
D. BINDING EFFECT. This Agreement and each of the agreements and
instruments contemplated hereby has been duly and validly executed and
delivered by the Seller and constitutes the legal, valid and binding
obligations of the Seller, enforceable in accordance with its terms.
E. NO CONFLICTS. To the best of Seller's knowledge, the execution,
delivery and performance by the Seller of this Agreement or any agreements
required hereby to be executed by Seller, will not constitute a violation of
any statute, ordinance, judgment, order, decree, regulation or rule of any
court, governmental authority or arbitrator, or any license, permit or
franchise applicable or relating to the Corporation or result in the creation
of any lien upon the Orthodontic Stock or the Corporation's assets pursuant to
the provisions of any of the foregoing.
F. CORPORATION'S ASSETS. Upon Closing, the Corporation's Assets will
be in good condition comparable to the condition existing on the date of this
Agreement, ordinary wear and tear excepted. Seller shall not remove any
property from the Facilities prior to the Closing, except for the purpose of
repair or replacement or in the ordinary course of business, and any such
property or its replacement, as the case may be, shall be property of the
Corporation. Seller shall keep all insurance policies or renewals thereof
affecting or covering the Facilities in full force and effect up to and
including the date of Closing unless the reason for such policies ceases or
such policies are replaced in the ordinary course of business.
G. TAXES. Except as set forth on Exhibit C, the Corporation has timely
filed or caused to be timely filed all federal income tax returns and all other
federal, state, county, local or city tax returns which are required to be
filed, and has paid or caused to be paid all taxes, including interest,
penalties or additions thereto, shown on such returns or on any tax assessment
received by them (including, without limitation, real and personal property
taxes) to the extent that such taxes have become due and payable on or before
the Closing Date. The Corporation has no tax liability, except for real and
personal property taxes for periods as to which such taxes have not yet become
due and payable. No events have occurred which could impose on Purchaser any
liability for any taxes, penalties, or interest due or to become due from
Seller or Corporation. The Corporation and the Seller have not received any
notice that any tax deficiency or delinquency has been asserted against the
Corporation. To the best of the Seller's knowledge, the Corporation has
withheld and paid all taxes required by law to have been withheld and paid by
it.
H. CLAIMS AND LEGAL ACTIONS. Except as set forth on Exhibit D, there
is no claim, legal action, counterclaim, suit, arbitration, governmental
investigation or
4
5
other legal, administrative or tax proceeding, nor any order, decree or
judgment, in progress, pending, or threatened against or relating to the
Seller, the Corporation, or the Facilities, nor does Seller know or have reason
to be aware of any basis for the same.
I. SUBSEQUENT EVENTS. Except as disclosed on Exhibit E, the
Corporation has not, since December 31, 1995: (i) incurred any material
obligation or liability, entered into any contract, lease, license or
commitment, or incurred any indebtedness other than in the ordinary course of
business; (ii) made any payments to or loaned any money to any person or entity
other than in the ordinary course of business consistent with past practices;
(iii) lost or terminated any employee or supplier that has had or may have,
individually or in the aggregate, a material adverse effect on the
Corporation's business; (iv) mortgaged, pledged or subjected to any lien,
charge or other encumbrance any of the assets of the Corporation; (v) sold,
transferred or contracted to sell or transfer any of the Corporation's assets
(other than assets that the Corporation is prohibited from owning under
applicable law subsequent to the Closing, or assets of the Corporation not
directly used in connection with the operation of the Facilities), except in
the ordinary course of business consistent with past practices; (vi) redeemed,
purchased, sold or issued any stock, bonds or other securities to persons other
than the Seller; (vii) declared or paid a distribution, payment or dividend of
any kind on the capital stock of the Corporation; or (viii) suffered any
material adverse change in the business of the Corporation or to the assets of
the Corporation.
J. CONSENTS. Except as set forth on Exhibit F, there are no persons
whose consent is necessary for Seller to consummate the transactions
contemplated by this Agreement. Each party hereto agrees to cooperate with each
other party to obtain the consents, approvals and authorizations of third
parties and governmental authorities that any such party reasonably determines
to be necessary to consummate the transactions contemplated by this Agreement.
