SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) APRIL 1, 1998
DENTAL CARE ALLIANCE, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation)
0-23219 65-0555-126
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(Commission File Number) (IRS Employer Identification No.)
1343 MAIN STREET, 7TH FLOOR
SARASOTA, FLORIDA 34236
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (941) 955-3150
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(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On April 1, 1998, Dental Care Alliance, Inc. a Delaware corporation
(the "Registrant"), acquired all the outstanding capital stock of Dental One
Associates, Inc., a Georgia corporation ("Dental One") pursuant to a Stock
Purchase Agreement effective March 20, 1998. A copy of the Stock Purchase
Agreement is being filed as Exhibit 2.1 hereto.
Pursuant to the Stock Purchase Agreement, the Company acquired all of
the assets of Dental One. Such assets consisted primarily of non-dental assets
(including dental equipment) and management agreements. The Registrant intends
to continue use of the equipment purchased in the same manner such equipment was
used by Dental One prior to the acquisition. Pursuant to the Stock Purchase
Agreements, Five Hundred Thousand shares (500,000) of the common stock of Dental
One, representing one hundred percent (100%) of the issued and outstanding
shares, were sold in consideration of (a) Two Million Four Hundred Thousand and
00/100 Dollars ($2,400,000.00) in cash; (b) a promissory note in the amount of
One Million Forty Seven Thousand Five Hundred Ten and 00/100 Dollars
($1,047,510.00), bearing an annual interest rate equal to eight and one-half
percent (8.5%), payable in equal quarterly installments of principal and
interest amortized over a period of five (5) years with a balloon payment for
the remaining principal balance and accrued interest on the third (3rd)
anniversary; and (c) a promissory note of One Million Two Hundred Thousand and
00/100 Dollars ($1,200,000.00), payable in equal monthly installments over a
period of 120 days.
The cash portion of the purchase price was paid with a portion of the
proceeds of the Registrant's initial public offering. The consideration paid by
the Registrant to the Dental One shareholders was determined by negotiation
among the Registrant, Dental One and the Dental One Shareholders.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial statements
It is currently impracticable to provide the financial statements
required pursuant to Rule 3.05(b) of Regulation S-X prior to the due
date of this Report. This Report will be amended within 60 days of the
date this Report is filed to include such financial statements.
(b) Pro forma financial information
It is currently impracticable to provide the pro forma financial
information required pursuant to Article 11 of Regulation S-X prior to
the due date of this Report. This Report will be amended within 60 days
of the date this Report is filed to include such pro forma financial
information.
(c) Exhibits
2.1 Stock Purchase Agreement, dated March 20, l997 by and between
Dental Care Alliance, Inc. and Dental One Associates, Inc.
shareholders.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DENTAL CARE ALLIANCE, INC.
Dated: April 16, 1998 By: /s/ STEVEN R. MATZKIN
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Steven R. Matzkin, Chairman of the
Board of Directors, Chief Executive
Officer and President
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
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2.1 Stock Purchase Agreement, dated March 20, 1997 by and between
Dental Care Alliance, Inc. and Dental One Associates, Inc.
shareholders
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into as of March 20, 1998, by and
between the shareholders listed on Exhibit "A" hereto (collectively hereinafter
referred to as "Sellers"), and DENTAL CARE ALLIANCE, INC., a Delaware
Corporation, 1343 Main Street, 7th Floor, Sarasota, Florida 34236 (hereinafter
referred to as "Buyer").
W I T N E S S E T H :
WHEREAS, Sellers are desirous of selling to Buyer Five Hundred Thousand
(500,000) shares of the common stock of DENTAL ONE ASSOCIATES, INC., a Georgia
corporation (hereinafter referred to as "Corporation"); and
WHEREAS, Buyer is desirous of purchasing said shares of common stock
upon the terms and conditions herein contained; and
WHEREAS, the parties wish to define their respective rights and
obligations relative to such purchase.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed by and between Sellers and Buyer as follows:
1. ASSETS PURCHASED AND SOLD. Sellers shall sell and Buyer shall
purchase in the aggregate Five Hundred Thousand (500,000) shares of the common
stock ("Common Stock") representing one hundred percent (100%) of the issued and
outstanding shares of common stock of the Corporation upon the terms and
conditions herein contained.
