ASSET CONTRIBUTION AGREEMENT
BY AND AMONG
PENTEGRA DENTAL GROUP, INC.,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., P.A.,
and
▇▇▇▇▇ ▇▇▇▇▇▇▇, D.D.S.
TABLE OF CONTENTS
Page
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Section 1. TERMS OF THE CONTRIBUTION
1.2 CONTRIBUTION OF ASSETS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 EXCLUDED ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 PURCHASE PRICE; ASSUMPTION OF LIABILITIES . . . . . . . . . . . . . . . . 2
1.5 SUBSEQUENT ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR AND SHAREHOLDERS.
2.1 CORPORATE EXISTENCE; GOOD STANDING. . . . . . . . . . . . . . . . . . . . 2
2.2 POWER AND AUTHORITY FOR TRANSACTIONS. . . . . . . . . . . . . . . . . . . 3
2.3 PERMITS, LICENSES AND GOVERNMENTAL AUTHORIZATIONS . . . . . . . . . . . . 3
2.4 CONSENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 DISTRIBUTIONS AND REPURCHASES . . . . . . . . . . . . . . . . . . . . . . 3
2.6 CORPORATE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.7 CONTRIBUTOR'S FINANCIAL INFORMATION . . . . . . . . . . . . . . . . . . . 3
2.8 LEASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.9 CONDITION OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.10 TITLE TO AND ENCUMBRANCES ON PROPERTY . . . . . . . . . . . . . . . . . . 4
2.11 INVENTORIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.12 INTELLECTUAL PROPERTY RIGHTS; NAMES . . . . . . . . . . . . . . . . . . . 4
2.13 DIRECTORS AND OFFICERS; PAYROLL INFORMATION; EMPLOYEES. . . . . . . . . . 4
2.14 LEGAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.15 CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.16 SUBSEQUENT EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.17 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.18 COMMISSIONS AND FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.19 LIABILITIES; DEBT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.20 INSURANCE POLICIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.21 EMPLOYEE BENEFIT PLANS. . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.22 ADVERSE AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.23 COMPLIANCE WITH LAWS IN GENERAL . . . . . . . . . . . . . . . . . . . . . 8
2.24 THIRD PARTY PAYORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.25 NO UNTRUE REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . 8
2.26 BANKING RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.27 OWNERSHIP INTERESTS OF INTERESTED PERSONS; COMPETITORS. . . . . . . . . . 8
2.28 PAYORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. REPRESENTATIONS AND WARRANTIES OF PENTEGRA
3.1 CORPORATE EXISTENCE: GOOD STANDING. . . . . . . . . . . . . . . . . . . . 9
3.2 POWER AND AUTHORITY; CONSENTS . . . . . . . . . . . . . . . . . . . . . . 9
3.3 PERMITS, LICENSES AND GOVERNMENTAL AUTHORIZATIONS . . . . . . . . . . . . 9
3.4 LEGAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.5 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.6 COMMISSIONS AND FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.7 CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.8 NO UNTRUE REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4. COVENANTS OF CONTRIBUTOR AND SHAREHOLDERS.
4.1 CONSUMMATION OF AGREEMENT; EXHIBITS . . . . . . . . . . . . . . . . . . . 10
4.2 BUSINESS OPERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3 ACCESS AND NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.4 APPROVALS OF THIRD PARTIES AND PERMITS AND CONSENTS . . . . . . . . . . . 10
4.5 ACQUISITION PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.6 FUNDING OF ACCRUED EMPLOYEE BENEFITS. . . . . . . . . . . . . . . . . . . 11
4.7 EMPLOYEE MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.8 DISTRIBUTIONS AND REPURCHASES . . . . . . . . . . . . . . . . . . . . . . 11
4.9 REQUIREMENTS TO EFFECT ACQUISITION. . . . . . . . . . . . . . . . . . . . 11
4.10 ACCOUNTING AND TAX MATTERS. . . . . . . . . . . . . . . . . . . . . . . . 11
4.11 WAIVER OF BULK TRANSFER COMPLIANCE. . . . . . . . . . . . . . . . . . . . 11
4.12 LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.13 HIRING OF EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.14 EMPLOYEE BENEFIT PLANS. . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.15 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5. COVENANTS OF PENTEGRA
5.1 CONSUMMATION OF AGREEMENT; EXHIBITS . . . . . . . . . . . . . . . . . . . 12
5.2 APPROVALS OF THIRD PARTIES AND PERMITS AND CONSENTS . . . . . . . . . . . 12
Section 6. COVENANTS OF PENTEGRA AND CONTRIBUTOR AND SHAREHOLDERS
6.1 FILINGS; OTHER ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7. PENTEGRA CONDITIONS PRECEDENT
7.1 REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . . 13
7.2 COVENANTS AND CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 13
7.3 PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.4 NO MATERIAL ADVERSE CHANGE. . . . . . . . . . . . . . . . . . . . . . . . 13
7.5 DUE DILIGENCE REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.6 APPROVAL BY THE BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . 13
7.7 SERVICE AGREEMENT; GUARANTY AGREEMENT . . . . . . . . . . . . . . . . . . 13
7.8 EMPLOYMENT ARRANGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.9 CONSENTS AND APPROVALS. . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.10 CLOSING DELIVERIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.11 DEBT AND RECEIVABLES. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.12 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.13 NO CHANGE IN WORKING CAPITAL. . . . . . . . . . . . . . . . . . . . . . . 13