K. NO MANAGEMENT CONTRACT OR LEASE. Except for any lease agreement(s)
between Seller and Seller's landlord(s) (copies of which lease agreement(s)
have been provided to Purchaser by Seller), there will be no management
contracts or leases for the Facilities at the time of Closing.
L. ACCURACY OF INFORMATION. No representations, warranties or
covenants by Seller, nor any statement, list or certificate 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 fact or
omits or will omit to state a fact necessary to make the statements contained
therein not misleading in light of the circumstances under which they were
made.
M. NOTICE AS TO CHANGES. Seller will promptly advise Purchaser in
writing of the occurrence of any events of which Seller becomes aware after the
date of
5
6
this Agreement and prior to Closing relating to any of the matters which are
the subject of the covenants, representations and warranties contained herein.
N. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The warranties,
representations and covenants of the Seller contained in this Agreement shall
be true and correct as of the Closing Date with the same force and effect as if
given and made on and as of the date and time of Closing, and such
representations, warranties and covenants shall survive the Closing and the
consummation of the transactions contemplated by this Agreement for the period
of three (3) years.
SECTION IV. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
PURCHASER.
Purchaser hereby represents, warrants and covenants to Seller as
follows, and acknowledges and confirms that Seller is relying upon such
representations, warranties and covenants in connection with the execution,
delivery and performance of this Agreement, notwithstanding any investigation
made by Seller or on his behalf:
A. ORGANIZATION OF PURCHASER. Purchaser is a corporation organized and
in existence under the laws of the State of Georgia and has all requisite
corporate power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
B. AUTHORIZATIONS AND BINDING EFFECT. This Agreement has been duly and
validly authorized, executed and delivered by Purchaser and constitutes the
legal, valid and binding obligation of Purchaser, enforceable in accordance
with its terms. All other corporate proceedings required by the Articles of
Incorporation or the Bylaws of Purchaser or otherwise for the execution and
delivery of this Agreement, and for the consummation of the transactions
contemplated hereby, have been duly taken.
C. NO VIOLATION. The execution, delivery and performance by the
Purchaser of this Agreement or any agreements required hereby to be executed by
Purchaser, will not (i) constitute a violation of, conflict with or constitute
a default under any term or provision of the Purchaser's Articles of
Incorporation or bylaws, each as amended, (ii) to the best of Purchaser's
knowledge, constitute a violation of any statute, ordinance, judgment, order,
decree, regulation or rule of any court, governmental authority or arbitrator
or any license, permit or franchise applicable or relating to the Center or
(iii) result in the creation of any lien upon the Purchaser's assets pursuant
to the provisions of any of the foregoing.
D. ACCURACY OF INFORMATION. No representations, warranties or
covenants by Purchaser or the members, officers or directors of the Purchaser,
nor any statement, list or certificate furnished or to be furnished to the
Seller pursuant hereto, or in connection with the transactions contemplated
hereby, contains or
6
7
will contain any untrue statement of fact or omits or will omit to state a fact
necessary to make the statements contained therein not misleading in light of
the circumstances under which they were made.
E. CLAIMS AND LEGAL ACTIONS. There is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in
progress, pending, or threatened against or relating to Purchaser or the
business or operations of the Purchaser, nor does Purchaser know or have reason
to be aware of any basis for the same.
F. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
warranties and representations of the Purchaser contained in this Agreement
shall be true and correct as of the Closing with the same force and effect as
if given and made on and as of the date and time of Closing, and such
representations and warranties shall survive the Closing and the consummation
of the transactions contemplated by this Agreement for the period of three (3)
years.
G. NOTICE AS TO CHANGES. Purchaser shall promptly advise Seller in
writing of the occurrence of any events of which Purchaser becomes aware after
the date of this Agreement and prior to Closing relating to any of the matters
which are the subject of the covenants, representations and warranties
contained herein. In the event Purchaser withdraws or abandons the registration
statement for the IPO prior to October 15, 1997, Purchaser shall immediately
notify Seller in writing within five (5) business days of such abandonment or
withdrawal.
SECTION V. CONVEYANCES.
At Closing, the Seller shall deliver to Purchaser certificates
evidencing the Orthodontic Stock, together with executed blank stock powers.
