SEPARATION AND MUTUAL RELEASE AGREEMENT
BETWEEN
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
AND
PENTEGRA DENTAL GROUP, INC.
PENTEGRA DENTAL GROUP, INC. ("Employer") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Employee")
(Employer and Employee are hereinafter sometimes referred to as the
"Parties") make this Separation and Mutual Release Agreement (this
"Agreement").
Whereas, Employee is currently employed by Employer pursuant to the
terms of a certain Employment Agreement dated July 1, 1997, as amended by an
Amendment also dated July 1, 1997 (referred to herein as the "Employment
Agreement");
Whereas, Employee and Employer are parties to a certain Incentive
Stock Option Agreement dated March 24, 1998 (referred to herein as the
"Option Agreement");
Whereas, Employer and Employee are parties to an Indemnity Agreement
dated March 30, 1998 (referred to herein as the "Indemnity Agreement");
Whereas, the Parties desire an amicable termination of Employee's
service and their mutual obligations under the Employment Agreement;
Whereas, it is the intent of the Parties that the Option Agreement
be terminated;
Now, therefore, for and in consideration of the promises made
between them and for other good and valuable consideration, the Parties agree
as follows:
1. RESIGNATION. Employee hereby resigns (i) his employment and each
office he holds with Employer (including without limitation his offices as
President and Chief Executive Officer of Employer) and any position held by
Employee in subsidiaries and affiliates of Employer and (ii) as a director of
Employer and each of its subsidiaries effective at the later to occur of the
close of business on November 13, 1998 or the time at which the payment
called for by paragraph 3(a) hereof is placed into escrow (the "Effective
Date").
2. RELEASE FROM EMPLOYMENT AGREEMENT. In consideration of the mutual
promises contained herein, Employer and Employee agree to release each other
from any and all liability under the Employment Agreement or otherwise
arising from the employment relationship, and enter this Agreement.
3. PAYMENT.
(a) In consideration of Employee executing this Agreement, giving
Employer the covenant not to solicit employees of Employer or any of its
affiliates or subsidiaries, and not to compete in specified ways, and an
agreement to maintain the secrecy of all confidential and trade
secret information (as hereinafter described and defined in paragraphs 6
through 8 below), and in settlement of any obligation to pay severance pay
which Employer may owe to Employee, Employee will receive a lump sum cash
payment of $350,000 (the "Severance Payment"). Employer will withhold, as
employee taxes, from the Severance Payment an aggregate of $33,075 that must
be withheld to pay federal ($10,000), state ($18,000) and Medicare ($5,075)
taxes. The Severance Payment (net of tax withholdings) will be placed in
escrow by Employer pursuant to the terms of the Escrow Agreement in the form
attached hereto as EXHIBIT A.
(b) To the extent any taxes may be due on the amount paid pursuant
to this Agreement, Employer shall pay related "employer taxes" and Employee
shall pay related "employee taxes," such as federal income tax, social
security tax and Medicare tax. Each Party hereto agrees to indemnify and
hold the other Party harmless for any tax claims or penalties resulting from
the failure by a Party to pay his designated taxes.
(c) By execution of this Agreement, Employee acknowledges and
agrees that for purposes of unemployment compensation benefits, the amount
specified in subparagraph (a) of this paragraph constitutes wages in lieu of
notice for the period from the Effective Date until the date 21 months
following the Effective Date. Accordingly, Employee may not be eligible to
receive unemployment compensation benefits during this period of time.
4. UNPAID SALARY AND BENEFITS.
(a) Not conditioned upon execution of this Agreement, Employee will
receive payment of all accrued but unpaid salary through the Effective Date.
Employee will not receive payment for any accrued benefits.
(b) Employee will have the option of continuing his group insurance
for Employee and his dependents for a period of up to 18 months. Employer
will pay for Employee's health insurance for himself and his dependents
through December 31, 1999, or until Employee obtains other full-time
employment, whichever is sooner.