7.14 SECURITIES APPROVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8. CONTRIBUTOR'S AND SHAREHOLDERS' CONDITIONS PRECEDENT
8.1 REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . . 14
8.2 COVENANTS AND CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 14
8.3 PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.4 CLOSING DELIVERIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.5 SECURITIES APPROVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 9. CLOSING DELIVERIES
9.1 DELIVERIES OF CONTRIBUTOR AND SHAREHOLDERS. . . . . . . . . . . . . . . . 14
9.2 DELIVERIES OF PENTEGRA. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 10. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
10.1 NATURE AND SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.2 INDEMNIFICATION BY PENTEGRA . . . . . . . . . . . . . . . . . . . . . . . 16
10.3 INDEMNIFICATION BY CONTRIBUTOR AND SHAREHOLDERS . . . . . . . . . . . . . 17
10.4 INDEMNIFICATION PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . 18
10.5 RIGHT OF SETOFF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 11. TERMINATION
Section 12. TRANSFER REPRESENTATIONS
12.1 TRANSFER RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12.2 INVESTMENTS; COMPLIANCE WITH LAW. . . . . . . . . . . . . . . . . . . . . 19
12.3 ECONOMIC RISK; SOPHISTICATION . . . . . . . . . . . . . . . . . . . . . . 20
Section 13. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
Section 14. MISCELLANEOUS
14.1 TAX COVENANT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14.2 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14.3 FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.4 EACH PARTY TO BEAR COSTS. . . . . . . . . . . . . . . . . . . . . . . . . 21
14.5 PUBLIC DISCLOSURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.7 CAPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.8 INTEGRATION OF EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.9 ENTIRE AGREEMENT/AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . 21
14.10 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
14.11 BINDING EFFECT/ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . 22
14.12 COSTS OF ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . 22
14.13 PRORATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
14.14 AMENDMENTS; WAIVERS. . . . . . . . . . . . . . . . . . . . . . . . . 22
14.15 ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
14.16 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ASSET CONTRIBUTION AGREEMENT
This ASSET CONTRIBUTION AGREEMENT (this "Agreement"), made and executed
as of August 20, 1997, is by and among PENTEGRA DENTAL GROUP, INC., a
Delaware corporation ("Pentegra"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., P.A., a Florida
professional association ("Contributor") and ▇▇▇▇▇ ▇▇▇▇▇▇▇, D.D.S.,
shareholder of Contributor (referred to herein as "Shareholder" or
"Shareholders").
WITNESSETH:
WHEREAS, Contributor operates a dental practice ("Business") and
Pentegra is engaged in the business of managing certain non-dentistry
aspects of dental practices;
WHEREAS, Contributor desires to contribute to Pentegra, and Pentegra
desires to receive from Contributor, certain assets of Contributor;
WHEREAS, Pentegra or its affiliated designee has entered into or intends
to enter into Agreements and Plans of Reorganization, Asset Contribution
Agreements and other acquisition agreements (collectively, the "Other
Agreements") with such persons or entities or the stockholders of such
entities listed on EXHIBIT A (together with Contributor, the "Target
Companies");
WHEREAS, it is intended for Federal income tax purposes that the
transfers contemplated by this Agreement, the Other Agreements and Pentegra's
initial public offering ("Initial Public Offering") of shares of its common
stock, par value $.01 per share ("Pentegra Common Stock") shall qualify as an
exchange within the meaning of Section 351 of the Internal Revenue Code of
1986, as amended ("IRC" or "Code");
WHEREAS, the consummation of the transfers to Pentegra pursuant to this
Agreement is intended to occur in connection with, and is conditioned upon,
the simultaneous consummation of the transfers contemplated by the Other
Agreements and the Initial Public Offering.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for other good and valuable consideration, the
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION
1. TERMS OF THE CONTRIBUTION.
1.1 THE CLOSING. The closing of the transactions contemplated hereby
shall take place at 10:00 am local time, at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P., on the day on which the Initial Public Offering of Pentegra Common
Stock is consummated. The date on which the Closing occurs is hereinafter
referred to as the "Closing Date".
1.2 CONTRIBUTION OF ASSETS. Subject to and upon the terms and
conditions contained herein, on the Closing Date, Contributor shall convey,
transfer, deliver and assign to Pentegra or any affiliate of Pentegra
designated by Pentegra all of Contributor's right, title and interest in and
to those certain assets described on EXHIBIT 1.1 attached hereto
(individually, "Asset", and collectively "Assets"), free and clear of all
obligations, security interests, claims, liens and encumbrances, except as
specifically assumed, or taken subject to, by Pentegra pursuant to SECTION
1.3(b) hereof.
1.3 EXCLUDED ASSETS. There shall be excluded from the Assets to be
transferred and contributed hereunder, and Contributor shall retain all of
its right, title and interest in and to, the assets not specifically
transferred hereunder, including without limitation, the assets described on
EXHIBIT 1.2 (the "Excluded Assets").