Good and marketable title to the Orthodontic Stock shall be conveyed from
Seller to Purchaser free and clear of all liens, claims, charges, encumbrances,
restrictions, and assessments (including, without limitation, any assessments
payable in installments, all of which installments have not been paid),
pledges, agreements and other rights of third parties.
SECTION VI. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser to perform this Agreement are subject to
the satisfaction of the following conditions, each of which may be waived by
Purchaser:
A. ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
OBLIGATIONS. At Closing, Seller shall certify to Purchaser that (i) the
representations and warranties of Seller herein contained are true and correct
as of the Closing Date with the same effect as though made on the Closing Date
(except for changes
7
8
permitted or contemplated by the terms of this Agreement or except to the
extent that such changes expressly relate to an earlier date); and (ii) Seller
has performed all obligations and complied with all covenants required by this
Agreement to be performed or complied with by Seller prior to the Closing Date.
B. DELIVERIES. Seller hereby agrees to, and shall, deliver or cause to
be delivered to the Purchaser at the Closing the following, each of which shall
be in form and substance satisfactory to the Purchaser:
1. CERTIFICATES OF ORTHODONTIC STOCK. The certificate(s)
evidencing all of Seller's Orthodontic Stock of the Corporation
together with executed blank stock powers;
2. OTHER INSTRUMENTS. Such other instruments of transfer and
conveyance as may be necessary to vest in the Purchaser good and
marketable title to the Orthodontic Stock to be sold hereunder and as
shall be reasonably requested by Purchaser; and
3. CERTIFICATES. Certificates or affidavits of Seller in form
and substance satisfactory to Purchaser regarding the accuracy of
Seller's representations, warranties and covenants contained herein.
C. NO INJUNCTION OR RESTRAINING ORDER. No injunction, restraining
order or other order of any federal or state court in the United States that
prevents the consummation of the transactions contemplated hereby shall be
pending or shall have been issued and remain in effect.
D. GOVERNMENTAL CONSENTS, APPROVALS AND AUTHORIZATIONS. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
governmental commission, board or other regulatory body that are required for
or in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have been obtained
or made.
E. INSPECTION AND SURVEY. Purchaser and/or its agents (including
accountants, lawyers and investment bankers) shall have conducted, completed
and be satisfied with (i) a physical plant inspection of the Facilities and an
inspection of the property, and (ii) an inspection of the Corporation's
business, legal and financial books and records, including any leases for
office space, furniture or equipment. Seller shall make such items available to
Purchaser and/or its agents at reasonable times and in such a manner so as not
to unreasonably disrupt the Corporation's or its Facility's normal business.
F. MATERIAL ADVERSE CHANGE. There shall have been no material adverse
change after the date of the most recent financials in the results of
operations, business, assets, properties, liabilities, financial position or
affairs of the
8
9
Corporation, which in the good faith judgment of the Purchaser has had, or will
have a material adverse effect on the Corporation.
G. PUBLIC OFFERING OR FIRM UNDERWRITING. Purchaser shall have
completed a public offering for the sale of at least $10,000,000 of the stock
of Purchaser.
H. CASUALTY LOSSES.On or prior to the time of Closing, the Facilities
and the Corporation shall not have sustained any loss, whether or not insured,
by reason of physical damage to the Facilities caused by fire, flood, accident,
explosions or other calamity which would adversely affect the carrying on of
its business in the normal and regular course.
I. ACCOUNTING TREATMENT. Purchaser shall have received approval from
its auditors and an indication of no objection from the Securities and Exchange
Commission (the "SEC") as to Purchaser's and the Center's, along with other
orthodontic practices, "roll-up" accounting treatment, on terms acceptable to
Purchaser.
J. EMPLOYMENT AGREEMENTS. Seller and any orthodontist(s) who deliver
patient care at the Facilities on average more than ten (10) days per month
shall enter into five (5) year employment agreements after the consummation of
the transactions contemplated hereby, which contain a non-competition agreement
with respect to Purchaser.