(c) With respect to expense reimbursements, the Parties agree as
follows:
(i) Employee will present to Employer his corporate American
Express ▇▇▇▇ and Employer will pay the outstanding balance on Employee's
corporate American Express account to the extent that items delineated in
the invoice (a) were incurred by employees of Employer other than Employee
or (b) were business expenses incurred by Employee. Employee agrees that
he will not use his corporate American Express card after the close of
business on the Effective Date;
(ii) Employee will present to Employer Employee's cell phone
invoice and Employer will pay the outstanding balance reflected on such
invoice for service through the Effective Date, but only to the extent that
the outstanding balance of such invoice does not exceed $750; and
-2-
(iii) Employee will present to Employer and Employer will pay the
outstanding balance on invoices rendered to Employee by MCI for conference
calls related to Employer's business.
5. OPTION AGREEMENT AND BONUS.
(a) The Parties agree that the Option Agreement, which covers, in
the aggregate, 333,333 shares of the common stock of Employer (the "Common
Stock"), is terminated as of the Effective Date. Employee represents and
acknowledges that, other than the Option Agreement, he and Employer do not
have any agreements with each other relating to options to purchase Common
Stock and to the extent any such other agreements do exist they are canceled.
(b) The Parties agree that no bonus payment is or will ever become
due to Employee under the terms of the Employment Agreement.
6. NONSOLICITATION OF EMPLOYEES. It is recognized and understood by
the Parties hereto that the employees of Employer are an integral part of
Employer's business, and that it is extremely important for Employer to use
its maximum efforts to prevent the loss of such employees. It is therefore
understood and agreed by the Parties that, because of the nature of the
business of Employer, it is necessary to afford fair protection to Employer
from the loss of any such employees. Consequently, as material inducement to
Employer to pay Employee the sum specified in paragraph 3, Employee covenants
and agrees that for a period commencing on the Effective Date of this
Agreement and ending one year after the Effective Date of this Agreement,
Employee shall not, directly or indirectly, hire or engage or attempt to hire
or engage any individual who shall have been an employee of Employer or any
of its affiliates or subsidiaries at any time during the one-year period
prior to such Effective Date of this Agreement or during the one-year period
immediately following the Effective Date, whether for or on behalf of
Employee or for any entity in which Employee shall have a direct or indirect
interest (or any subsidiary or affiliate of any such entity), whether as a
proprietor, partner, co-venturer, financier, investor, stockholder, director,
officer, employer, employee, servant, agent, representative or otherwise.
Further, Employee covenants and agrees that for a period commencing on the
Effective Date of this Agreement and ending one year after such Effective
Date, Employee shall not, directly or indirectly, or through any other
person, firm, or corporation, or in any capacity as described in this
paragraph above, induce, or attempt to induce or influence any employee of
Employer to terminate employment with Employer, when Employer or any of
Employer's affiliates or subsidiaries desires to retain that employee's
services.
7. NONCOMPETITION. As a further material inducement to Employer to pay
Employee the sum specified in paragraph 3, for a period of one year after the
Effective Date Employee shall not solicit, interfere, or divert any
then-existing business relationship of Employer, including any existing
relationships with any dentists or dental practice management companies who
came to Employee's attention as the result of Employee's relationship with
Employer. Employee acknowledges that this noncompetition covenant is less
onerous than the noncompetition provisions of the Employment Agreement;
Employee further acknowledges that his release from the noncompetition
provisions of the Employment Agreement constitutes good and valuable
-3-
consideration for the agreements and covenants contained herein. Further,
Employee acknowledges and agrees that he was a person of exceptional and
unique knowledge, skill and ability in performing the tasks assigned while
employed with Employer.
8. CONFIDENTIAL INFORMATION. Employee acknowledges and agrees that he
had access to certain confidential information, trade secrets and proprietary
data of Employer by virtue of Employee's employment with Employer, and
Employee's participation in Employer's activities and business. Employee
acknowledges that he has a legal obligation, independent of this Agreement,
to preserve the confidentiality of Employer's trade secrets and confidential
information and return such information to Employer prior to the Effective
Date. As a further material inducement to Employer to pay Employee the sum
specified in paragraph 3, Employee agrees to maintain the secrecy of all
confidential information (as hereinafter defined) and agrees not to disclose
such confidential information to any person(s), employer(s), partnership(s),
corporation(s) or other entity of any nature whatsoever, and agrees to
maintain such confidential information in the strictest confidence and trust.
