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EXHIBIT 10.8
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ASSET CONTRIBUTION AGREEMENT
by and among
MONARCH DENTAL CORPORATION
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
and
▇▇▇ ▇. ▇▇▇▇▇, III, D.D.S.
As of February 5, 1996
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ASSET CONTRIBUTION AGREEMENT
INDEX
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ARTICLE 1. CONTRIBUTION OF ASSETS . . . . . . . . . . . . . . . . . . . . 2
1.1 Contribution of Assets . . . . . . . . . . . . . . . . . . . . 2
1.2 Time and Place of Closing . . . . . . . . . . . . . . . . . . 3
1.3 Certain Closing Deliveries . . . . . . . . . . . . . . . . . . 3
1.4 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Allocation of Purchase Price . . . . . . . . . . . . . . . . . 4
1.6 Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2A. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇. . . . . . . . . . . 4
2A.1 Making of Representations and Warranties . . . . . . . . . . . 4
2A.2 Authority; Noncontravention . . . . . . . . . . . . . . . . . 4
2A.3 Transfer of Title . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 2B. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇ . . . . . . . . . . . 5
2B.1 Making of Representations and Warranties . . . . . . . . . . . 5
2B.2 Authority; Noncontravention . . . . . . . . . . . . . . . . . 6
2B.3 Transfer of Title . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 2C. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇ AND ▇▇▇▇▇. . . . . . 7
2C.1 Investment Representations . . . . . . . . . . . . . . . . . . 7
ARTICLE 3. COVENANTS OF ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ . . . . . . . . . . . . . . . . 8
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . . . 8
4.1 Making of Representations and Warranties . . . . . . . . . . . 8
4.2 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 5. SURVIVAL OF REPRESENTATIONS, WARRANTIES, ARRANGEMENTS,
COVENANTS AND OBLIGATIONS . . . . . . . . . . . . . . . . . . 9
ARTICLE 6. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1 Fees, Expenses and Certain Taxes . . . . . . . . . . . . . . . 9
6.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 9
6.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 10
6.5 Assignability; Binding Effect . . . . . . . . . . . . . . . . 11
6.6 Captions and Gender . . . . . . . . . . . . . . . . . . . . . 11
(i)
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6.7 Execution in Counterparts . . . . . . . . . . . . . . . . . . 11
6.8 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.9 Consent to Jurisdiction; Certain Remedies . . . . . . . . . . 11
6.10 Certain Definitions . . . . . . . . . . . . . . . . . . . . . 11
Schedules
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Schedule 1.1(a)(v) - Trademarks
Schedule 1.5 - Allocation of Purchase Price
(ii)
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ASSET CONTRIBUTION AGREEMENT
ASSET CONTRIBUTION AGREEMENT entered into as of February 5, 1996 by and
among Monarch Dental Corporation, a Delaware corporation ("Company"), ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, D.D.S. ("▇▇▇▇▇▇▇") and ▇▇▇ ▇. ▇▇▇▇▇, III, D.D.S. ("▇▇▇▇▇").
W I T N E S S E T H
WHEREAS, subject to the terms and conditions hereof, the Company wishes
to acquire certain assets owned by each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ and ▇▇▇▇▇▇▇ and
▇▇▇▇▇ wish to contribute such assets to the Company in exchange for shares of
Common Stock and cash in a transaction that together with the transaction
contemplated by the MacGregor Asset Contribution Agreement and the TA Purchase
Agreement (each as defined below) is intended to qualify as an exchange under
Section 351 of the Code; and
WHEREAS, simultaneously herewith the Company has entered into (i) an
Asset Contribution Agreement (the "MacGregor Asset Contribution Agreement") by
and between the Company, Shears Vanguard, Ltd., Shears Vanguard, Inc., Shears
Vanguard General, Inc., Shears Vanguard SMI, Inc., MDC Dental, Inc. and ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, pursuant to which in exchange for shares of Common Stock and
cash and the assumption of specified liabilities the Sellers thereunder will
contribute the assets comprising the MacGregor Dental Centers business in a
transaction that together with the transaction contemplated by this Agreement
and the TA Purchase Agreement is intended to qualify as an exchange under
Section 351 of the Internal Revenue Code of 1986, as amended (the "Code"); (ii)
the Stock Purchase Agreement dated as of February 5, 1996, by and between the
Company and the purchasers named therein (the "TA Purchase Agreement"); (iii)
the Loan Agreement dated as of February 5, 1996 among Monarch Dental
Associates, L.P., MacGregor Dental Associates, L.P., NationsBank of Texas,
N.A., as Agent, NationsBank of Texas, N.A. and other entities designated
therein as Lenders and related documents entered in connection therewith (the
"Bank Financing"); and (iv) a Stock Redemption Agreement (the "Redemption
Agreement") by and between the Company and ▇▇▇▇▇▇▇ dated as of February 5,
1996, the closing of which is to take place immediately prior to the closing of
the transactions contemplated by this Agreement and the MacGregor Asset
Contribution Agreement.