K. CORPORATION TRANSACTIONS. Seller shall file with the appropriate
Secretary of State an amendment to the Corporation's Articles of Incorporation
and shall take such other action as may be necessary to change the
Corporation's status and purpose to that of a general business corporation in
accordance with all applicable laws, rules and regulations. Seller shall form a
new professional entity ("New Entity") under which Seller shall conduct its
orthodontic practice at the Facilities. In addition, the New Entity shall (i)
own any assets of the Corporation which applicable law prohibits Purchaser from
owning, (ii) enter into a twenty (20) year service or consulting agreement with
Purchaser, and (iii) enter into five (5) year employment agreements (as
described in Section 6.10) with Seller and all orthodontists who deliver
patient care at the Facilities on average more than ten (10) days per month, or
who have an equity interest in New Entity.
SECTION VII. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER.
The obligations of Seller to perform this Agreement are subject to the
satisfaction of the following conditions, each of which may be waived by
Seller:
A. ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
OBLIGATIONS. At Closing, Purchaser shall certify to Seller that (i) the
representations and warranties of the Purchaser herein contained are true and
correct as of the Closing Date with the same effect as though made on the
Closing Date (except for
9
10
changes permitted or contemplated by the terms of this Agreement or except to
the extent that they expressly relate to an earlier date); and (ii) Purchaser
has performed all obligations and complied with all covenants required by this
Agreement to be performed or complied with by it prior to the Closing Date.
B. DELIVERY OF THE PURCHASE PRICE. Purchaser shall have delivered to
Seller the Purchase Price, as described in Section 2.01.
C. GOVERNMENTAL CONSENTS, APPROVALS AND AUTHORIZATIONS. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
governmental commission, board or other regulatory body that are required for
or in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have been obtained
or made.
D. NO INJUNCTION OR RESTRAINING ORDER. No injunction, restraining
order or other order of any federal or state court in the United States that
prevents the consummation of the transactions contemplated hereby shall be
pending or shall have been issued and remain in effect.
E. INITIAL PUBLIC OFFERING. Purchaser shall have completed the IPO on
or before October 15, 1997.
SECTION VIII. PRORATIONS AND ADJUSTMENTS.
The following items shall be adjusted based on the Closing Date on a
pro rata basis between Seller and Purchaser at the time of the Closing or after
the Closing as agreed upon by Purchaser and Seller:
1. Personal property ad valorem taxes on assets retained by the
Corporation for the 12 month period succeeding the applicable
tax xxxx due date;
2. Charges for electricity, gas, water and sewer and other
utilities to be based on projections from most recent
invoices or on recent meter readings; and
3. Such other items as may be agreed upon by Seller and
Purchaser.
SECTION IX. FEDERAL SECURITIES LAW.
A. INVESTMENT REPRESENTATION. Seller acknowledges that the shares of
Purchaser Stock to be delivered to the Seller at the Closing pursuant to this
Agreement have not been and will not be registered under the Securities Act of
1933 ("1933 Act") and may not be sold, transferred, pledged or otherwise
disposed of in the absence of an effective registration statement covering the
10
11
shares under the 1933 Act and applicable state securities laws, or unless an
exemption from such registration is available and a legal opinion to that
effect is delivered to and accepted by the Purchaser. The Purchaser Stock to be
acquired by the Seller hereunder is being acquired solely for Sellers' own
account, for investment purposes only and with no present intention of
distributing, selling or otherwise disposing of it in connection with a
distribution.
B. COMPLIANCE WITH LAW. Seller represents and warrants that none of
the shares of Purchaser Stock issued to Seller will be offered, sold, assigned,
pledged, hypothecated, transferred or otherwise disposed of, except after full
compliance with all of the applicable provisions of the 1933 Act and the rules
and regulations of the SEC and applicable state securities laws and
regulations. All certificates evidencing shares of Purchaser Stock issued
hereunder shall bear the following restrictive legend, as well as any legend
required by the securities or blue sky laws of the state where Purchaser
resides:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AFTER RECEIPT
OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT AN EXEMPTION
FROM REGISTRATION IS AVAILABLE UNDER APPLICABLE SECURITIES LAWS.