1.4 PURCHASE PRICE; ASSUMPTION OF LIABILITIES. As consideration for the
Assets and the representations, warranties and agreements of Contributor
contained herein, Pentegra shall, on the Closing Date:
(a) Cause to be transferred to Contributor the consideration
specified in ANNEX I attached hereto (the "Acquisition Consideration"); and.
(b) Except as otherwise provided herein, assume and perform or
discharge on or after the Closing Date, the contracts, leases, obligations,
commitments, liabilities and indebtedness of Contributor listed on EXHIBIT
1.3(b) attached hereto to the extent that such obligations, commitments,
liabilities and indebtedness are current and not otherwise in default. (the
"Assumed Liabilities"). Notwithstanding any contrary provision contained
herein, Pentegra shall not be deemed to have assumed, nor shall Pentegra
assume: (i) any liability, commitment or obligation or trade payable or
indebtedness not specifically disclosed on EXHIBIT 1.3(b), (ii) any liability
set forth on EXHIBIT 1.3(b) which may be incurred by reason of any breach of
or default under such contracts, leases, commitments or obligations which
occurred on or before the Closing Date; (iii) any liability for any employee
benefits payable to employees of Contributor, including, but not limited to,
liabilities arising under any Contributor Plan (as defined in SECTION 2.21
hereof); (iv) any liability based upon or arising out of a violation of any
antitrust or similar restraint-of-trade laws by any Shareholder or
Contributor, including, without limiting the generality of the foregoing, any
such antitrust liability which may arise in connection with agreements,
contracts, commitments or orders for the sale of goods or provision of
services by Contributor reflected on the books of Contributor at or prior to
the Closing Date; (v) any liability based upon or arising out of any tortious
or wrongful actions of Contributor, any licensed professional employee or
independent contractor of Contributor or any Shareholder, (vi) any liability
for the payment of any taxes of Contributor or any Shareholder, including
without limitation, sales, use and other transfer taxes and income taxes
arising from or by reason of the transactions contemplated by this Agreement;
(vii) any indebtedness secured by deeds of trust or mortgages on real
property; nor (viii) any liability incurred or to be incurred pursuant to any
malpractice or other suits or actions pending against Contributor or any
Shareholder.
1.5 SUBSEQUENT ACTIONS. If, at any time after the Closing Date, Pentegra
shall consider or be advised that any deeds, bills of sale, assignments,
assurances or any other actions or things are necessary or desirable to vest,
perfect or confirm of record or otherwise in Pentegra its right, title or
interest in, to or under any of the Assets or otherwise to carry out this
Agreement, in return for the consideration set forth in this Agreement,
Contributor and Shareholders shall execute and deliver all such deeds, bills
of sale, assignments and assurances and take and do all such other actions
and things as may be necessary or desirable to vest, perfect or confirm any
and all right, title and interest in, to and under the Assets in Pentegra or
otherwise to carry out this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR AND SHAREHOLDERS.
Contributor and Shareholders, jointly and severally, hereby represent and
warrant to Pentegra as follows:
2.1 CORPORATE EXISTENCE; GOOD STANDING. Contributor is a professional
corporation or association, as applicable, duly organized, validly existing
and in good standing under the laws of the State of
Florida. Contributor has all necessary corporate powers to own all of its
assets and to carry on its business as such business is now being conducted.
Contributor does not own stock in or control, directly or indirectly, any
other corporation, association or business organization, nor is Contributor a
party to any joint venture or partnership. The Shareholders are the sole
shareholders of Contributor and own all outstanding shares of capital stock
free of all security interests, claims, encumbrances and liens in the amounts
set forth on EXHIBIT 2.1. Each share of Contributor's common stock has been
legally and validly issued and fully paid and nonassessable. No shares of
capital stock of Contributor are owned by Contributor in treasury. There are
no outstanding (a) bonds, debentures, notes or other obligations the holders
of which have the right to vote with the stockholders of Contributor on any
matter, (b) securities of Contributor convertible into equity interests in
Contributor, or (c) commitments, options, rights or warrants to issue any
such equity interests in Contributor, to issue securities of Contributor
convertible into such equity interests, or to redeem any securities of
Contributor. No shares of capital stock of Contributor have been issued or
disposed of in violation of the preemptive rights, rights of first refusal or
similar rights of any of Contributor's stockholders. Contributor is not
required to qualify to do business as a foreign corporation in any other
state or jurisdiction by reason of its business, properties or activities in
or relating to such other state or jurisdiction. Contributor does not have
any assets, employees or offices in any state other than the state set forth
in the first sentence of this SECTION 2.1.