NOW, THEREFORE, in order to consummate said contribution and transfer of
assets and in consideration of the mutual agreements set forth herein, the
parties hereto agree as follows:
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ARTICLE 1. CONTRIBUTION OF ASSETS.
1.1 Contribution of Assets.
(a) Assets to be Contributed. Subject to and in reliance upon
the terms, provisions and conditions of this Agreement, each of ▇▇▇▇▇▇▇ and
▇▇▇▇▇ shall contribute to and the Company shall acquire, at the Closing (as
defined in Section 1.2 hereof) the following assets:
(i) ▇▇▇▇▇▇▇ shall contribute all of the issued and
outstanding shares of capital stock of Partners Dental Corporation, a
Delaware corporation, that are owned by ▇▇▇▇▇▇▇, which consists of 500
shares of common stock, par value $.01 per share (all such shares shall
hereinafter be referred to collectively as the "▇▇▇▇▇▇▇ Partners Dental
Stock") constituting fifty percent (50%) of all of the issued and
outstanding shares of capital stock of Partners Dental Corporation;
(ii) ▇▇▇▇▇ shall contribute all of the issued and
outstanding shares of capital stock of Partners Dental Corporation, a
Delaware corporation, that are owned by ▇▇▇▇▇, which consists of 500
shares of common stock, par value $.01 per share (all such shares shall
hereinafter be referred to collectively as the "▇▇▇▇▇ Partners Dental
Stock") constituting fifty percent (50%) of all of the issued and
outstanding shares of capital stock of Partners Dental Corporation;
(iii) ▇▇▇▇▇▇▇ shall contribute one-hundred percent (100%)
of the issued and outstanding shares of capital stock of Oral Health
Concepts, Inc., a Texas corporation, which consists of 1,000 shares of
common stock, no par value per share (all such shares shall hereinafter
be referred to collectively as the "Oral Health Stock");
(iv) ▇▇▇▇▇ shall contribute a one percent (1%) limited
partnership interest in Monarch Dental Associates-Mesquite, L.P., a
Texas limited partnership (the "▇▇▇▇▇ Mesquite L.P. Interest"); and
(v) ▇▇▇▇▇▇▇ shall contribute all of his interest in
certain trademarks set forth on Schedule 1.1(a)(v) (the "Trademarks").
The ▇▇▇▇▇▇▇ Partners Dental Stock, the ▇▇▇▇▇ Partners Dental Stock, the
Oral Health Stock, the ▇▇▇▇▇ Mesquite L.P. Interest and the Trademarks are
hereinafter sometimes referred to collectively as the "Subject Assets."