C. INVESTMENT RISK. Seller is able to bear the economic risk of an
investment in Purchaser Stock acquired pursuant to this Agreement and can
afford to sustain a total loss of such investment and have such knowledge and
experience in financial and business matters that Seller represents and
warrants that Seller is capable of evaluating the merits and risks of the
proposed investment and therefore have the capacity to protect Seller's
interests in connection with the acquisition of Purchaser Stock. Seller or his
representatives have had an adequate opportunity to ask questions and receive
answers from Purchaser concerning any and all matters relating to Purchaser and
the transaction described herein.
D. ACCREDITED INVESTOR STATUS. Seller represents and warrants that
Seller is an "accredited investor" as defined in Rule 501(a) promulgated under
the 1933
Act.
E. PIGGYBACK REGISTRATION RIGHTS. Purchaser has no obligation to
register the shares of Purchaser Stock that Seller will receive hereunder.
Provided, however, in the event Purchaser, at any time within 24 months after
the Closing, contemplates and undertakes a public offering of its shares of
common stock and the filing of a registration statement with the SEC in
connection therewith,
11
12
Purchaser shall notify the Seller in writing of the proposed offering and of
any material terms and conditions of the offering known to Purchaser. Purchaser
shall use all reasonable efforts to have included in such registration
statement all or any portion of the shares distributed to Seller hereunder,
subject, however, to such terms, conditions and limitations (including but not
limited to the number of shares that Seller may offer to sell in such
registration statement) as any underwriter retained by Purchaser in connection
with such offering may require, and provided that the public offering and sale
of such shares is not restricted by any legend or other condition imposed by
any state securities commissioner. Seller shall take all such action and
execute all such documents including, but not limited to, the execution and
delivery of an underwriting agreement in form and substance in all material
respects the same as the underwriting agreement to be signed by Purchaser, as
may be requested by Purchaser. The cost of such public offering shall be borne
by Purchaser, except that Seller shall pay its proportionate share of
underwriters' commissions and discounts and the costs and fees of any
attorneys, accountants and other persons retained by Seller in connection with
the offering. The provisions of this Section 9.5 shall not apply to
registration statements filed in connection with employee stock purchase and
option programs by Purchaser or in connection with actual or proposed
acquisitions by Purchaser. Seller shall notify Purchaser of its election to
exercise its rights herein specified in writing within thirty (30) days after
the aforesaid written notice to the Seller by Purchaser.
SECTION X. TERMINATION.
A. RIGHT OF TERMINATION. This Agreement and the transactions
contemplated by this Agreement may be terminated at any time prior to the
Closing Date:
1. By the mutual consent of the Purchaser and the Seller.
2. By the Purchaser in the event that the conditions set
forth in Sections 3 and 6 of this Agreement shall not have been
satisfied or waived by the Closing.
3. By the Seller in the event that the conditions set forth
in Sections 4 and 7 of this Agreement shall not have been satisfied or
waived by the Closing.
4. By either party upon written notice after October 15,
1997.
5. By the Seller upon receipt of the Purchaser's notice of
withdrawal or abandonment of the registration statement for the IPO by
October 15, 1997 referred to in Section 4.7 hereof.
12
13
B. NOTICE OF TERMINATION. Notice of termination of this
Agreement shall be given by the party so terminating to the other
parties hereto, in accordance with the provisions of Section 12 of
this Agreement.
C. EFFECT OF TERMINATION. In the event that this Agreement is
terminated pursuant to this Section 10, this Agreement shall be void
and have no further force and effect, without any liability on the
part of any of the parties hereto (or their respective members,
stockholders, directors or officers, if any).
SECTION XI. DESCRIPTIVE HEADINGS.
The descriptive headings of this Agreement are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
SECTION XII. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed given if (a) delivered by hand, (b) mailed by registered or
certified mail (return receipt requested), (c) telecopied and immediately
confirmed, or (d) sent by overnight delivery, to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice) and shall be deemed given on the date on which so hand-delivered or so
telecopied, on the third business day following the date on which so mailed, if
deposited in a regularly-maintained receptacle for United States mail, or on
the first business day following the date on which sent by overnight delivery:
If to Purchaser:
US Orthodontic Care, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: P. Xxxxx Xxxxxxx, CEO
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
First Union Plaza, Suite 1400
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. XxxxXx, Esq.