2.2 POWER AND AUTHORITY FOR TRANSACTIONS. Contributor has the corporate
power to execute, deliver and perform this Agreement and all agreements and
other documents executed and delivered by it pursuant to this Agreement or to
be executed and delivered on the Closing Date, and has taken all action
required by law, its Articles or Certificate of Incorporation, its Bylaws or
otherwise, to authorize the execution, delivery and performance of this
Agreement and such related documents. Each Shareholder has the legal
capacity to enter into and perform this Agreement and the other agreements to
be executed and delivered in connection herewith. Contributor has obtained
the approval of its stockholders necessary to the consummation of the
transactions contemplated herein. This Agreement and all agreements and
documents executed and delivered in connection herewith have been, or will be
as of the Closing Date, duly executed and delivered by Contributor and
Shareholders, as appropriate, and constitute or will constitute the legal,
valid and binding obligations of Contributor and Shareholders, enforceable
against Contributor and Shareholders in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally or the availability of
equitable remedies. The execution and delivery of this Agreement, and the
agreements executed and delivered pursuant to this Agreement or to be
executed and delivered on the Closing Date, do not, and, subject to the
receipt of consents described on EXHIBIT 2.4, the consummation of the actions
contemplated hereby will not, violate any provision of the Articles or
Certificate of Incorporation or Bylaws of Contributor or any provisions of,
or result in the acceleration of, any obligation under any mortgage, lien,
lease, agreement, rent, instrument, order, arbitration award, judgment or
decree to which Contributor or any Shareholder is a party or by which
Contributor or any Shareholder is bound, or violate any material restrictions
of any kind to which Contributor is subject, or result in any lien or
encumbrance on any of Contributor's assets or the Assets.
2.3 PERMITS, LICENSES AND GOVERNMENTAL AUTHORIZATIONS. All building or
other permits, certificates of occupancy, concessions, grants, franchises,
licenses, certificates of need and other governmental authorizations and
approvals required for the conduct of the Business or the use of the Assets,
or waivers thereof, have been duly obtained and are in full force and effect
and are described on EXHIBIT 2.3. There are no proceedings pending or, to
the knowledge of Contributor and Shareholders, threatened, which may result
in the revocation, cancellation or suspension, or any adverse modification,
of any such licenses or permits.
2.4 CONSENTS. Except as set forth on EXHIBIT 2.4, no consent,
authorization, permit, license or filing with any governmental authority, any
lender, lessor, any manufacturer or supplier or any other person or entity is
required to authorize, or is required in connection with, the execution,
delivery and performance of this Agreement and the agreements and documents
contemplated hereby on the part of Contributor or
Shareholders.
2.5 DISTRIBUTIONS AND REPURCHASES. No distribution, payment or dividend
of any kind has been declared or paid by Contributor on any of its capital
stock since the Balance Sheet Date. No repurchase of any of Contributor's
capital stock has been approved, effected or is pending, or is contemplated
by Contributor.
2.6 CORPORATE RECORDS. True and correct copies of the Articles or
Certificate of Incorporation, Bylaws and minutes of Contributor and all
amendments thereto have been delivered to Pentegra. The minute books of
Contributor contain accurate minutes of all meetings of and consents to
actions taken without meetings of the Board of Directors and stockholders of
Contributor since its formation. The books of account of Contributor have
been kept accurately in the ordinary course of business and the revenues,
expenses, assets and liabilities of Contributor have been properly recorded
in such books.
2.7 CONTRIBUTOR'S FINANCIAL INFORMATION. Contributor has heretofore
furnished Pentegra with copies of its unaudited balance sheet and related
unaudited statements of income, retained earnings and cash flows for its
prior two full fiscal years, as well as copies of its unaudited balance sheet
as of December 31, 1996 and June 30, 1997 (collectively, the "Balance Sheet"
and the latest date thereof shall be referred to as the "Balance Sheet Date")
and any related unaudited statements of income, retained earnings, schedule
of accounts receivable, accounts payable and accrued liabilities, and cash
flows for the twelve months then ended (collectively, with the related notes
thereto, the "Financial Statements"). The Financial Statements fairly
present the financial condition and results of operations of Contributor as
of the dates and for the periods indicated and reflect all fixed and
contingent liabilities of Contributor.
2.8 LEASES. EXHIBIT 2.8 attached hereto sets forth a list of all leases
pursuant to which Contributor or any Shareholder leases, as lessor or lessee,
real or personal property used in operating the Business, related to the
Assets or otherwise. All such leases listed on EXHIBIT 2.8 are valid and
enforceable in accordance with their respective terms, and there is not under
any such lease any existing default by Contributor, as lessor or lessee, or
any condition or event of which any Shareholder or Contributor has knowledge
which with notice or lapse of time, or both, would constitute a default, in
respect of which Contributor or Shareholders have not taken adequate steps to
cure such default or to prevent a default from occurring.
2.9 CONDITION OF ASSETS. All of the Assets are in good condition and
repair subject to normal wear and tear and conform with all applicable
ordinances, regulations and other laws, and Contributor and Shareholders have
no knowledge of any latent defects therein.
2.10 TITLE TO AND ENCUMBRANCES ON PROPERTY. Contributor has good, valid
and marketable title to all of the Assets, free and clear of any liens,
claims, charges, exceptions or encumbrances, except for those, if any, which
are set forth in EXHIBIT 2.10 attached hereto. Contributor shall cause all
encumbrances set forth on EXHIBIT 2.10 (other than those encumbrances
indicated on EXHIBIT 1.3(b)) to be released or terminated prior to the
Closing Date and evidence of such releases of liens and claims shall be
provided to Pentegra on the Closing Date and the Assets shall not be used to
satisfy such liens, claims or encumbrances.