"Confidential Information" means, in whatever form (tangible or intangible,
including electronic data recorded or retrieved by any means), any and all
trade secrets, confidential knowledge, proprietary data, and information
owned by Employer, furnished by Employer to Employee, or developed by
Employer or any affiliate, agent, contractor or employee of Employer and
which relates to the business or activities of Employer, including strategic
marketing plans, product development plans, cost or pricing information,
vendor or supplier information, confidential customer information,
information regarding proposed joint ventures, mergers, acquisitions, and
other such anticipated or contemplated business ventures of Employer, and
confidential financial information, technical specifications, diagrams, flow
charts, methods, processes, procedures, discoveries, concepts, calculations,
techniques, formulae, systems, production plans, designs, research and
development plans, customer records and lists, manufacturing, financial and
marketing know-how, copyrightable works and applications for registrations
thereof, pending applications for letters patent of the United States and
foreign countries, and any such that are issued, granted or published, in
common law, state and federal rights relating to and under any trademarks,
trade names or service marks (and also including any of the foregoing
provided to Employee by or on behalf of Employer prior to the Effective Date
of this Agreement). The term "Confidential Information" expressly excludes
information which (1) was available to the public prior to the time of
disclosure to, or discovery of production by Employee; (2) becomes available
to the public through no act or omission of Employee; or (3) becomes
available to Employee through or from a third party who is not under any
obligation of confidentiality to Employer.
9. INJUNCTIVE RELIEF. Employee further agrees and acknowledges that
should he breach his obligation under paragraphs 6, 7, or 8, Employer will be
entitled to enforce the provisions of this paragraph by seeking injunctive
relief, in addition to recovering any monetary damages Employer may sustain
as a result of such breach.
10. UNDERSTANDING OF EMPLOYEE. EMPLOYEE HAS CAREFULLY READ AND CONSIDERED
THE PROVISIONS OF THIS AGREEMENT AND, HAVING DONE SO, AGREES THAT THE
RESTRICTIONS SET FORTH HEREIN ARE REASONABLE AND ARE REASONABLY REQUIRED FOR THE
PROTECTION OF THE BUSINESS
-4-
INTERESTS AND GOODWILL OF EMPLOYER AND ITS BUSINESS, OFFICERS, DIRECTORS AND
EMPLOYEES. EMPLOYEE FURTHER AGREES THAT THE RESTRICTIONS SET FORTH IN THIS
AGREEMENT ARE NOT MEANT TO IMPAIR EMPLOYEE'S ABILITY TO SECURE EMPLOYMENT
WITHIN THE FIELD OR FIELDS OF EMPLOYEE'S CHOICE, INCLUDING THOSE AREAS IN
WHICH EMPLOYEE HAS BEEN EMPLOYED BY EMPLOYER BUT INSTEAD TO PROTECT THE
CONFIDENTIALITY OF ITS CONFIDENTIAL INFORMATION, TRADE SECRETS, AND
LEGITIMATE BUSINESS INTERESTS.
