Doc 24-3 CSHM v Kuhn Response-Purchase Agreement

PURCHASE AGREEMENT

This PURCHASE AGREEMENT ("Agreement"), dated as of January I, 20 13, is by and between Randy Ellis, DDS, an individual ("Seller"), and Jodi Kuhn, DDS ("Buyer"), an individual.

WlTNESSETH:

WHEREAS, Seller owns the stock interests (the ''Interests") of Children's Dental Clinic of Thornton, P.C., a Colorado Professional Corporation (the "Practice") set forth on Schedule A hereto;

WHEREAS, Buyer desires to purchase, and Seller desires to transfer to Buyer (the "Transfer"), all of the Interests (the "Transferred Interests") on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the premises, the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of all of which are hereby acknowledged, the parties agree as follows:

l. Sale and Purchase of Interests.

(a) In accordance with the tenns and conditions set forth herein, at Closing (as hereinafter defined), Seller shall sell, transfer, assign, convey and deliver, and Buyer shall purchase, all of the Transferred Interests free and clear of any and all liens, claims, pledges, charges, options, contractual restrictions and encumbrances whatsoever ("Ellcwnbrances").

(b) At Closing, pursuant to an Assignment and Asswnption Agreement in the form attached hereto as Exhibit l(b) (the "Assignment and Assumption"), Seller shall assign to Buyer all of his right, title and interest acquired upon the formation of the Practice as well as all of his right, title and interest acquired under that certain Purchase Transaction, dated as of August 12, 2008, by and among Seller, Kenneth E. Knott, DDS and Robert F. Andrus, DDS (the "Prior Transactions").

(c) At Closing, Buyer shall deliver to Seller a check in an aggregate amount ofSl00.00.

(d) At Closing, (i) Seller shall deliver to Buyer stock transfer powers or instruments of assignment in the form attached as Exhibit l(d)(i), duly endorsed in blank (the "Stock Powers"); and (ii) Seller shall resign as a director, officer and/or manager of the Practice.

(e) The consummation of the transactions contemplated by this Agreement (the "Closing") shall be effective concurrently with the execution and delivery of this Agreement by each of the parties hereto.

2. Reoresentations and Warranties of Seller. Seller represents and warrants to as follows as of the date hereof and as of Closing:

(a) Ownership. Seller is the legal and beneficial owner of and has good and marketable title to the Interests (as set forth on Schedule A) free and clear of any and all Encumbrances. Seller has no ownership interest in the Practice other than such Interests. Seller has all requisite capacity and authority to own the Interests under applicable law. None of the Interests are certificated and Seller does not hold any certificate(s) representing the Interests. The delivery of the Stock Powers to Buyer will convey to Buyer valid, marketable and indefeasible title to the Transferred Interests, free and clear of any and all liens, claims, pledges, encumbrances, charges, options or contractuaJ restrictions whatsoever. The Interests were duly authorized and are vaLidly issued and are fully paid and non-assessable and none of the Interests was issued in violation of any preemptive rights or any right of first refusal or other similar right in favor of any person.

(b) Authorization and Validity. Seller is a natural person and has all requisite capacity and authority to enter into this Agreement, the Assignment and Assumption and the Stock Powers and to cany out his obligations hereunder and thereunder. This Agreement constitutes and, when executed and delivered, lhe Assignment and Assumption and the Stock Powers will constitute the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with their respective terms, except as may be limited by bankruptcy and

EXHIBIT

3 Kuhn 000173 Case 3:14-cv-01025 Document 24-3 Filed 05/06/14 of 11 PageID #: 323

•

•

insolvency laws and by other laws affecting the rights of creditors generally and except as may be limited by the availability of equitable remedies.

( c) Capitalization. The ownership of all of the issued and outstanding stock interests of the Practice as of the date hereof is as set forth on Schedule A hereto. The Transferred Interests represent 50% of the capital stock and equity or ownership interests in the Practice. Other than this Agreement, there are no contracts, commitments, understandings or arrangements relating to the issuance, sale, transfer or registration of the Transferred Interests or any other equity interest in the Practice.

( d) No Undisclosed Liabilities. With the exception of the liabilities incurred by the Practice in the ordinary course of business, consistent with past practice, the Practice does not have any material liabilities or obligations of any nature, whether absolute, accrued, asserted or unasserted, contingent or otherwise or whether due or to become due, relating to or arising out of any act, omission, transaction, circumstance, sale of goods or services or other condition which occurred or existed on or before the date hereof or Closing, and Seller does not know or have reason to know of any basis for the assertion against the Practice of any such liability or obligation of any nature.