(b) Purchase Price of Subject Assets and Payment. In
consideration of the sale to the Company of the Subject Assets, the Company
agrees that at the Closing it will:
(i) in consideration of the contribution of the ▇▇▇▇▇▇▇
Partners Dental Stock by ▇▇▇▇▇▇▇ (A) pay ▇▇▇▇▇▇▇ cash in the amount of
$425,320 and (B)
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issue and deliver to ▇▇▇▇▇▇▇ 74,480 shares of the Company's common
stock, par value $.01 per share ("Common Stock");
(ii) in consideration of the contribution of the ▇▇▇▇▇
Partners Dental Stock by ▇▇▇▇▇ (A) pay ▇▇▇▇▇ cash in the amount of
$425,320 and (B) issue and deliver to ▇▇▇▇▇ 74,480 shares of the
Company's Common Stock;
(iii) in consideration of the contribution of the Oral
Health Stock by ▇▇▇▇▇▇▇ issue and deliver to ▇▇▇▇▇▇▇ 638,000 shares of
the Company's Common Stock;
(iv) in consideration of the contribution of the ▇▇▇▇▇
Mesquite L.P. Interest by ▇▇▇▇▇ pay ▇▇▇▇▇ (A) cash in the amount of
$8,680 and (B) issue and deliver to ▇▇▇▇▇ 1,520 shares of the Company's
Common Stock; and
(v) in consideration of the contribution of the
Trademarks by ▇▇▇▇▇▇▇ pay ▇▇▇▇▇▇▇ cash in the amount of $10.00.
All cash amounts to be paid pursuant to this Section 1.1(b) shall be
paid by wire transfer in immediately available funds to such accounts as
▇▇▇▇▇▇▇ and ▇▇▇▇▇, respectively, shall have indicated in writing to the
Company.
The parties hereto intend that the transfers of the Subject Assets
described in this Section 1.1 be considered part of a single integrated plan to
acquire the Subject Assets and other assets from other parties in a transaction
qualifying under Section 351 of the Code. Each of ▇▇▇▇▇▇▇, ▇▇▇▇▇ and the
Company will file federal income tax and other tax returns consistent with the
intent set forth above and will adhere to the reporting requirements under
regulations promulgated under Section 351 of the Code.
1.2 Time and Place of Closing. The closing of the transactions
provided for in this Agreement (herein called the "Closing") shall be held at
the offices of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ at Exchange Place, Boston, Massachusetts
as of the date hereof (such date being herein called the "Closing Date").
1.3 Certain Closing Deliveries.
(a) Consideration Price. At the Closing, the Company shall
pay to ▇▇▇▇▇▇▇ and ▇▇▇▇▇, respectively the cash consideration specified in
Section 1.1(b) and shall deliver to ▇▇▇▇▇▇▇ and ▇▇▇▇▇, respectively, the shares
of Common Stock specified in Section 1.1(b).
(b) Transfer of Subject Assets. At the Closing, (i) ▇▇▇▇▇▇▇
shall deliver or cause to be delivered to the Company the Oral Health Stock and
the ▇▇▇▇▇▇▇ Partners Dental Stock, together, in each case, with stock transfer
powers duly endorsed in blank transferring to the Company good title thereto
free and clear of all liens, restrictions and encumbrances and
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▇▇▇▇▇▇▇ shall execute and deliver such transfer and assignment instruments as
are necessary to transfer the Trademarks to the Company; and (ii) ▇▇▇▇▇ shall
deliver or cause to be delivered to the Company the ▇▇▇▇▇ Partners Dental Stock
and the ▇▇▇▇▇ Mesquite L.P. Interest, together, in the case of the ▇▇▇▇▇
Partner Stock with stock transfer powers duly endorsed in blank, and in the
case of the ▇▇▇▇▇ Mesquite L.P. Interest with an appropriate assignment
instrument, in each case transferring to the Company good title thereto free
and clear of all liens, restrictions and encumbrances.
(c) Release. Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall execute a
release in form and substance reasonably satisfactory to the Company.
1.4 Further Assurances. Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇, respectively,
from time to time after the Closing at the request of the Company and without
further consideration shall execute and deliver such further instruments of
transfer and assignment and take such other action as the Company may
reasonably require to more effectively transfer and assign to, and vest in, the
Company the Subject Assets.
1.5 Allocation of Purchase Price. Schedule 1.5 hereto sets forth the
allocation of the consideration paid by the Company to ▇▇▇▇▇▇▇ and ▇▇▇▇▇ among
the Subject Assets. Such allocation has been made in accordance with the
applicable rules under Section 351 of the Code as interpreted by Revenue Ruling
68-55 and shall be binding upon the Company, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ for all purposes
(including financial accounting purposes, financial and regulatory reporting
purposes and tax purposes). The Company, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ also each agree to
file appropriate documents with the IRS under Treasury Regulation Section
1.351-3 reflecting the foregoing.