2. PURCHASE PRICE. The purchase price to be paid by Buyer to Sellers
for the Common Stock shall be the sum of Four Million Six Hundred Forty Seven
Thousand Five Hundred Ten and 00/100 Dollars ($4,647,510.00).
3. PAYMENT OF PURCHASE PRICE. Buyer shall pay Sellers the Purchase
Price as follows:
a. At Closing, Buyer shall pay to Sellers the sum of Two
Million Four Hundred Thousand and 00/100 Dollars ($2,400,000.00) in cash or by
certified or cashier's check.
b. At Closing, Buyer shall execute a promissory note in favor
of Sellers in the amount of One Million Forty Seven Thousand Five Hundred Ten
and 00/100 Dollars ($1,047,510.00), bearing an annual interest rate equal to
eight and one-half percent (8 1/2%). Said promissory note shall be payable in
equal quarterly installments of principal and interest amortized over a period
of five (5) years with a balloon payment for the remaining principal balance and
accrued interest on the third (3rd) anniversary of the Closing. The Buyer shall
have the right to prepay the note, at any time, without penalty.
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c. At Closing, Buyer shall execute a promissory note in favor
of Sellers in the amount of One Million Two Hundred Thousand and 00/100 Dollars
($1,200,000.00). Said promissory note shall be payable in equal monthly
installments over a period of 120 days with the final payment occurring 120 days
from the date of closing.
d. As security for the payment of the promissory note
discussed in paragraph 3(b) above, Buyer shall pledge the common stock purchased
hereunder as well as the assets of Corporation, a list of which is attached as
Exhibit "B" hereto. Buyer shall execute and deliver a written security agreement
to Sellers in the form substantially comporting with that annexed hereto as
Exhibit "C".
4. SELLERS' WARRANTIES AND REPRESENTATIONS. A material part of the
consideration for the purchase of the Common Stock and the inducement to Buyer
to buy such Common Stock is the truth and completeness of the following
warranties and representations of Sellers each of which is a condition of
Buyer's obligations under this Agreement. Any exception to the following
warranties and representations shall be set forth on Exhibit "D" attached hereto
and made a part hereof.
a. Sellers are the record and beneficial owner of the Common
Stock representing one hundred percent (100%) of the issued and outstanding
stock of the Corporation. The Common Stock is legally and validly issued, fully
paid and nonassessable. The Common Stock is owned free and clear of all liens,
encumbrances, options, claims, charges and assessments of every kind or nature
whatsoever and, except as disclosed in Exhibit "D" hereto, are subject to no
restrictions with respect to transferability.
b. This Agreement and any documents or instruments delivered
pursuant hereto will be the legal, valid and binding obligations of the Sellers
enforceable in accordance with their terms.
c. Corporation is the owner of and has good and marketable
title to the assets listed on Exhibit "E" and such assets are free and clear of
all debts, liens and encumbrances. Buyer acknowledges that certain personal
property belonging personally to Sellers has been, or will be removed from the
Corporation's main office prior to or immediately after Closing. The personal
property to be removed is set forth on Exhibit "F", attached hereto and made a
part hereof.
d. Corporation is not engaged in, threatened with nor is the
subject of, any pending or threatened legal action, suit or other proceeding
before any court, any federal, state or local governmental agency or before any
other forum.
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e. No breach of contract, tort or other claim, whether arising
from Corporation's business operations or otherwise, has been asserted by any
employee, creditor, patient, supplier, claimant or other person against
Corporation, nor, to Sellers' knowledge, has there been any occurrence which
could give rise to such a claim.
f. There are no persons or entities with whom Corporation has
done business that have a right of setoff, chargeback, return or credit that
will have a material effect upon the financial position of Corporation in the
conduct of its trade or business.
g. No present or former employee of Corporation has a material
claim or basis for a material claim against Corporation under any employment
agreement, contract or otherwise.
h. Corporation is in compliance with federal, state and local
laws, ordinances and regulations regarding employment practices, terms and
conditions of employment and wages and hours and is not engaged in any unfair
labor practice.