11. FURTHER RELEASES OF RELEASED PARTIES AND EMPLOYEE.
(a) For and in consideration of the promises made in this
Agreement, Employee agrees to RELEASE, ACQUIT AND FOREVER DISCHARGE Employer,
its directors, officers, employees, agents, attorneys, affiliates,
subsidiaries, stockholders, predecessors, transferees, trustees, assignees,
insurers, and all other persons or entities affiliated with or in privity
with any of them (collectively the "Released Parties") from any and all
claims, demands, causes of action, debts, liens, judgments, damages or
liabilities of any nature whatsoever, that arose prior to the Effective Date
of this Agreement. The intent and purpose of this Agreement is to release
and discharge all claims, demands and causes of action, whether known or
unknown, unless otherwise expressly excluded by this Agreement and excluding
any breach of this Agreement. The release of liabilities is intended to
include, but not be limited to, the following: any and all claims arising
from Employee's Employment Agreement and employment with any of the Released
Parties or arising from the termination of that employment and Employment
Agreement; any claims of violation of Title VII of the Civil Rights Act of
1964, the Employee Retirement Income Security Act of 1974, the Fair Credit
Reporting Act, or the Americans with Disabilities Act, any state
antidiscrimination statute or any and all claims for breach of contract or
wrongful discharge; any and all claims for defamation, damage to personal or
business reputation, or impairment of economic opportunity; any and all
claims for intentional or negligent infliction of emotional distress; any and
all claims for loss of consortium, damage to family or business
relationships, and any alleged breach of the covenant of good faith and fair
dealing; any and all claims for an alleged breach of fiduciary duties or
breach of corporate officer or director responsibilities; any and all claims
for personal injury; any and all claims for tortious interference with
contractual relationships or any other tortious conduct; any and all claims
for reimbursement, bonus, commission or other incentives; any and all claims
for employment discrimination including, but not limited to, any age
discrimination claims brought under the Age Discrimination in Employment Act;
any and all claims for injunctive or other equitable relief; any and all
claims arising under federal, state or local statute, common law, regulation
or ordinance; and any and all other clauses for compensatory, statutory, or
punitive damages.
(b) For and in consideration of the promises made in this Agreement,
Employer agrees to release, acquit and forever discharge Employee from any and
all claims, demands, causes of action, derivative suits, debts, liens,
judgments, damages or liabilities of any nature whatsoever that arose prior to
the Effective Date of this Agreement. The intent and purpose of this Agreement
is to release and discharge all claims, demands and causes of action, whether
known or unknown,
-5-
unless otherwise expressly excluded by this Agreement and excluding any
breach of this Agreement. The release of liabilities is intended to include,
but not be limited to, the following: any and all claims arising from
Employee's employment with any of the Released Parties; any and all claims
for an alleged breach of fiduciary duties or breach of corporate officer or
director responsibilities, including, without limitation, all matters
concerning Employer's public offerings of common stock and convertible debt;
any and all claims for tortious interference with contractual relationships
or any other tortious conduct; claims for back wages, future wages, bonuses,
reinstatement, accrued vacation benefits and sick time, any and all claims
for injunctive or other equitable relief; any and all claims arising under
federal, state, or local statute, common law, regulation or ordinance; and
any and all other claims for compensatory, statutory, or punitive damages.
12. NONDISPARAGEMENT AND REFERENCES. Employee and the Released Parties
further promise and agree that they will not damage, or attempt to damage,
the business reputation or goodwill of each other. The Released Parties
further agree that should any third party contact them for reference
information concerning Employee, the Released Parties will express a
favorable opinion of Employee's performance while employed by Employer.
Employer will not use Employee's name in any press release, annual report,
proxy statement or other documents that will receive widespread public
circulation without Employee's prior consent or, in the absence of such
consent, without the advise of outside counsel to Employer that the use of
Employee's name is legally required.
13. INDEMNITIES AND ASSURANCES.
(a) It is understood and agreed that the releases of liability
described in this Agreement are material provisions of this Agreement.
Accordingly, Employee and Employer, covenant and promise not to ▇▇▇ or
otherwise pursue legal action against the other with respect to any released
claim, demand or cause of action, and further covenant and promise to
indemnify and defend the other from any and all such claims, demands and
causes of action, including the payment of reasonable costs and attorneys'
fees. Employee agrees that should any legal action be pursued on his behalf
by any person or other entity against Employer regarding the claims released
in paragraph 11, Employee will not accept recovery from such action, will
assign any recovery to Employer, and agrees to indemnify Employer against
such claims and any assessment of damages. Employer and its subsidiaries
agree that should any legal action be pursued on their behalf by any person
or other entity against Employee regarding the claims released in paragraph
11, they will not accept recovery from such action, will assign any recovery
to Employer, and agree to indemnify Employee against such claims and
assessment of damages.
(b) The Indemnity Agreement shall survive the Effective Date and
remain in full force and effect. In the event of a conflict between the
terms of this Agreement and the terms of the Indemnity Agreement, the terms
of the Indemnity Agreement shall control.
-6-
14. NOTICE AND CURE. If Employee or Employer determine that the other
has breached this Agreement, the non-breaching party will notify the party in
breach of that fact in writing and the party in breach and will be afforded
ten (10) days to cure the breach.
