ASSET PURCHASE AGREEMENT
among
MUTUAL HEALTH SYSTEMS, INC.
and
Gentle Dental of Oregon, P.C.
Dated January 2, 1995
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made January 2, 1995, between Gentle Dental of Oregon,
P.C., ("Seller") and Mutual Health Systems, Inc. ("Buyer").
1. Seller is engaged in the practice of dentistry at various locations in
Portland, Oregon, and vicinity, under the name of Gentle Dental.
2. Seller, in connection with the operation of the aforementioned dental
practices, is owner of certain dental equipment, fixtures,
furnishings, leasehold improvements and signage.
3. Seller, in connection with the operation of the aforementioned dental
practices, has incurred certain liabilities, both to third parties and
to Buyer.
4. Buyer is desirous of purchasing certain assets. As consideration for
those assets Buyer shall forgive certain liabilities of Seller to
Buyer, and Buyer shall assume certain third party liabilities of
Seller, upon the terms and conditions hereinafter set forth.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL BENEFITS ACCRUING TO
EACH PARTY HERETO, IT IS AGREED BETWEEN SELLER AND BUYER AS
FOLLOWS:
1. Sale of Assets.
Seller agrees to sell and Buyer agrees to purchase, free from all
liabilities and encumbrances other than those expressly stated herein,
all of Seller's accounts receivable, with a face value of $1,313,054
and an estimated fair market value of $1,273,662.
2. Purchase Price.
The Purchase Price for the Assets (the "Purchase Price") shall be an
interest only, promissory note for $1,273,662, payable by Buyer on
December 31, 1995. The Purchase Price shall be paid upon the Closing
Date. The Closing Date shall be January 2, 1995, at the offices of
Buyer. At such time Seller shall deliver to Buyer a Bill of Sale, and
all other instruments of sale, conveyance or assignment that may be
required for the proper transfer by Seller to Buyer of all of the
assets being sold hereunder, free of all encumbrances other than those
expressly stated herein.
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3. Sellers Indemnity.
Buyer is not assuming any debt, liability, or obligation of Seller,
whether known or unknown, fixed or contingent, other than expressly
stated herein. Seller agrees to indemnify and hold Buyer harmless
against all debt, claims, liabilities and obligations of Seller not
expressly assumed by Buyer, and to pay any and all attorneys fees and
legal costs incurred by Buyer, its successors and assign in connection
therewith.
4. Conditions Precedent to Buyer's Performance.
A. Compliance with the Uniform Commercial Code, Bulk Transfers, or
an opinion of counsel acceptable to Buyer that the transfer
contemplated herein does not constitute a bulk sales transfer
within the meaning of applicable law.
B. Delivery by Seller of any necessary clearances and approvals from
state and/or local taxing authorities.
C. No action, suit, or arbitration before any court or government
body pertaining to or having an effect upon the transaction shall
have been instituted or threatened on or before the Closing Date.
D. All taxes, including, without limitations, state and local sales
and inventory taxes, federal, state, and local income taxes,
license fees and other administrative costs of doing business
affecting or having the potential to affect the assets, shall
have been paid current by Seller to the Closing Date.
5. Documentation Provided.
Seller shall provide Buyer with a Bill of Sale covering all assets
transferred, including the names of all vendors and all other entities
with whom the equipment must re registered for warranty, service, etc.
Seller shall further provide Buyer with a maintenance history and
copies of service contracts covering the assets transferred.
6. Sales Taxes & Transfer Taxes.
Buyer shall pay all sales taxes and / or transfer taxes incurred in
connection with the sale and transfer of the assets.
7. Warranties and Representations of Seller.
A. Seller has good and marketable title to all of the assets free
and clear of any liens, debts, attachments, pledges and other
claims other than as expressly stated herein.
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B. Seller is paid current as of the Closing Date on all payments
relating to the assets, if any.
C. Any and all taxes, including without limitation, state and local
sales and inventory, federal, state, and local income taxes,
license fees and other administrative costs affecting or having
the potential to effect the assets have been paid current as of
the Closing Date.
D. There has not been any default in any obligation to be performed
under any contract to which Seller is a party related to or which
might have an affect upon the assets.
E. There is no suit, action, arbitration, administrative or
governmental proceeding or inquiry pending or, to the best of
Seller's knowledge, threatened against or affecting Seller,
relating to any of the assets.
F. Every consent, approval, authorization or order of any court or
governmental agency that is required for the consummation by
Buyer of the purchase transactions contemplated has been obtained
and will be in effect on the date of the closing.
G. Seller has complied with and is not in violation of applicable
federal, state, and local statutes, ordinances and regulation,
including without limitation, any applicable environmental,
health, building, zoning, or other law, ordinance, or regulation
affecting any of the assets, the premises, or the operation of
Seller's dental practice being conducted at the premises.
H. Seller has fully disclosed all facts and conditions that have or
might reasonable have or might reasonably be expected to have an
adverse impact on the assets.
8. Survival of Representations and Warranties.
All representation, warranties, covenants and agreements of the
parties contained in this agreement, or in any instrument,
certificate, opinion, or other writing provided for herein, shall
survive the Closing.