i. A list of Corporation's employees and their salaries is
attached hereto as Exhibit "G". Sellers agree not to raise the salary of any of
such employees prior to Closing. Nothing herein shall be construed as to require
Buyer to retain any of such employees. Notwithstanding the above, it is the
intent of Buyer to not materially change the existing make-up or overall
compensation packages of the staff currently employed by Corporation.
j. There are no outstanding contracts, oral or written,
relating to the Corporation to which Corporation is a party which are not listed
on Exhibit "H".
k. All existing local, state or federal operating and
occupational licenses necessary to operate the Corporation are in good standing
and Sellers know of no actions or claims or violations which are pending which
would result in any limitations on or suspension or termination of such
licenses.
l. Corporation is an entity duly organized and existing in
good standing under the laws of the State of Georgia and is entitled to own its
properties and conduct business in Georgia.
m. All written statements of financial position of the
Corporation shown to or disclosed to Buyer and its accountants, attorneys and
other agents, copies of which are attached hereto as Exhibit "I" and expressly
incorporated herein by reference, are complete, accurate and thoroughly present
the financial position of Corporation for the periods to which they relate, and
there has been no material adverse change in the condition, financial or
otherwise, of Corporation since the last disclosed statement, other than changes
occurring in the ordinary course of business as conducted by Corporation.
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n. All material assets of the Corporation are in good repair
and working order.
o. With respect to the operation of the Corporation from the
date of this Agreement until the date of closing:
(1) Corporation will not dispose of any of its assets
or permit any of its assets to be removed or transferred from their present
location except (a) sales or usage of said assets in the ordinary course of
Corporation's business, or (b) for repair or replacement. Any replacement of an
asset to be sold, transferred or conveyed hereunder shall be of equal quantity
and quality.
(2) Corporation will carry on its business in a good
and diligent manner, will maintain all of its assets in the good condition that
they were in on the date of this Agreement, ordinary wear and tear excepted,
will pay and discharge all of its debts and obligations in a manner consistent
with its past business practices, and will preserve the goodwill of its
patients, suppliers and others having a business relationship with Corporation.
(3) Corporation will not enter into, assume or create
any pledge, security interest or any title retention agreement, lien,
encumbrance, charge, claim or lease of any kind upon or involving any of its
assets.
(4) Sellers will keep full and accurate records of
all transactions entered into and conducted by the Corporation.
p. Corporation has filed all necessary federal, state and
local income, sales, use, capital stock, withholding, unemployment, tangible and
intangible property and franchise tax returns, and all other necessary reports
and returns for all other taxes due to the federal, state and local governments,
and Corporation has paid all taxes shown on any such returns. There are no
unpaid assessments or proposed assessments of such taxes pending against
Corporation. Sellers have no knowledge of any tax deficiency or the existence of
any basis upon which any tax deficiency might be asserted against Corporation.
Corporation's books and records contain adequate reserves for any and all tax
liabilities for periods prior to the date of the Closing of this transaction.
q. Corporation is in compliance in all material respects, with
all applicable federal, state and local environmental laws.
r. The assets of the Corporation are adequately insured under
such policies to the extent usually insured by persons engaged in a dental
management business against loss or damage of any kind, customarily insured on
such businesses.
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s. No representation or warranty by the Sellers in this
Agreement, nor any statement or certificate furnished or to be furnished by
Sellers pursuant hereto, or in connection with the transaction as contemplated
hereby, contains or will contain an untrue statement of any material fact
necessary to make the statement contained therein not misleading.
5. BUYER'S WARRANTIES AND REPRESENTATIONS. A material part of the
consideration for the sale of the Common Stock and the inducement to Sellers to
sell such Common Stock is the truth and completeness of the following warranties
and representations of Buyer each of which is a condition of Sellers'
obligations under this Agreement.
a. This Agreement and any documents or instruments delivered
pursuant hereto will be the legal, valid and binding obligation of Buyer
enforceable in accordance with their terms.
b. Buyer is an entity duly organized and existing in good
standing under the laws of the State of Delaware.
c. No representation or warranty by the Buyer in this
Agreement, nor any statement or certificate furnished or to be furnished by
Buyer pursuant hereto, or in connection with the transaction as contemplated
hereby, contains or will contain an untrue statement of any material fact
necessary to make the statement contained therein not misleading.