1.6 Transfer Taxes. All transfer taxes, fees and duties under
applicable law incurred in connection with the acquisition of the Subject
Assets under this Agreement will be borne and paid by ▇▇▇▇▇▇▇ and ▇▇▇▇▇,
respectively, and ▇▇▇▇▇▇▇ and ▇▇▇▇▇ each hereby covenants to promptly reimburse
the Company for any such tax, fee or duty which either the Company, ▇▇▇▇▇▇▇ or
▇▇▇▇▇ is required to pay under applicable law.
ARTICLE 2A. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇.
2A.1 Making of Representations and Warranties. As a material
inducement to the Company to enter into this Agreement and to consummate the
transactions contemplated hereby, ▇▇▇▇▇▇▇ hereby makes to the Company the
representations and warranties contained in this Section 2A.
2A.2 Authority; Noncontravention. ▇▇▇▇▇▇▇ has full capacity to enter
into this Agreement, each agreement, document and instrument to be executed and
delivered by him pursuant to or contemplated by this Agreement and to carry out
the transactions contemplated hereby and thereby. The execution, delivery and
performance by ▇▇▇▇▇▇▇ of this Agreement and each such other agreement,
document and instrument have been duly authorized by all
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necessary corporate and partnership action and no other action on the part of
▇▇▇▇▇▇▇ or any other person or entity is required in connection therewith.
This Agreement and each such agreement, document and instrument executed and
delivered by ▇▇▇▇▇▇▇ pursuant to this Agreement constitute valid and binding
obligations of ▇▇▇▇▇▇▇ enforceable in accordance with their respective terms.
The execution, delivery and performance by ▇▇▇▇▇▇▇ of this Agreement and
each such agreement, document and instrument contemplated by this Agreement to
which he is a party:
(i) do not and will not violate in any material respect
any laws of the United States or any state or other jurisdiction
applicable to ▇▇▇▇▇▇▇ or require ▇▇▇▇▇▇▇ or any other person or entity
to obtain any approval, consent or waiver of, or make any filing with,
any person or entity (governmental or otherwise) that has not been
obtained or made; and
(ii) do not and will not result in a breach of,
constitute a default under, accelerate any obligation under, or give
rise to a right of termination of any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien,
lease, permit, authorization, order, writ, judgment, injunction, decree,
determination or arbitration award, whether written or oral, to which
▇▇▇▇▇▇▇ or any other person or entity is a party or by which the
property of ▇▇▇▇▇▇▇ is bound or affected, except to the extent that any
of the foregoing would not have a material adverse effect on the
business, operations, results of operations, assets, condition
(financial or other) or prospects of the Monarch Dental Centers business
(as defined in the Redemption Agreement) taken as a whole, or result in
the creation or imposition of any mortgage, pledge, lien, security
interest or other charge or encumbrance on any of the asset transferred
by ▇▇▇▇▇▇▇ pursuant to this Agreement.
2A.3 Transfer of Title. At the Closing the Company will receive good,
valid and (if applicable) marketable title to the ▇▇▇▇▇▇▇ Partners Dental
Stock, Oral Health Stock and the Trademarks, free and clear of all liens,
encumbrances, charges, restrictions on transfer, stockholder or similar
agreements, equities and other claims of every kind, including the right and
ability to transfer any of the foregoing to its subsidiaries.
ARTICLE 2B. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇.
2B.1 Making of Representations and Warranties. As a material
inducement to the Company to enter into this Agreement and to consummate the
transactions contemplated hereby, ▇▇▇▇▇ hereby makes to the Company the
representations and warranties contained in this Section 2B.