3. Representations and Warranties of Buyer. Buyer represent and warrant to Seller as follows as of the date hereof and as of Closing:

(a) Authorization and Validity. Buyer is a natural person and has all requisite capacity and authority to enter into this Agreement and the Assignment and Assumption and to carry out his or her obligations hereunder and thereunder. This Agreement constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as may be limited by bankruptcy and insolvency laws and by other laws affecting the rights of creditors generally and except as may be limited by the availability of equitable remedies.

(b) Adequate Information. Buyer understands and acknowledges that all documents, records and books pertaining to the Transfer have been made available for inspection by Buyer. Buyer understands and acknowledges that Buyer has had, at a reasonable time prior to the Closing, and continues to have, the opportunity to obtain from Seller and the Practice any additional information, to the extent possessed or obtainable without unreasonable effort or expense, necessary to evaluate the merits and risks of the Transfer. In this regard, Buyer possesses the financial and business experience necessary to make an informed decision to purchase the Transferred Interests.

( c) Acquisition for Investment. Buyer is acquiring the Transferred Interests solely for his or her own account for the purpose of investment and not with a view to any distribution thereof. Buyer understands that the Interests will not be registered under the Securities Act of 1933, as amended, by reason of specific exemptions therefrom which depend upon, among other things, the bona fide nature of Buyer's investment intent and the accuracy of Buyer's representations as expressed herein.

4. Indemnification.

(a) Seller shall indemnify and hold harmless Buyer and his or her successors and assigns and will reimburse such persons from, against and for any damages, claims, costs, loss, liabilities, expenses or obligations (including reasonable attorneys' fees and associated expenses), whether or not involving a third-party claim incurred or suffered by any of them as a result of or arising from: (i) any breach of, or any inaccuracy in, any representation or warranty made by Seller in this Agreement; and (ii) any breach of any covenant, obligation or agreement of Seller in this Agreement.

(b) Buyer shall indemnify and hold harmless Seller and will reimburse Seller from, against and for any damages, claims, costs, loss, liabilities, expenses or obligations (including reasonable attorneys' fees and associated expenses), whether or not involving a third-party claim incurred or suffered by Seller as a result of or arising from: (i) any breach of, or any inaccuracy in, any representation or warranty made by Buyer in this Agreement; (ii) any breach of any covenant, obligation or agreement of Buyer in this Agreement; and (iii) Buyer's ownership of the Transferred Interests after the Closing.

2

Kuhn 000174 Case 3:14-cv-01025 Document 24-3 Filed 05/06/14 of 11 PageID #: 324

•

•

•

( c) Effective as of the Closing, Seller releases, remises and forever discharges the Practice, its directors, officers, shareholders, members, managers, employees, agents, representatives, subsidiaries, affiliated companies, successors and assigns of and from any and all claims, demands, actions, causes of action, liabilities, damages, expenses and suits of every kind, character and description, known or unknown, at law or in equity, which Seller may have had at any time heretofore, may have now or may have at any time hereafter, arising from, relating to, resulting from or in any manner incidental to any and every matter, thing or event whatsoever occurring or failing to occur at any time in the past up to and including the date hereof (other than any claims with respect to a breach of the representations, warranties and covenants contained in this Agreement).

5. Notices. All notices, requests, consents and other communications hereunder shall be in writing and shall be personally delivered, mailed by first-class registered or certified mail, postage prepaid, return receipt requested or delivered by an overnight courier service, delivery charge prepaid:

(a) Ifto Seller, to:

Randy Ellis, DDS 3903 Augusta Lane Pueblo, CO 81001

or at such other address as may be furnished to Buyer by Seller in writing.

(b) Ifto Buyer, to:

Jodi Kuhn, DDS 8223 E. 24th Drive Denver, CO 80238

or at such other address as may be furnished to Seller by Buyer in writing .