9. Right to Repurchase Assets.
In the event of the institution of any bankruptcy, insolvency or
receivership proceedings by or against Buyer, Seller shall have a
preferential right, as permitted by law, to repurchase the Assets at
fair market value. Seller must notify Buyer within thirty days of the
date of institution of any bankruptcy, insolvency or receivership
proceedings by or against Buyer of its intention to exercise this
preferential right, and must exercise this
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right within sixty days, of the date of institution of any bankruptcy,
insolvency or receivership proceedings by or against Buyer.
10. Indemnification.
Each party shall indemnify, hold harmless, and defend the other party
from any and all liability, loss, claims, lawsuits, damages, injury,
costs or expenses arising out of or incident to the performance or
nonperformance under this Agreement by such indemnifying party, its
employees, contractors, subcontractors, and agents, including (without
limitation) to the other party hereunder for any claim covered by
insurance, except to the extent the liability of such party exceeds
the amount of such insurance coverage.
11. Governing Law.
This Agreement shall be governed by and construed under the laws of
the State of Washington.
12. Waiver.
The waiver of any covenant, condition or duty hereunder by either
party shall not prevent that party from later insisting upon full
performance of the same.
13. Entire Agreement.
This Agreement constitutes the entire agreement between the parties in
connection with the subject matter hereof, and supersedes all prior
agreements, whether written or oral, and whether explicit or implicit,
which have been entered into before the execution hereof. Should any
litigation or arbitration arise between the parties, neither party
shall (and each party hereby waives the right to) introduce any parol
evidence which would tend to contradict or impeach any of the express
written terms, conditions, and covenants of this Agreement.
14. Notice.
Any notice or other communication required or which may be given
hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed or sent by facsimile, or sent by certified,
registered or express mail, postage prepaid, and shall be deemed given
when so delivered personally, telegraphed or telexed or sent by
facsimile, or if mailed, two days after the day of mailing, as
follows:
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(i) If to MHZ to:
Mutual Health Systems, Inc.
7725 NE Highway 99, Suite B
Vancouver, WA 98665
Attention: President
With a copy to:
Stoel Rives Boley Jones & Grey
900 SW Fifth Avenue, Suite 2300
Portland, OR 97204-1268
Attention: Edward L. Epstein, Esq.
(ii) If to Group:
Tse, Saiget, Watanabe, & McClure, Inc. P.S.
7725 NE Highway 99, Suite B
Vancouver, WA 98665
Attention: President
15. Arbitration.
Agreement which the parties are unable to resolve by mutual agreement
shall be submitted to private arbitration in accordance with the rules
of the American Arbitration Association ("AAA"), except as modified by
this Agreement.
The arbitration shall be conducted by a single, neutral arbitrator
appointed in accordance with AAA procedures. Unless the parties agree
otherwise, the arbitration proceedings and venue for the filing of
exceptions, if any, shall be Multnomah County, OR. Discovery of
documents shall be permitted to the full extent permitted by the
Federal Rules of Civil Procedure ("FRCP"). Other types of discovery
available under the FRCP shall be permitted as the arbitrator shall
find to be appropriate. The parties shall share equally the costs of
the arbitrator and all other costs of arbitration, except that each
party shall be solely responsible for its own attorneys' fees and
expenses. Exceptions to the decision of the arbitrator can be filed in
accordance with RCW 7.04.160; in addition to the grounds recognized in
that statute, an exception may be filed based on mistake of law.
Judgment on the arbitration award can be filed in any court with
jurisdiction.
Arbitration under this Agreement shall be governed by the Federal
Arbitration Act, and by Washington law to the extent not inconsistent
with the Federal Arbitration Act.
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To the greatest extent consistent with law, and except as required in
a judicial proceeding contemplated by this section 5.3, the parties
shall keep all matters relating to any arbitration confidential,
including the existence and subject of the arbitration.
16. Miscellaneous Provisions.
a. Partial Invalidity.
If any one or more of the terms, provisions, promises, covenants,
or conditions of the Agreement the application thereof to any
person or circumstance shall be adjudged to any extent invalid,
unenforceable, void or voidable for any reasons whatsoever by a
court of competent jurisdiction, each and all of the remaining
terms, provisions, promises, covenants and conditions of this
Agreement or their application to other persons or circumstances
shall not be affected thereby and shall be valid and enforceable
to the fullest extent permitted by law.
b. Heading, Titles.
The headings appearing herein are for convenience and reference
only and shall not be deemed to govern, limit, modify or in any
manner affect the scope, meaning or intent of the provisions of
this Agreement.
c. Binding Effect.
Subject to the provisions contained herein, this Agreement shall
be binding upon and inure to the benefit of the parties hereto
and upon their respective successors.
d. Covenants and Conditions.
Each covenant hereof is a condition, and each condition hereof is
as well a covenant by the parties bound thereby unless waived in
writing by the parties hereto.
e. Approval and Consent.
Whenever in this Agreement an approval or consent is required by
one of the parties, the same shall not be unreasonably withheld.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement:
MUTUAL HEALTH SYSTEMS, INC. GENTLE DENTAL OF OREGON, P.C.
JOHN CASTLES WILLIAM SAIGET
- ------------------------------ ------------------------------
JOHN CASTLES WILLIAM SAIGET, DMD
PRESIDENT PRESIDENT
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