2B.2 Authority; Noncontravention. ▇▇▇▇▇ has full capacity to enter
into this Agreement, each agreement, document and instrument to be executed and
delivered by him pursuant to or contemplated by this Agreement and to carry out
the transactions contemplated
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hereby and thereby. The execution, delivery and performance by ▇▇▇▇▇ of this
Agreement and each such other agreement, document and instrument have been duly
authorized by all necessary corporate and partnership action and no other
action on the part of ▇▇▇▇▇ or any other person or entity is required in
connection therewith. This Agreement and each such agreement, document and
instrument executed and delivered by ▇▇▇▇▇ pursuant to this Agreement
constitute valid and binding obligations of ▇▇▇▇▇ enforceable in accordance
with their respective terms.
The execution, delivery and performance by ▇▇▇▇▇ of this Agreement and
each such agreement, document and instrument contemplated by this Agreement to
which he is a party:
(i) do not and will not violate in any material respect
any laws of the United States or any state or other jurisdiction
applicable to ▇▇▇▇▇ or require ▇▇▇▇▇ or any other person or entity to
obtain any approval, consent or waiver of, or make any filing with, any
person or entity (governmental or otherwise) that has not been obtained
or made; and
(ii) do not and will not result in a breach of,
constitute a default under, accelerate any obligation under, or give
rise to a right of termination of any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien,
lease, permit, authorization, order, writ, judgment, injunction, decree,
determination or arbitration award, whether written or oral, to which
▇▇▇▇▇ or any other person or entity is a party or by which the property
of ▇▇▇▇▇ is bound or affected, except to the extent that any of the
foregoing would not have a material adverse effect on the business,
operations, results of operations, assets, condition (financial or
other) or prospects of the Monarch Dental Centers business (as defined
in the Redemption Agreement) taken as a whole, or result in the creation
or imposition of any mortgage, pledge, lien, security interest or other
charge or encumbrance on any of the asset transferred by ▇▇▇▇▇ pursuant
to this Agreement.
2B.3 Transfer of Title. At the Closing the Company will receive good,
valid and (if applicable) marketable title to the ▇▇▇▇▇ Partners Dental Stock,
Oral Health Stock and the Trademarks, free and clear of all liens,
encumbrances, charges, restrictions on transfer, stockholder or similar
agreements, equities and other claims of every kind, including the right and
ability to transfer any of the foregoing to its subsidiaries.
ARTICLE 2C. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇ AND ▇▇▇▇▇.
2C.1 Investment Representations. Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇, in
connection with his acquisition of Common Stock, represents that he is an
"accredited investor" as such term is defined in Rule 501 under the Securities
Act of 1933, as amended (the "Securities Act"). Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇
represents to the Company that he is acquiring such Common Stock for his own
account, for investment only and not with a view to, or any present
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intention of, effecting a distribution of such securities or any part thereof
except pursuant to a registration or an available exemption under applicable
law. Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ acknowledges that the Common Stock of the
Company has not been registered under the Securities Act or the securities laws
of any state or other jurisdiction and cannot be disposed of unless it is
subsequently registered under the Securities Act and any applicable state laws
or exemption from such registration is available. Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇
represents that he has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the investment
contemplated by this Agreement and the transactions contemplated hereby and the
transactions referred to herein and making an informed investment decision with
respect thereto.
Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ acknowledges and agrees that the following
legend shall be typed on each certificate evidencing shares of Common Stock
issued hereunder:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES OR BLUE
SKY LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH
SECURITIES WHICH IS EFFECTIVE UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF
SECURITIES AND (3) IN ACCORDANCE WITH APPLICABLE STATE SECURITIES AND BLUE SKY
LAWS.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A
STOCKHOLDERS' AGREEMENT DATED AS OF FEBRUARY 5, 1996, INCLUDING THEREIN CERTAIN
RESTRICTIONS ON TRANSFER, AND VOTING REQUIREMENTS. A COMPLETE AND CORRECT COPY
OF THIS AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
ARTICLE 3. COVENANTS OF ▇▇▇▇▇▇▇ AND ▇▇▇▇▇.
3.1 Making of Covenants and Agreements. Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇
hereby makes the covenants and agreements as set forth in this Article 3 for
the period from and after the Closing.