6. CONTINGENCIES TO BUYER'S OBLIGATION TO CLOSE. Buyer's obligation to
conclude and consummate the purchase provided for herein is conditioned upon the
fulfillment of each of the following:
a. Corporation shall not have been materially and/or adversely
affected prior to closing by anything whatsoever including, but not limited to
fire, explosion, disaster, accident or any other Act of God or other event of an
unusual nature, or any change in law or regulation (federal, state or local)
affecting the right of Buyer to operate the business of the Corporation, or a
requisition or taking by any federal, state or local government.
b. Corporation shall have operated its business diligently and
in good faith, consistent with past management practices, keeping available, to
the extent reasonably possible, the services of its present officers and
employees and preserved its present relationships with persons having business
dealings with it.
c. Buyer shall have received all local, state and federal
occupational and other licenses required to operate the Corporation in the same
manner as the Corporation is currently being operated by Sellers.
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d. Buyer shall have entered into new Management Services
Agreements substantially in the form of Exhibit "J" attached hereto to replace
the Management Fee Agreements of the Corporation currently in effect, which
previous fee arrangements will then be considered cancelled in full.
e. Buyer's completion of its business, financial and legal due
diligence review of the Corporation with Buyer having determined, in its sole
discretion, that the results thereof are satisfactory.
f. Buyer shall have not discovered any material error or
misstatement in the representations and warranties made by Sellers herein and
the representations and warranties made by Sellers herein shall be substantially
correct on and as of the Closing with the same force and effect (except as said
representations and warranties may be affected by the transactions contemplated
under this Agreement and changes occurring in the ordinary course of business by
Corporation) as though such representations and warranties have been made on and
as of the Closing, all the terms and conditions of this Agreement to be complied
with and performed by Sellers on or before the Closing shall have been
substantially complied with and performed and Sellers shall have delivered to
Buyer a certificate to such effect, at the election of Buyer.
Buyer may waive any contingency to such Buyer's obligation to close and
consummate the transactions described in this Agreement by written notice of
waiver to Sellers not less than three days prior to Closing.
7. CONTINGENCIES TO SELLERS' OBLIGATION TO CLOSE. Sellers' obligation
to conclude and consummate the sale provided for herein is conditioned upon the
full execution by Buyer of an Administrative Service Subcontract Agreement
substantially in the form of Exhibit "K" hereto.
8. NON-ASSUMPTION OF LIABILITIES. Buyer does not assume and is not
responsible for, any debt, obligation or liability of Corporation other than
those disclosed on Exhibit "L" hereto.
9. ACCESS TO RECORDS. From and after the date hereof, Sellers shall
continue to afford to Buyer or Buyer's appointed representatives, reasonable
access to the properties and records of Corporation in order that Buyer may have
full opportunity to make such investigation as it shall desire of the affairs of
Corporation, provided that such activities by Buyer do not unreasonably
interfere with Corporation's normal business operation. Each party shall have
free access to and the right to make extra copies of all books and records
received or retained by the other party. All records received by Buyer hereunder
and all information received by Buyer related to the Corporation shall remain
confidential in nature and shall not be disclosed to third parties.
10. EXPENSES OF SALE. Each party hereto shall pay its own expenses
incident to the preparation of this Agreement and for carrying the terms and
conditions of this Agreement into
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effect, other than as expressly described above, and consummating said
transactions whether or not the transactions contemplated hereby are actually
consummated.
11. CLOSING. The closing under this Agreement shall take place on or
before the 8th day of April, 1998 ("CLOSING").