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
13
14
If to Seller:
Telecopier: ______________________
Telephone: _______________________
SECTION XIII. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
SECTION XIV. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of __________________ without regard for
its principles of conflicts of laws.
SECTION XV. ASSIGNABILITY.
This Agreement shall not be assignable by the Seller without the prior
written consent of the Purchaser. This Agreement shall be assignable by
Purchaser to (i) any person, firm or corporation that controls or is under
common control with Purchaser, (ii) Premier or any person, firm or corporation
that controls or is under common control with Premier, or (iii) any entity that
results from a merger or other combination between Purchaser and Premier
("Newco") and any person, firm or corporation that controls or is under common
control with Newco.
SECTION XVI. WAIVERS AND AMENDMENTS.
Any term or provision of this Agreement may be waived at any time by
the party that is entitled to the benefits thereof, and any term or provision
of this Agreement may be amended or supplemented at any time by the mutual
consent of Purchaser and Seller, except that any waiver of any term or
condition, or any amendment or supplementation, of this Agreement must be in
writing. A waiver of any breach or failure to enforce any of the terms or
conditions of this Agreement shall not in any way affect, limit or waive a
party's rights hereunder at any time to enforce strict compliance thereafter
with every term or condition of this Agreement.
SECTION XVII. THIRD PARTY RIGHTS.
14
15
Notwithstanding any other provision of this Agreement, this Agreement
shall not create any rights or benefits on behalf of any employee of Seller or
the Corporation, third party or other person, and this Agreement shall be
effective only as between the parties hereto, their successors and permitted
assigns.
SECTION XVIII. ENTIRE AGREEMENT.
This Agreement (including the Exhibits, agreements, documents and
instruments referred to herein) constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and
oral, among the parties, or any of them with respect to the subject matter
hereof.
SECTION XIX. SEVERABILITY.
In the event that any one or more of the provisions contained in this
Agreement shall be declared invalid, void or unenforceable, the remainder of
the provisions of this Agreement shall remain in full force and effect.
SECTION XX. EXHIBITS.
The parties shall have until Closing to agree upon all information to
be filed as a part of the Exhibits to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set forth above.
SELLER:
By:
--------------------------------------
Name:
---------------------------------
PURCHASER:
US ORTHODONTIC CARE, INC.
By:
---------------------------------------
Name:
Title:
15
16
SCHEDULE 2.4
OrthAlliance has succeeded to the rights to agreements substantially
identical to Exhibit 2.4 as follows:
1. Stock Purchase and Sale Agreement with Xxxxx X. Xxxxxxxx, D.M.D.
2. Stock Purchase and Sale Agreement with Xxxxxxx Xxxxxxxx, D.D.S.,
and Xxxxx Xxx Xxxxxx, D.D.S.
3. Stock Purchase and Sale Agreement with Xxxxxx X. Xxxxxxxxxxx,
D.D.S.
4. Stock Purchase and Sale Agreement with Xxxx X. Xxxxxxx, D.D.S.
5. Stock Purchase and Sale Agreement with Xxxxxx X. Xxxxxxx, D.D.S.,
M.S.
6. Stock Purchase and Sale Agreement with Xxxxxx X. Xxxxxxxx, D.D.S.
7. Stock Purchase and Sale Agreement with Xxx X. Xxxxx, D.M.D.
8. Stock Purchase and Sale Agreement with Xxxxxx X. Xxxxxxx, D.D.S.
and Xxxx X. Xxxxx, D.D.S.
9. Stock Purchase and Sale Agreement with Xxxxxxx X. Xxxxxxxxx, D.M.D.
10. Stock Purchase and Sale Agreement with Xxxxxxx X. Xxxxxxx, D.D.S.,
and Xxxxxx Xxxxxx, D.D.S.
11. Stock Purchase and Sale Agreement with Xxxxxx X. Silver, D.D.S.
12. Stock Purchase and Sale Agreement with Xxxxxx X. Xxxxxxxx, D.D.S.
13. Stock Purchase and Sale Agreement with Xxxx X. Xxxxxx, D.D.S.
14. Stock Purchase and Sale Agreement with Xxxx Xxxxxxx, D.D.S.