15. RETURN OF PROPERTY. Employee acknowledges that, in addition to
signing this Agreement, he agrees to return on the Effective Date to Employer
any and all of Employer's property entrusted to him, such as (but not limited
to) marketing plans and related information, product development plans and
related information, trade secret information, pricing information, customer
information, vendor information, financial information, telephone lists,
computer software and hardware, keys, credit cards, vehicle, telephone,
computer, and office equipment and that he will not retain copies of any
Confidential Information.
16. NO ADMISSION OF LIABILITY. The Parties understand and agree that
neither the making of this Agreement nor the fulfillment of any condition or
obligation of this Agreement constitutes an admission of any liability or
wrongdoing on the part of the other or any Released Party from liability by
this Agreement. All liability by either Party to the other has been and is
expressly denied.
17. FUTURE COOPERATION. Employee agrees that in all future litigation
involving Employer for which Employer requests Employee's cooperation that he
will fully cooperate with Employer subject to Employee's reasonable
availability. In return for this cooperation, Employer agrees to pay
Employee all reasonable costs incurred by Employee due to his cooperation and
compensate him at the rate of $180 per hour (including travel) for such
services. Employer agrees to pay Employee all such costs and compensation
within thirty (30) days of receiving an appropriate invoice.
18. LAW APPLICABLE AND SEVERABILITY. It is intended that the provisions
of this Agreement shall be enforced to the fullest extent permissible under
the laws and public policies of each jurisdiction in which enforcement of
this Agreement is sought. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Arizona. In the event
any term or condition or provision of this Agreement shall be determined to
be invalid, illegal or unenforceable by a court of competent jurisdiction,
the remaining terms, conditions and provisions of this Agreement shall remain
in full force and effect to the extent permitted by law.
19. STATEMENT OF FULL UNDERSTANDING. The Parties acknowledge by signing
this Agreement that they have read this Agreement, that they fully understand
it, that they have been advised by legal counsel, that they have not
transferred, assigned or conveyed any of the claims, rights or entitlements
covered by this Agreement, that they have had sufficient time to consider the
terms of this Agreement, that they have received and relied on no
representations, promises or inducements not otherwise expressed in this
Agreement, and that they have signed this Agreement KNOWINGLY AND VOLUNTARILY
AND WITH THE FULL UNDERSTANDING THAT THIS AGREEMENT AFFECTS THEIR LEGAL
RIGHTS.
-7-
20. ATTORNEY CONSULTATION. EMPLOYEE ACKNOWLEDGES THAT HE HAS BEEN
ADVISED TO CONSULT WITH AN ATTORNEY OF HIS CHOICE, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ABOUT THE
TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT HE HAS HAD THE BENEFIT OF
INDEPENDENT LEGAL ADVICE WITH RESPECT TO THIS AGREEMENT AND THE MATTERS
PROVIDED FOR HEREIN. EMPLOYEE HAS NOT RELIED UPON EMPLOYER OR ITS EMPLOYEES
OR ADVISORS FOR SUCH PURPOSES.
21. TIME TO REVIEW. Employee understands that this Agreement includes a
release of claims arising under the Age Discrimination in Employment Act.
Employee understands and warrants that he has been offered a period of
twenty-one days to review and consider this Agreement. By his signature
below, Employee warrants that he has been fully and fairly advised by his
legal counsel as to the terms of this Agreement. Employee further warrants
that he has used as much or all of his twenty-one day period as he wished
before signing, and warrants that he has done so.
22. REVOCATION AND NOTICE. Employee further warrants that he
understands that he has until 5 p.m. (Arizona Time) on the seventh day
following the execution of this Agreement to revoke this Agreement by notice
in writing to ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and General Counsel,
of Employer. Such notice shall be delivered to ▇▇. ▇▇▇▇▇▇ by facsimile at
214/953-5736 with a copy to ▇▇▇ ▇. ▇▇▇▇, Senior Vice President and Chief
Financial Officer by facsimile at 602/952-0544 and the original delivered by
regular mail, return receipt requested to ▇▇. ▇▇▇▇▇▇'▇ attention at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. This Agreement shall be binding,
effective, and enforceable upon the Parties upon the expiration of this
seven-day revocation period if ▇▇. ▇▇▇▇▇▇ has not received Employee's
revocation.