At the Closing, Sellers shall deliver to Buyer the following:
a. Certificates representing all issued and outstanding shares
of the capital stock of the Corporation, duly endorsed in blank and accompanied
by stock powers duly executed in blank.
b. The minute book, stock transfer records, all books of
account, records, contracts, tax returns and all other original documents and
records of the Corporation.
c. Closing statement.
d. Duly executed lease assignments, with appropriate landlord
consent, described in paragraph 32.
e. The Management Services Agreements described in Paragraph
6(d).
f. The Administrative Service Subcontract Agreement attached
as Exhibit "K".
g. An opinion from Sellers' counsel that Sellers own the
Common Stock free and clear of all liens and encumbrances, options, claims,
charges, and assessments of every kind or nature and are not subject to any
restriction with respect to transferability.
h. Such other documents, certificates or instruments required
to be delivered by Sellers at or prior to the Closing pursuant to this Agreement
or pursuant to ancillary agreements as may be requested by Buyer to implement
and effectuate the transactions contemplated hereby.
At the Closing, Buyer shall deliver to Sellers the following
documents:
a. Cash referred to in paragraph 3(a) above.
b. Promissory Notes referred to in paragraphs 3(b) and (c)
above.
c. Security Agreement referred to in paragraph 3(d) above.
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12. AUDITS BY INTERNAL REVENUE SERVICE. In the event the Corporation is
audited by the Internal Revenue Service for any period prior to the Closing of
this transaction, Buyer shall give notice to the Sellers of such audit, shall
allow Sellers to participate in the audit and shall take all steps reasonably
necessary in order to cooperate with the Internal Revenue Service and Sellers,
Sellers' attorney and Sellers' accountant. Sellers shall be responsible for all
tax deficiencies, including interest and penalties, resulting from any tax
deficiency for any period prior to the Closing. Sellers have the right to select
the professional representation, at its own costs and expense.
13. COVENANT NOT TO COMPETE. Sellers hereby agree that they will not,
for a period of five (5) years from the Closing of this transaction engage
directly or indirectly in a dental management company in the geographical
location of a ten (10) mile radius from the practice locations listed on Exhibit
"M". Sellers further agree that during the said five (5) year period in the
geographical location described above, they will not directly or indirectly be
connected with any person, corporation, or business entity providing dental
management services, other than Buyer, Corporation or an affiliate of Buyer.
Sellers will have no financial interest in any business entity and/or provider
of dental management services in the geographical location described above
during the five (5) year restrictive period, except that Sellers shall not be
prohibited from providing dental management services to their own dental
practices so long as such dental practices are not in violation of the paragraph
immediately following.
Notwithstanding the above, nothing contained in this Agreement shall
restrict Jeffrey P. Catton from engaging in the management of dental practices
located at 435 Arrowhead Boulevard, Jonesboro, Georgia, 306 West Main Street,
Cumming, Georgia, or 746 West Church Street, Jasper, Georgia.
Sellers further agree that they will not, for a period of five (5)
years from the closing of this transaction engage directly or indirectly in a
dental practice and/or provide dental services in the geographical location of a
two (2) mile radius from the practice locations listed on Exhibit "M". Sellers
further agree that during the said five (5) year period in the geographical
location described above, they will not directly or indirectly be connected with
any person, corporation, or business entity providing dental services, except
that Sellers shall be permitted to receive referrals from general dentists in
the geographical area described above. Sellers and Principal will have no
financial interest in any business entity and/or provider of dental services in
the geographical location described above during the five (5) year restrictive
period. Furthermore, Sellers agree not to induce patients associated with the
Corporation's practices, to utilize the services of any other dentist in the
aforementioned area. Notwithstanding the above, nothing contained in this
Agreement shall restrict Paul Yurfest, D.D.S., from engaging in the practice of
dentistry at 1218 West Paces Ferry Road, Atlanta, Georgia, nor shall such
restrictions apply to the practice of dentistry by Robert A. Burns, Jr., D.D.S.
at 2754 N. Decatur Road, Decatur, Georgia.
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Sellers acknowledge that the restraints set forth in the above
paragraph are reasonable and necessary for the protection of legitimate business
interests of Buyer and that this covenant on the part of the Sellers shall be
construed as an agreement. It is agreed by Buyer and Sellers that if any portion
of this restrictive covenant is held to be unreasonable, arbitrary or against
public policy, these covenants shall be considered to be diminishable both as to
time and geographical area, and each month for the specific period shall be
deemed a separate period of time and each square mile shall be deemed a separate
geographical area and shall remain effective so long as the same is not
otherwise unreasonable, arbitrary or against public policy.