2.11 INVENTORIES. All of the Assets constituting inventory are owned
or used by Contributor, are in good, current, standard and merchantable
condition and are not obsolete or defective.
2.12 INTELLECTUAL PROPERTY RIGHTS; NAMES. Except as set forth on EXHIBIT
2.12, Contributor has no right, title or interest in or to patents, patent
rights, corporate names, assumed names, manufacturing processes, trade names,
trademarks, service marks, inventions, specialized treatment protocols,
copyrights, formulas and trade secrets or similar items. Set forth in
EXHIBIT 2.12 is a listing of all names of all
predecessor companies of Contributor, including the names of any
entities from whom Contributor previously acquired significant assets.
Except for off-the-shelf software licenses and except as set forth on EXHIBIT
2.12, Contributor is not a licensee in respect of any patents, trademarks,
service marks, trade names, copyrights or applications therefor, or
manufacturing processes, formulas or trade secrets or similar items and no
such licenses are necessary for the conduct of the Business or the use of the
Assets. No claim is pending or has been made to the effect that the Assets
or the present or past operations of Contributor in connection with the
Assets or Business infringe upon or conflict with the asserted rights of
others to any patents, patent rights, manufacturing processes, trade names,
trademarks, service marks, inventions, licenses, specialized treatment
protocols, copyrights, formulas, know-how and trade secrets. Contributor has
the sole and exclusive right to use all Assets constituting proprietary
rights without infringing or violating the rights of any third parties and no
consents of any third parties are required for the use thereof by Pentegra.
2.13 DIRECTORS AND OFFICERS; PAYROLL INFORMATION; EMPLOYEES. Set forth
on EXHIBIT 2.13 attached hereto is a true and complete list, as of the date
of this Agreement of: (a) the name of each director and officer of
Contributor and the offices held by each, (b) the most recent payroll report
of Contributor, showing all current employees of Contributor and their
current levels of compensation, (c) promised increases in compensation of
employees of Contributor that have not yet been effected, (d) oral or written
employment agreements, consulting agreements or independent contractor
agreements (and all amendments thereto) to which Contributor is a party,
copies of which have been delivered to Pentegra, and (e) all employee
manuals, materials, policies, procedures and work-related rules, copies of
which have been delivered to Pentegra. Contributor is in compliance with all
applicable laws, rules, regulations and ordinances respecting employment and
employment practices. Contributor has not engaged in any unfair labor
practice. There are no unfair labor practices charges or complaints pending
or threatened against Contributor, and Contributor has never been a party to
any agreement with any union, labor organization or collective bargaining
unit.
2.14 LEGAL PROCEEDINGS. Neither any Shareholder, Contributor nor the
Business nor any of the Assets is subject to any pending, nor does
Contributor or any Shareholder have knowledge of any threatened, litigation,
governmental investigation, condemnation or other proceeding against or
relating to or affecting Contributor, any Shareholder, the Business, the
Assets or the transactions contemplated by this Agreement, and, to the
knowledge of Contributor and Shareholders, no basis for any such action
exists, nor is there any legal impediment of which Contributor or any
Shareholder has knowledge to the continued operation of its business or the
use of the Assets in the ordinary course, subject to consents set forth on
EXHIBIT 2.4.
2.15 CONTRACTS. Contributor has delivered to Pentegra true copies of all
written, and disclosed to Pentegra all oral, outstanding contracts,
obligations and commitments of Contributor ("Contracts"), entered into in
connection with and related to the Assets or the Business, all of which are
listed or incorporated by reference on EXHIBIT 2.8 (in the case of leases),
EXHIBIT 2.13 (in the case of employment agreements) and EXHIBIT 2.15 (in the
case of Contracts other than leases) attached hereto. Except as otherwise
indicated on such Exhibits, all of such Contracts are valid, binding and
enforceable in accordance with their terms and are in full force and effect,
and no defenses, offsets or counterclaims have been asserted or may be made
by any party thereto. Except as indicated on such Exhibits, there is not
under any such Contract any existing default by Contributor or any
Shareholder, or any condition or event of which Contributor or any
Shareholder has knowledge which with notice or lapse of time, or both, would
constitute a default. Contributor and Shareholders have no knowledge of any
default by any other party to such Contracts. Contributor and Shareholders
have not received notice of the intention of any party to any Contract to
cancel or terminate any Contract and have no reason to believe that any
amendment or change to any Contract is contemplated by any party thereto.
Other than those contracts, obligations and commitments listed on EXHIBIT
2.8, EXHIBIT 2.13 and EXHIBIT 2.15, Contributor are not a party to any
material written or oral agreement contract, lease or arrangement, including
without limitation, any:
(a) Contract related to the Assets other than this Agreement;
(b) Employment, consulting or compensation agreement or arrangement;
(c) Labor or collective bargaining agreement;
(d) Lease agreement with respect to any property, whether as lessor
or lessee;
(e) Deed, ▇▇▇▇ of sale or other document evidencing an interest in
or agreement to purchase or sell real or personal property;
(f) Contract for the purchase of materials, supplies or equipment
(i) which is in excess of the requirements of the Business now booked or for
normal operating inventories, or (ii) which is not terminable upon notice of
thirty (30) days or less;
(g) Agreement for the purchase from a supplier of all or
substantially all of the requirements of the Business of a particular product
or service;
(h) Loan agreement or other contract for money borrowed or lent or
to be borrowed or lent to another;
(i) Contracts containing non-competition covenants;
(j) Financial or similar contracts or agreements with patients of
the Contributor or Shareholders, oral or written, that provide for
prepayments or deferred installment payments; or
(k) Other contracts or agreements that involve either an
unperformed commitment in excess of $1,000 or that terminate or can only be
terminated by Contributor on more than 30 days after the date hereof.