23. WAIVER AND AMENDMENT. No waiver of any of the terms of this
Agreement shall be valid unless in writing and signed by all Parties to this
Agreement. No waiver or default of any term of this Agreement shall be deemed
a waiver of any subsequent breach or default of the same or similar nature.
This Agreement may not be amended except by writing signed by all Parties.
24. PARAGRAPH HEADINGS. Paragraph headings are for ease of reading and
do not alter the meaning of any terms of this Agreement.
This document was signed to become effective on the 13th day of November,
1998.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
PENTEGRA DENTAL GROUP, INC.
-8-
BY:
/s/ ▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
▇▇▇ ▇. ▇▇▇▇, Senior Vice President and Chief
Financial Officer
-9-
EXHIBIT A
ESCROW AGREEMENT
EXHIBIT A
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement"), entered into effective as of
the 13th day of November, 1998, by and among Pentegra Dental Group, Inc.
("Employer"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Employee"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P., a
Texas limited liability partnership (the "Escrow Agent"),
W I T N E S S E T H:
WHEREAS, Employer and Employee have entered into that certain Separation
and Mutual Release Agreement dated November 13, 1998 (the "Separation
Agreement"), pursuant to which, the parties have negotiated an amicable
termination of Employee's service and their mutual obligations under the
Employment Agreement between the Employer and Employee dated July 1, 1997, as
amended by an Amendment also dated July 1, 1997 ( the "Employment
Agreement"); and
WHEREAS, in consideration of the Employee executing the Separation
Agreement, and in settlement of any obligation to pay severance pay or any
other amounts of pay which Employer may owe to Employee, Employee is entitled
to receive a lump sum cash payment of $350,000, net of federal, state and
Medicare taxes that Employer is obligated to withhold aggregating $33,075
(the "Severance Payment"); and
WHEREAS, under the terms of the Separation Agreement, the Severance
Payment is to be held in escrow by Escrow Agent until such time that the
conditions set forth in this Agreement have been satisfied;
NOW THEREFORE, in consideration of the mutual representations, warranties
and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. Employer and Employee hereby designate
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P., as Escrow Agent, and Escrow Agent accepts such
appointment for the purposes hereinafter set forth.
2. DEPOSIT IN ESCROW. On the date of this Agreement, Employer shall
deliver to Escrow Agent the Severance Payment ($316,925). The Severance
Payment and interest earned thereon shall be distributed by Escrow Agent only
in accordance with Section 3 below. Escrow Agent will place the Severance
Payment in an interest bearing account of its choice.
3. DISTRIBUTION FROM ESCROW. The Severance Payment and interest earned
thereon shall be held in escrow under the terms of this Agreement and
released by the Escrow Agent upon the following terms:
(a) Upon the delivery of a written notice from Employee to both
Employer and Escrow Agent (in the form of EXHIBIT A) indicating that Employee
will not exercise his right under the Age Discrimination in Employment Act to
revoke the Separation Agreement, with such delivery occurring at any time on
or after November 23, 1998 but in no case later than November 29, 1998, the
Escrow Agent shall deliver the Severance Payment to Employee by wire transfer
to the address set forth in the notice.
(b) In the event that prior to November 30, 1998 neither Escrow
Agent nor Employer has received notice from Employee indicating that Employee
will exercise his right under the Age Discrimination in Employment Act to
revoke the Separation Agreement, Escrow Agent shall deliver the Severance
Payment and interest earned thereon to Employee by wire transfer in
accordance with the instructions set forth in the form of notice attached
hereto as EXHIBIT A.
(c) Except as provided above the Escrow Agent shall not release or
make any disbursements of the Severance Payment. Upon disbursement of the
Severance Payment in
-2-
accordance with this Section 3, this Agreement shall be terminated and the
Escrow Agent shall be released and discharged from any further obligations
hereunder.