3.2 Cooperation. Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall cooperate with all
reasonable requests of the Company, or any of their representatives and agents
to more effectively consummate the transactions contemplated hereby and the
transactions referred to herein.
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3.3 Consents. Each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall assist the Company in
obtaining any and all consents, authorizations and approvals necessary in
connection with the consummation of the transactions contemplated hereby or
referred to herein.
3.4 Notice of Default. Promptly upon the occurrence of, or promptly
upon ▇▇▇▇▇▇▇ or ▇▇▇▇▇ becoming aware of the impending or threatened occurrence
of, any event which would cause or constitute a breach or default, or would
have caused or constituted a breach or default had such event occurred or been
known to ▇▇▇▇▇▇▇ or ▇▇▇▇▇ prior to the date hereof, of any of the
representations, warranties or covenants of ▇▇▇▇▇▇▇ or ▇▇▇▇▇ contained in or
referred to in this Agreement or in any Schedule or Exhibit referred to in this
Agreement, ▇▇▇▇▇▇▇ or ▇▇▇▇▇, as the case may be shall give detailed written
notice thereof to the Company and use his best efforts to prevent or promptly
remedy the same.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
4.1 Making of Representations and Warranties. As a material
inducement to each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ to enter into this Agreement and to
consummate the transactions contemplated hereby, the Company hereby makes the
representations and warranties to ▇▇▇▇▇▇▇ and ▇▇▇▇▇ contained in this Section
4.
4.2 Common Stock. Upon consummation of the transactions contemplated
hereby, the shares of Common Stock issued to each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇ pursuant
to Section 1.1(b) shall be duly authorized, validly issued, fully paid and
non-assessable.
4.3 Cooperation. The Company shall cooperate with all reasonable
requests of ▇▇▇▇▇▇▇ and ▇▇▇▇▇, or any of their representatives and agents, to
more effectively consummate the transactions contemplated hereby and the
transactions referred to herein.
ARTICLE 5. SURVIVAL OF REPRESENTATIONS, WARRANTIES, ARRANGEMENTS, COVENANTS
AND OBLIGATIONS.
All representations, warranties, agreements, covenants and obligations
herein or in any schedule, exhibit or certificate delivered by any party to the
other party incident to the transactions contemplated hereby are material,
shall be deemed to have been relied upon by the other party and shall survive
the Closing regardless of any investigation and shall not merge in the
performance of any obligation by either party hereto.
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ARTICLE 6. MISCELLANEOUS.
6.1 Fees, Expenses and Certain Taxes.
(a) The Company will pay its fees and expenses in connection
with this Agreement and the transactions contemplated hereby.
(b) ▇▇▇▇▇▇▇ will pay all costs incurred, whether at or
subsequent to the Closing, in connection with the transfer of the Oral Health
Stock and the ▇▇▇▇▇▇▇ Partners Dental Stock to the Company as contemplated by
this Agreement, including without limitation, all transfer taxes and charges
applicable to such transfer. ▇▇▇▇▇ will pay all costs incurred whether at or
subsequent to the Closing, in connection with the transfer of the ▇▇▇▇▇ Partner
Dental Stock and the ▇▇▇▇▇ Mesquite L.P. Interest to the Company as
contemplated by this Agreement, including without limitation, all transfer
taxes and charges applicable to such transfer.
6.2 Governing Law. This Agreement shall be construed under and
governed by the internal laws of the State of Texas without regard to its
conflict of laws provisions.
6.3 Notices. Any notice, request, demand other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, or if
sent by registered or certified mail, upon the sooner of the expiration of
three days after deposit in United States post office facilities properly
addressed with postage prepaid or acknowledgment of receipt. All notices and
payments to a party will be sent to the addresses set forth below or to such
other address or person as such party may designate by notice to each other
party hereunder:
TO THE COMPANY: Monarch Dental Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇, Procter & ▇▇▇▇
Exchange Place
Boston, MA 02109
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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TO ▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
c/o Monarch Dental Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ and ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TO ▇▇▇▇▇: ▇▇▇ ▇. ▇▇▇▇▇, III, D.D.S.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Flint & ▇▇▇▇▇▇, P.C.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice given hereunder may be given on behalf of any party by his counsel
or other authorized representatives.