Sellers and Buyer hereby agree that in the event any court
determines any specific time period or any specific geographical area to be
unreasonable, arbitrary or against public policy, a lesser time period or
geographical area which is determined to be reasonable, non-arbitrary and not
against public policy may be enforced against the Sellers. The Sellers further
understand that this covenant may be enforced by the entering of a temporary or
permanent injunction.
It is understood that a court of competent jurisdiction shall
construe this restrictive covenant in favor of providing reasonable protection
to all legitimate business interests established by Buyer. It is understood that
the court shall not employ any rule of contract construction that requires the
court to construe a restrictive covenant narrowly, against the restraint, or
against the drafter of the contract. It is understood that no court may refuse
to enforce this restrictive covenant on the grounds that the contract violates
public policy unless such public policy is articulated specifically by the court
and the court finds that the specific public policy requirements substantially
outweigh the need to protect the legitimate business interest or interests
established by Buyer.
The violation of this restrictive covenant creates a
presumption of irreparable injury to Buyer on seeking its enforcement. Buyer
will post a proper bond as set by the court if an injunction is entered. In the
event it becomes necessary for Buyer to retain the services of an attorney to
enforce this restrictive covenant, it is agreed that the prevailing party shall
be entitled to reasonable attorney's fees and costs in any legal proceeding,
both at the trial or appellate level.
Sellers agree the restriction contained herein is freely
assignable by Buyer, in its sole discretion, and any assignee, successor or
third-party beneficiary to this Agreement may enforce the same.
The laws of the State of Georgia shall control the
interpretation of this restrictive covenant.
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14. SELLERS' INDEMNITY. So long as Sellers receive prompt written
notice of, and an opportunity to defend, Sellers shall, jointly and severally,
indemnify and hold Buyer harmless in relation to:
a. all liabilities and obligations of or claims against
Sellers or Corporation not expressly assumed herein by Buyer;
b. any damages or deficiency due to any breach of warranty,
misrepresentation or non-fulfillment of any agreement on the part of Sellers
under this Agreement or from any misrepresentation in or omission from any
certificate or other instrument given or to be given to Buyer pursuant to the
Agreement;
c. all action, suits, proceedings, demands, assessments,
judgments, costs and expenses connected with the foregoing.
In addition to other remedies available, Buyer may set off
against any amounts due Sellers under the Note, any amounts for which Sellers
are liable to Buyer pursuant to this paragraph as determined by a court of
competent jurisdiction or an independent arbitrator, in accordance with the
rules of the American Arbitration Association, has rendered a decision to the
effect that Sellers are liable to Buyer for such amounts.
15. PRORATIONS AND ADJUSTMENTS. Tangible personal property taxes, state
and federal corporate income taxes, assessments, rent, utility charges, license
fees on transferable licenses, insurance premiums on transferred insurance
policies, unpaid vacation time and other appropriate items shall be prorated to
the date of Closing. If taxes for the current year are unknown, net taxes for
the previous year shall be used for proration purposes, subject to post closing
recalculation and settlement when the current year tax bill is rendered.
16. DEFERRED COMPENSATION PLANS. Buyer is not assuming any liability
for any of Corporation's qualified or non-qualified deferred compensation plans
being maintained for any of Corporation's employees. Sellers shall be
responsible for, at their own cost and expense, any action that may be required
relative to any of such plans, including the termination of any such plans to be
effective prior to the Closing of this transaction.
17. BROKERAGE OR FINDER'S FEE. Each party represents to the other that
no person, corporation or other entity brought about this sale and that each
party represents to the other that there are no real estate brokerage
commissions or other professional service fees to brokers or finders payable as
a result of the completion of this transaction. A party responsible for a
misrepresentation in this regard shall indemnify and hold the other party
harmless from any consequences thereof.
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18. RISK OF LOSS. Sellers assume all risk of loss up to the time of the
Closing. In the event a material loss occurs prior to the Closing, or in the
event the business of the Corporation is closed or interrupted by reason of any
event not in the ordinary course of business, the Buyer shall have the right to
terminate this Agreement on written notice to Sellers, and upon such
termination, there shall be no further liability on the part of the Sellers or
Buyer hereunder.