4. LIABILITY OF THE ESCROW AGENT. The duties of the Escrow Agent
hereunder shall be limited to the observance of the express provisions of
this Agreement. The Escrow Agent shall not be subject to, or be obliged to
recognize, any other agreement between the parties hereto or directions or
instructions not specifically set forth or provided for herein. The Escrow
Agent may rely upon and act upon any instrument received by it pursuant to
the provisions of this Agreement which it in good faith believes to be
genuine and in conformity with the requirements of this Agreement. Except as
expressly provided in this Agreement, the Escrow Agent shall have no duty to
determine or inquire into the happening or occurrence of any event or the
performance or failure of performance of any of Employer or Employee with
respect to arrangements or contracts between them or with others. Anything
in this Agreement to the contrary notwithstanding, the Escrow Agent shall not
be liable to any person for anything which it may do or refrain from doing in
connection with this Agreement, unless the Escrow Agent is guilty of gross
negligence or willful misconduct.
5. INDEMNIFICATION OF THE ESCROW AGENT. Employer and Employee shall
indemnify and hold the Escrow Agent, its employees, officers, agents,
successors and assigns harmless from and against any and all loss, cost,
damages or expenses (including reasonable attorneys' fees) it or they may
sustain by reason of the Escrow Agent's service as escrow agent hereunder,
except such a loss, cost, damage or expense (including reasonable attorneys'
fees) incurred by reason of such acts or omissions by the Escrow Agent
constituting gross negligence or willful misconduct.
6. REMEDIES OF THE ESCROW AGENT.
(a) In the event of any dispute hereunder, or if conflicting demands
or notices are made upon the Escrow Agent, or in the event the Escrow Agent in
good faith is in doubt as to what action it should take hereunder, the Escrow
Agent shall have the right to (i) stop all further
-3-
proceedings in, and performance of, this Agreement and instructions received
hereunder; and/or (ii) file a suit in interpleader and obtain an order from a
court of competent jurisdiction requiring all persons involved to interplead
and litigate in such court their several claims and rights with respect to
the Severance Payment.
(b) While any legal proceeding arising out of this Agreement is
pending, the Escrow Agent shall have the right to stop all further
proceedings in, and performance of, this Agreement and instructions received
hereunder until all differences shall have been resolved by agreement or a
final order.
(c) The Escrow Agent may from time to time consult with legal
counsel of its own choosing in the event of any disagreement, controversy,
question or doubt as to the construction of any of the provisions hereof or
its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in good faith in accordance with the opinion and
instructions of such counsel.
7. NOTICES. Unless otherwise expressly indicated, any notice or
communication hereunder or in any agreement entered into in connection with the
transactions contemplated hereby must be in writing and given by depositing the
same in the United States mail, addressed to the party to be notified, postage
prepaid and registered or certified with return receipt requested, or by
delivering the same in person or by facsimile transmission. Such notice shall
be deemed received on the date on which it is hand-delivered or received by
facsimile transmission or on the second
-4-
business day following the date on which it is so mailed. For purposes of
notice, the addresses of the parties shall be:
If to Employer: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and General Counsel
Pentegra Dental Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
fax #: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇ ▇. ▇▇▇▇
Senior Vice President and Chief Financial
Officer
Pentegra Dental Group, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
fax #: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
fax #: (▇▇▇) ▇▇▇-▇▇▇▇
If to Employee: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
fax #: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Escrow Agent: ▇▇▇▇▇ ▇. ▇▇▇▇, III
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
fax #: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for notice by written notice given to the
other parties in accordance with this Section.
8. AMENDMENT. This Agreement may be amended, modified or supplemented
only by an instrument in writing executed by all the parties hereto.
-5-
9. ASSIGNMENT. Neither this Agreement nor any right created hereby or
in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto except by
Employer to an affiliate of Employer.
10. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
11. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as part of this
Agreement a provision as similar in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable.
12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS
OF LAWS) OF THE STATE OF TEXAS. THE PARTIES AGREE THAT THIS AGREEMENT SHALL
BE PERFORMABLE IN DALLAS COUNTY, TEXAS.
13. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
[Intentionally Left Blank]
-6-
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.
By:
--------------------------------
Its:
-------------------------------
EMPLOYER
By:
--------------------------------
Its:
-------------------------------
EMPLOYEE
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-7-