6. Miscellaneous. This Agreement: (i) shall be governed by Tennessee law, without reference to its conflict of law principles; (ii) sets forth the entire understanding and agreement of the parties, and supersedes all prior oral or written understandings and agreements, with respect to the subject matter hereof; (iii) shall not be amended or terminated nor any provision hereof waived unless in a writing signed by both parties that expressly sets forth such amendment, termination or waiver; (iv) shall not be transferred or assigned by either party, in whole or part, without the prior written consent of the other party; (v) shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns; (vi) if held to be invalid or unenforceable, in whole or part, such term or provision shall be ineffective only to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms and provisions of this Agreement; and (vii) may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one and the same instrument. It is the intent of the parties that each part hereof shall be given its plain meaning, and that rules of construction that would construe any ambiguity against the draftsman, by virtue of being the draftsman, shall not apply. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover attorneys' fees and costs of litigation in addition to all other remedies available at law or in equity. All expenses incurred in connection herewith shall be borne by the respective party incurring such expense; it being understood that all income taxes arising from the disposition of the Transferred Interests pursuant to this Agreement shall be borne by Seller. The representations, warranties and covenants of the parties contained in this Agreement shall survive the date hereof and shall not be extinguished thereby notwithstanding any investigation or other examination by any party. From time to time, at Buyer's request, and without further consideration, Seller will execute, acknowledge and deliver all instruments of further assurance and do all such acts and things as may reasonably be required more effectively to convey, transfer to and vest in Buyer and his or her assignees, all Transferred Interests to be conveyed pursuant to the terms hereof.

[Remainder of page intentionally left blank]

3


•

•

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and date first above written.

SELLER

BUYER

Jodi Kuhn, DDS

4


•

•

•

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and date first above written.

SELLER

Randy Ellis, DDS

BUYER

4


• Schedule A

Ownership of Interests

Seller Stock Interest Percenta e Rand Ellis, DDS 100%

•

• 5


•

•

•

EXHIBIT l(b)

ASSIGNMENT AND ASSUMPTION AGREEMENT

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement"), is entered into as of January 1, 2013, by and between Randy Ellis, DDS an individual ("Seller"), and Jodi Kuhn, DDS ("Buyer"), an individual.

WITNESSETH:

WHEREAS, Buyer and Seller entered into a Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"), with respect to Interests of Children's Dental Clinic of Thornton, P.C., pursuant to which Seller agreed to sell, assign, transfer, convey and deliver, and Buyer agreed to purchase, all of Seller's right, title and interest in and to the Transferred Interests;

WHEREAS, Seller is a party to the Prior Transactions and Seller desires to assign all his right, title and interest in the Prior Transactions to Buyer pursuant to the terms of the Purchase Agreement.

NOW, THEREFORE, in consideration of the premises and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to them in the Purchase Agreement.

2. Assignment. Seller hereby assigns, transfers and conveys to Buyer all of Seller's right, title and interest, to the extent assignable or transferable by it, in and to the Prior Transactions.

3. Buyer Undertaking. Buyer assumes and agrees to pay, perform and/or discharge in accordance with their terms the liabilities and obligations of Seller arising hereafter under the Prior Transactions (except for liabilities or obligations arising out of any breach of the Prior Transactions prior to the date hereof). Other than as specifically stated herein or in the Purchase Agreement, Buyer assumes no debt, liability or obligation of Seller other than those under the Prior Transactions.

4. No Ratification, Extension or Renewal. This Agreement is not intended to, and does not, in any way ratify, extend or renew any liability that has terminated or expired pursuant to its terms or otherwise.

5. Further Assurances. Seller hereby agrees to take any and all additional actions and to execute, acknowledge and deliver any and all other acts, powers of attorney, instruments or other documents that Buyer may reasonably request in order to effect the intent and purposes of this Agreement and the transactions contemplated hereby and/or by the Purchase Agreement.

6. Remedies. The remedies of Seller and Buyer with respect to any claim arising from a breach of this Agreement shall be as set forth in the Purchase Agreement.

7. Amendment and Modification; Waiver. Subject to applicable law, this Agreement may be amended, modified and supplemented only by written instrument authorized and executed by Seller and Buyer at any time with respect to any of the terms contained herein. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and executed by the party so waiving. The waiver by either party hereto of a breach of any provisions of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach.

8. No Third-Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the parties hereto and their respective successors and permitted assigns and nothing herein is intended or shall be construed to confer upon any person other than the parties hereto and their respective successors and permitted assigns any rights, remedies or claims under, or by any reason of, this Agreement or any term, covenant or condition hereof. Neither

2112544.2


• this Agreement, nor any of the rights, interests or obligations hereunder, may be assigned, in whole or in part, by any party without the prior written consent of the other parties hereto, which consent shall not be umeasonably withheld.