2.16 SUBSEQUENT EVENTS. Other than as set forth on EXHIBIT 2.16,
Contributor has not, since the Balance Sheet Date:
(a) Incurred any material obligation or liability (absolute,
accrued, contingent or otherwise) or entered into any contract, lease,
license or commitment, except in connection with the performance of this
Agreement;
(b) Discharged or satisfied any material lien or encumbrance, or
paid or satisfied any material obligation or liability (absolute, accrued,
contingent or otherwise) other than (i) liabilities shown or reflected on the
Balance Sheet, (ii) liabilities incurred since the Balance Sheet Date in the
ordinary course of business;
(c) Formed or acquired or disposed of any interest in any
corporation, partnership, joint venture or other entity;
(d) Made any payments to or loaned any money to any person or
entity other than in the ordinary course of business;
(e) Lost or terminated any employee, patient, customer or supplier
that has or may have, individually or in the aggregate, a material adverse
effect on the Business;
(f) Increased or established any reserve for taxes or any other
liability on its books or otherwise provided therefor, except as may have
been required due to income or operations of Contributor since the Balance
Sheet Date;
(g) Mortgaged, pledged or subjected to any lien, charge or other
encumbrance any of the Assets, tangible or intangible;
(h) Sold or contracted to sell or transferred or contracted to
transfer any of the Assets or any other assets used in the conduct of the
Business, canceled any debts or claims or waived any rights, except in the
ordinary course of business;
(i) Except in the ordinary course or business consistent with past
practices, granted any increase in the rates of pay of employees, consultants
or agents, or by means of any bonus or pension plan, contract or other
commitment, increased the compensation of any officer, employee, consultant
or agent;
(j) Authorized or incurred any capital expenditures in excess of
Five Thousand and No/100 Dollars ($5,000.00);
(k) Except for this Agreement and any other agreement executed and
delivered pursuant to this Agreement, entered into any material transaction
other than in the ordinary course of business or permitted hereunder;
(l) Redeemed, purchased, sold or issued any stock, bonds or other
securities;
(m) Experienced damage, destruction or loss (whether or not covered
by insurance) materially and adversely affecting any of its properties,
assets or business or the Business or the Assets, or experienced any other
material adverse change in its financial condition, assets, prospects,
liabilities or business;
(n) Declared or paid a distribution, payment or dividend of any
kind on the capital stock of Contributor;
(o) Repurchased, approved any repurchase or agreed to repurchase
any of Contributor's capital stock; or
(p) Suffered any material adverse change in the Business or to the
Assets.
2.17 TAXES. (a) Contributor has filed all tax returns (including tax
reports and other statements) required to have been filed by it, and has paid
all taxes (including any interest, penalty or additions thereto) required to
have been paid by it. All such tax returns are complete and accurate in all
respects and properly reflect the relevant taxes for the periods covered
thereby. Contributor has not received any notice that any tax deficiency
or delinquency has been or may be asserted against Contributor. There are
no audits relating to taxes of Contributor pending or in process or, to the
knowledge of Contributor, threatened. Contributor is not currently the
beneficiary of any waiver of any statute of limitations in respect of taxes
nor of any extension of time within which to file any tax return or to pay
any tax assessment or deficiency. There are no liens or encumbrances
relating to taxes on or threatened against any of the assets of Contributor.
Contributor has withheld and paid all taxes required by law to have been
withheld and paid by it. Neither Contributor nor any predecessor of
Contributor is or has been a party to any tax allocation or sharing agreement
or a member of an affiliated group of corporations filing a consolidated
Federal income tax return. Contributor has delivered to Pentegra correct and
complete copies of Contributor's three most recently filed annual state,
local and Federal income tax returns, together with all examination reports
and statements of deficiencies assessed against or agreed to by Contributor
during the three calendar year period preceding the date of this Agreement.
Contributor has neither made any payments, is obligated to make any payments,
or is a party to any agreement that under any circumstance could obligate it
to make any payments that will not be deductible under Code section 280G.
(b) Contributor does not intend to dispose of any of the shares of
Pentegra Common Stock to be received hereunder and is not a party to any
plan, arrangement or agreement for the disposition of such shares.
Contributor and Shareholders have no knowledge, after due inquiry, of any
such intent, plan, arrangement or agreement by any Shareholder. Nothing
contained herein shall prohibit Contributor from selling such shares of
Pentegra Common Stock after the designated holding period and in accordance
with SECTION 12.1 hereof.