19. FURTHER ASSURANCES. The parties hereto agree that they will, at any
time and from time to time after the Closing and upon request, do, execute
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and assurance as may be reasonably required in conformity
with this Agreement for the better performance of the duties and obligations of
each party to the other under this Agreement.
20. DEFAULT. In the event of a default by either party relative to the
terms and conditions of this Agreement, if upon written notice from the
non-defaulting party of such default, and the defaulting party's failure to
correct the same after thirty (30) days, or if the defaulting party objects to
the claimed default, the non-defaulting party shall have and any all rights
available to it under the laws of the state of Georgia.
21. NOTICES. All notices under this Agreement shall be in writing and
shall be given to Buyer and Sellers at the applicable address shown above or on
Exhibit "A" attached hereto. Notices shall be hand delivered to the recipient or
mailed by certified mail, return receipt requested, with sufficient postage to
reach the intended destination. Notice shall be deemed served as of the earlier
of (i) the recipient's actual receipt of such notice or (ii) three (3) days
following the first attempt to deliver such notice in accordance with the terms
of this paragraph. Any address may be changed from time to time by any party by
written notice to all other parties hereto, but notice properly mailed or
otherwise given before such change is not invalidated by any such change.
22. STRICT PERFORMANCE. No waiver of or failure to enforce a breach of
this Agreement is a waiver of any other or subsequent breach. No extension of
time granted under this Agreement to perform a part of it extends the time for
performance of another part or any subsequent performance of any part. Time is
of the essence of this agreement.
23. JOINT AND SEVERAL. The rights and obligations under this agreement
are joint and several. Any party hereto may, but is not required to be joined in
any action or proceeding when performance of this Agreement is sought to be
specifically enforced.
24. CUMULATIVE REMEDIES. Each remedy afforded by this Agreement is
cumulative to all remedies provided herein or by law.
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25. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
26. SURVIVAL. All warranties and representations contained herein shall
survive the closing of this transaction.
27. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall constitute one and the same agreement.
28. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties regarding the subject matter hereof and any transactions
contemplated hereby. The parties hereto may by mutual agreement in writing (a)
extend the time for the performance of any of the obligations of the parties
hereto, (b) waive any inaccuracies in the warranties and representations
contained in this agreement, and (c) waive compliance with any of the covenants
contained herein and so waive performance of any of the obligations of the
parties hereto.
29. PERSONS BOUND. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns. Whenever required by the context, the
singular number shall include the plural, the plural the singular, and the use
of any gender shall include any other gender as appropriate in the context.
30. ASSIGNABILITY. This Agreement, or any portion hereof, shall not be
assignable by Sellers or Buyer without the prior written consent of the other
party hereto, which consent may not be unreasonably withhold.
31. ATTORNEY'S FEES. If a dispute arises between the parties relative
to the terms of this Agreement or any closing document, the prevailing party
shall be entitled to recover reasonable attorney fees and costs.
32. BUILDING LEASES AND EQUIPMENT LEASES. Corporation is the holder of
the five (5) real estate leases listed on Exhibit "N" and the Equipment Leases
listed on Exhibit "O". At Closing, Sellers and Corporation will transfer all of
their right, title, and interest in such leases to Buyer. Sellers shall be
responsible for obtaining the consent of any third party required to assign the
Leases.
<PAGE>
In witness whereof, the parties hereto have executed this agreement on
the date first above written.
WITNESSES:
__________________________________ ___________________________________
As to Paul Yurfest PAUL YURFEST, D.D.S.
__________________________________ ___________________________________
As to Larry A. Sweeting LARRY A. SWEETING, D.D.S.
__________________________________ ___________________________________
As to Jeffrey P. Catton JEFFREY P. CATTON
__________________________________ ___________________________________
As to Lee A. Johanson LEE A. JOHANSON, D.D.S
__________________________________ ___________________________________
As to Sammy Carden SAMMY CARDEN, D.D.S.
__________________________________ ___________________________________
As to Robert A. Burns, Jr. ROBERT A. BURNS, JR., D.D.S.
DENTAL CARE ALLIANCE, INC., a
Delaware corporation
By: _______________________________
Steven R. Matzkin, D.D.S.
President