6.4 Entire Agreement. This Agreement (together with the Redemption
Agreement in the case of ▇▇▇▇▇▇▇), including the Schedules referred to herein
and the other writings specifically identified herein or contemplated hereby or
delivered in connection with the transactions contemplated hereby, is complete,
reflects the entire agreement of the parties with respect to its subject
matter, and supersedes all previous written or oral negotiations, commitments
and writings, including without limitation the letter dated November 2, 1995.
6.5 Assignability; Binding Effect. This Agreement and any rights
hereunder shall be assignable by the Company to one or more corporations or
partnerships controlling, controlled by or under common control with the
Company, directly or indirectly, provided the Company shall remain liable for
its obligations hereunder in connection with any such assignment, or to any
successor or acquiror of the Company or its affiliates provided such entity
assumes or agrees to be bound by the Company's obligations hereunder, or to any
entity providing financing in connection with the transactions contemplated
hereby or to any successor or assign or such an entity (including without
limitation any such successor or assign in connection with any refinancing,
renewal or extension of such financing), upon written
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notice to each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇. This Agreement may not be assigned by
▇▇▇▇▇▇▇ or ▇▇▇▇▇ without the prior written consent of the Company. This
Agreement shall be binding upon and enforceable by, and shall inure to the
benefit of, the parties hereto and their respective successors, heirs and
permitted assigns (including without limitation the estate and heirs of each of
▇▇▇▇▇▇▇ and ▇▇▇▇▇ in the event of his death).
6.6 Captions and Gender. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun
in reference to a party hereto shall be deemed to include the feminine or
neuter pronoun, as the context may require.
6.7 Execution in Counterparts. For the convenience of the parties
and to facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
6.8 Amendments. This Agreement may not be amended or modified, nor
may compliance with any condition or covenant set forth herein be waived,
except by a writing duly and validly executed by each of the parties hereto or
in the case of a waiver, the party or parties waiving compliance.
6.9 Consent to Jurisdiction; Certain Remedies. Solely for the
purpose of allowing a party to enforce its indemnification and other rights
hereunder, each of the parties hereby consents to personal jurisdiction,
service of process and venue in the federal or state courts of Texas or in the
court in which any claim for which indemnification may be sought hereunder is
brought against an indemnified party. If any party should default in the
performance of its obligations hereunder, the other party or parties, as
applicable, shall, in addition to any other of its rights and remedies
hereunder or otherwise, be entitled to the remedy of specific performance, and
each of the parties hereto expressly waives the defense that a remedy in
damages will be adequate.
6.10 Certain Definitions. For purposes of this Agreement, the term:
(a) "affiliate" of a person shall (i) with respect to a
person, any member of such person's family (including any child, step-child,
parent, step-parent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law or sister-in-law); (ii) with respect to an
entity, any officer, director, stockholder, partner or investor in such entity
or of or in any affiliate of such entity; and (iii) with respect to a person or
entity, any person or entity which directly or indirectly controls, is
controlled by, or is under common control with such person or entity.
(b) "control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the direction of the
management policies of a person, whether through the ownership of stock, as
trustee or executor, by contract or credit arrangement or otherwise;
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(c) "person" means an individual, corporation, partnership,
association, trust or any unincorporated organization; and
(d) "subsidiary" of a person means any corporation more than
50 percent of whose outstanding voting securities, or any partnership, joint
venture or other entity more than 50 percent of whose total equity interest, is
directly or indirectly owned by such person.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the date set forth above by their
duly authorized representatives.
THE COMPANY:
ATTEST MONARCH DENTAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------ ---------------------------------
Secretary Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
[Corporate Seal] Title: President
SPOUSE'S CONSENT ▇▇▇▇▇▇▇:
I acknowledge that I have read the
foregoing Agreement and that I
understand the contents thereof.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------ ------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
SPOUSE'S CONSENT ▇▇▇▇▇:
I acknowledge that I have read the
foregoing Agreement and that I
understand the contents thereof.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇ III DDS
------------------------------------ ------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇, III, D.D.S.
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