2.18 COMMISSIONS AND FEES. There are no claims for brokerage commissions
or finder's or similar fees in connection with the transactions contemplated
by this Agreement which may be now or hereafter asserted against Pentegra,
Contributor or Contributor's shareholders resulting from any action taken by
Contributor or any Shareholder or their respective agents or employees, or
any of them.
2.19 LIABILITIES; DEBT. Except to the extent reflected or reserved
against on the Balance Sheet, Contributor did not have, as of the Balance
Sheet Date, and has not incurred since that date and will not have incurred
as of the Closing Date, any liabilities or obligations of any nature, whether
accrued, absolute, contingent or otherwise, and whether due or to become due,
other than those incurred in the ordinary course of business or as set forth
on EXHIBIT 2.16. Contributor and Shareholders do not know, or have
reasonable grounds to know, of any basis for the assertion against
Contributor or any Shareholder as of the Balance Sheet Date, of any claim or
liability of any nature in any amount not fully reflected or reserved against
on the Balance Sheet, or of any claim or liability of any nature arising
since that date other than those incurred in the ordinary course of business
or contemplated by this Agreement. All indebtedness of Contributor
(including without limitation, indebtedness for borrowed money, guaranties
and capital lease obligations) is described on EXHIBIT 2.19 attached hereto.
2.20 INSURANCE POLICIES. Contributor, each Shareholder and each licensed
professional of Contributor carries property, liability, malpractice,
workers' compensation and such other types of insurance as is customary in
the industry. Valid and enforceable policies in such amounts are outstanding
and duly in force and will remain duly in force through the Closing Date.
All such policies are described in EXHIBIT 2.20 attached hereto and true and
correct copies have been delivered to Pentegra. Neither Shareholders nor
Contributor have not received notice or other communication from the issuer
of any such insurance policy cancelling or amending such policy or
threatening to do so. Neither Contributor, nor any Shareholder nor any
licensed professional employee of Contributor has any outstanding claims,
settlements or premiums owed against any insurance policy.
2.21 EMPLOYEE BENEFIT PLANS. Except as set forth on EXHIBIT 2.21
attached hereto, Contributor has neither established, nor maintains, nor is
obligated to make contributions to or under or otherwise participate in, (a)
any bonus or other type of compensation or employment plan, program,
agreement, policy, commitment, contract or arrangement (whether or not set
forth in a written document); (b) any pension, profit-sharing, retirement or
other plan, program or arrangement; or (c) any other employee benefit plan,
fund or program, including, but not limited to, those described in SECTION
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). All such plans listed on EXHIBIT 2.20 (individually "Contributor
Plan," and collectively "Contributor Plans") have been operated and
administered in all material respects in accordance with all applicable laws,
rules and regulations, including without limitation, ERISA, the Internal
Revenue Code of 1986, as amended, Title VII of the Civil Rights Act of 1964,
as amended, the Equal Pay Act of 1967, as amended, the Age Discrimination in
Employment Act of 1967, as amended, and the related rules and regulations
adopted by those Federal agencies responsible for the administration of such
laws. No act or failure to act by Contributor has resulted in a "prohibited
transaction" (as defined in ERISA) with respect to the Contributor Plans. No
"reportable event" (as defined in ERISA) has occurred with respect to any of
the Contributor Plans. Contributor has not previously made, is not currently
making, and is not obligated in any way to make, any contributions to any
multiemployer plan within the meaning of the Multi-Employer Pension Plan
Amendments Act of 1980. With respect to each Contributor Plan, either (i)
the value of plan assets
(including commitments under insurance contracts) is at least equal to the
value of plan liabilities or (ii) the value of plan liabilities in excess of
plan assets is disclosed on the Balance Sheet, all as of the Closing Date.
2.22 ADVERSE AGREEMENTS. Contributor is not, and will not be as of the
Closing Date, a party to any agreement or instrument or subject to any
charter or other corporate restriction or any judgment, order, writ,
injunction, decree, rule or regulation that materially and adversely affects
the condition (financial or otherwise), operations, assets, liabilities,
business or prospects of Contributor, the Business or the Assets.
2.23 COMPLIANCE WITH LAWS IN GENERAL. Contributor, Shareholders and
Contributor's licensed professional employees, and the conduct of the
Business and use of the Assets, have complied with all applicable laws,
rules, regulations and licensing requirements, including, without limitation,
the Federal Environmental Protection Act, the Occupational Safety and Health
Act, the Americans with Disabilities Act and any environmental laws and
medical waste laws, and there exist no violations by Contributor, any
Shareholder or any licensed professional employee of Contributor of any
Federal, state or local law or regulation. Contributor and Shareholders have
not received any notice of a violation of any Federal, state and local laws,
regulations and ordinances relating to the operations of the Business and
Assets and no notice of any pending inspection or violation of any such law,
regulation or ordinance has been received by Contributor.