9. Consented Assignment. Anything contained herein to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any claim, right, contract, license or commitment if an attempted assignment thereof without the consent of the other party thereto would constitute a breach thereof or in any material way affect the rights of Seller thereunder, unless such consent is obtained. If such consent is not obtained, or if an attempted assignment would be ineffective or would materially affect the rights thereunder of Seller so that Buyer would not in fact receive all such rights, Seller shall cooperate in any reasonable arrangement designed to provide for Buyer the benefits under any such claim, right, contract, license or commitment, including enforcement of any and all rights of Seller against the other party or parties thereto arising out of the breach or cancellation by such other party or otherwise.

10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE ST ATE OF TENNESSEE WITHOUT GIVING EFFECT TO THE PRINCIPLES OF THE CONFLICTS OF LAWS THEREOF.

11. Inconsistencies with Asset Purchase Agreement. Notwithstanding anything to the contrary contained herein, the terms of this Agreement are subject to the terms, provisions, conditions and limitations set forth in the Purchase Agreement, and this Agreement is not intended to alter the obligations of the parties to the Purchase Agreement. In the event of any inconsistencies between the terms of this Agreement and the terms of the Purchase Agreement, the parties hereto agree that the terms of the Purchase Agreement shall control.

12. Headings. The headings of this Agreement are for purposes ofreference only and shall not limit or otherwise affect the meaning hereof.

13. Counterparts. This Agreement may be executed in any number of counterparts, each of which • shall be deemed an original, but all of which together shall constitute only one instrument.

•

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their names as of the date first above written.

SELLER

BUYER

Jodi Kuhn, DDS

2112544.2 2


•

•

•

this Agreement, nor any of the rights, interests or obligations hereunder, may be assigned, in whole or in part, by any party without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld.

9. Consented Assignment. Anything contained herein to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any claim, right, contract, license or commitment if an attempted assignment thereof without the consent of the other party thereto would constitute a breach thereof or in any material way affect the rights of Seller thereunder, unless such consent is obtained. If such consent is not obtained, or if an attempted assignment would be ineffective or would materially affect the rights thereunder of Seller so that Buyer would not in fact receive all such rights, Seller shall cooperate in any reasonable arrangement designed to provide for Buyer the benefits under any such claim, right, contract, license or commitment, including enforcement of any and all rights of Seller against the other party or parties thereto arising out of the breach or cancellation by such other party or otherwise.

I 0. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE ST ATE OF TENNESSEE WITHOUT GIVING EFFECT TO THE PRINCIPLES OF THE CONFLICTS OF LAWS THEREOF.

I I. Inconsistencies with Asset Purchase Agreement. Notwithstanding anything to the contrary contained herein, the terms of this Agreement are subject to the terms, provisions, conditions and limitations set forth in the Purchase Agreement, and this Agreement is not intended to alter the obligations of the parties to the Purchase Agreement. In the event of any inconsistencies between the terms of this Agreement and the terms of the Purchase Agreement, the parties hereto agree that the terms of the Purchase Agreement shall control.

I2. Headings. The headings of this Agreement are for purposes ofreference only and shall not limit or otherwise affect the meaning hereof.

I3. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute only one instrument.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their names as of the date first above written.

SELLER

Randy Ellis, DDS

BUYER

2112544.2 2


•

•

•

EXHIBIT l(d)(i)

ASSIGNMENT

IRREVOCABLE STOCK POWER

FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer to Jodi Kuhn, DDS all of the stock interests of Children's Dental Clinic of Thornton, P.C., a Colorado Professional Corporation (the "Company"), standing in the name of the undersigned on the books of the Company. The undersigned does hereby irrevocably constitute and appoint Linda S. Zoeller attorney to transfer such stock interests on the books of the Company, with full power of substitution in the premises.

This Irrevocable Stock Power is executed in connection with that certain Purchase Agreement, dated as of January 1, 2013, by and between the undersigned and Jodi Kuhn, DDS.

Dated: January 1, 2013.

S, Stockholder

2112544.2


REDACTED

• JODI KUHN 6223 E 24TH DA. 303-886-0699 DENVER. CO 80238-3069

r}/r'JL /ltttti1t.1'/ 1111! l l(L_ CHASEO JPMorgan Ch ... Bank. NA www.ci-.oom

JODI KUHN

g~v~~~~ D:02~~~~-0699

~~

T.l-101 7o206778 1106

OATE t/ -;!2-2?1? >

001.1.ARS l?J ii:e,":."'

-- -·---~

Zl.-101 !'0'206778 1113

- -- - · - · --·. --···-!!!.


Doc 24-3 CSHM v Kuhn Response-Purchase Agreement

Documents

Transcript of Doc 24-3 CSHM v Kuhn Response-Purchase Agreement