2.24 THIRD PARTY PAYORS. Contributor, Shareholders and each licensed
professional employee or independent contractor of Contributor has timely
filed all claims or other reports required to be filed with respect to the
purchase of services by third-party payors, and all such claims or reports
are complete and accurate, and has no liability to any payor with respect
thereto. There are no pending appeals, overpayment determinations,
adjustments, challenges, audit, litigation or notices of intent to open
Medicare or Medicaid claim determinations or other reports required to be
filed by Contributor, any Shareholder and each licensed professional employee
of Contributor. Neither Contributor, nor any Shareholder, nor any licensed
professional employee of Contributor has been convicted of, or pled guilty or
nolo contendere to, patient abuse or negligence, or any other Medicare or
Medicaid program related offense and none has committed any offense which may
serve as the basis for suspension or exclusion from the Medicare and Medicaid
programs or any other third party payor program. With respect to payors,
Contributor, Shareholders and Contributor's licensed professional employees
has not (a) knowingly and willfully making or causing to be made a false
statement or representation of a material fact in any application for any
benefit or payment; (b) knowingly and willfully making or causing to be made
any false statement or representation of a material fact for use in
determining rights to any benefit or payment; (c) failed to disclose
knowledge of the occurrence of any event affecting the initial or continued
right to any benefit or payment on its own behalf or on behalf of another,
with the intent to fraudulently secure such benefit or payment; and (d)
violated any applicable state anti-remuneration or self-referral statutes,
rules or regulations.
2.25 NO UNTRUE REPRESENTATIONS. No representation or warranty by
Contributor or Shareholders in this Agreement, and no Exhibit or certificate
issued or executed by, or information furnished by, officers or directors of
Contributor or any Shareholder and furnished or to be furnished to Pentegra
pursuant hereto, or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements or facts
contained therein not misleading.
2.26 BANKING RELATIONS. Set forth in EXHIBIT 2.26 is a complete and
accurate list of all arrangements that Contributor has with any bank or other
financial institution, indicating with respect to each relationship the type
of arrangement maintained (such as checking account, borrowing arrangements,
safe deposit box, etc.) and the person or persons authorized in respect
thereof.
2.27 OWNERSHIP INTERESTS OF INTERESTED PERSONS; COMPETITORS. No officer,
employee, director
or stockholder of Contributor, or their respective spouses, children or
affiliates, owns directly or indirectly, on an individual or joint basis, any
interest in, has a compensation or other financial arrangement with, or
serves as an officer or director of, any customer or supplier or competitor
of Contributor or any organization that has a material contract or
arrangement with Contributor.
2.28 PAYORS. EXHIBIT 2.28 sets forth a true, complete and correct list
of the names and addresses of each payor of Contributor's services which
accounted for more than 10% of revenues of Contributor in the preceding
fiscal year. Contributor has good relations with all such payors and other
material payors of Contributor and none of such payors has notified
Contributor that it intends to discontinue its relationship with Contributor
or to deny any claims submitted to such payor for payment.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PENTEGRA.
Pentegra hereby represents and warrants to Contributor and Shareholders
as follows:
3.1 CORPORATE EXISTENCE: GOOD STANDING: Pentegra is a corporation duly
organized and existing and in good standing under the laws of the State of
Delaware.
3.2 POWER AND AUTHORITY; CONSENTS. Pentegra has corporate power to
execute, deliver and perform this Agreement and all agreements and other
documents executed and delivered by it pursuant to this Agreement or to be
executed and delivered on the Closing Date, and has taken all actions
required by law, its Certificate of Incorporation, its Bylaws or otherwise,
to authorize the execution, delivery and performance of this Agreement and
such related documents. This Agreement and all agreements and documents
executed and delivered in connection herewith have been, or will be as of the
Closing Date, duly executed and delivered by Pentegra and constitute or will
constitute the legal, valid and binding obligations of Pentegra, enforceable
against Pentegra in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies. The
execution and delivery of this Agreement, and the agreements executed and
delivered pursuant to this Agreement or to be executed and delivered on the
Closing Date, do not, and, the consummation of the actions contemplated
hereby will not, violate any provision of the Certificate of Incorporation or
Bylaws of Pentegra or any provisions of, or result in the acceleration of,
any obligation under any mortgage, lien, lease, agreement, rent, instrument,
order, arbitration award, judgment or decree to which Pentegra is a party or
by which Pentegra is bound, or violate any material restrictions of any kind
to which Pentegra is subject, or result in any lien or encumbrance on any of
Pentegra's assets. Other than as have been obtained or as would not have a
material adverse effect, there are no consents of any person or entity
required for the transaction contemplated hereby on behalf of Pentegra.
3.3 PERMITS, LICENSES AND GOVERNMENTAL AUTHORIZATIONS. All building or
other permits, certificates of occupancy, concessions, grants, franchises,
licenses, certificates of need and other governmental authorizations and
approvals required for the conduct of the business of Penegra or waivers
thereof, have been duly obtained and are in full force and effect, except as
would not have a material adverse effect upon Pentegra. Other than as would
not have a material adverse effect, there are no proceedings pending or, to
the knowledge of Pentegra, threatened, which may result in the revocation,
cancellation or suspension, or any adverse modification, of any such licenses
or permits.
3.4 LEGAL PROCEEDINGS. Other than as would not have a material adverse
effect, neither Pentegra nor its business or assets is subject to any
pending, nor does Pentegra have knowledge of any threatened, litigation,
governmental investigation, condemnation or other proceeding against or
relating to or affecting Pentegra, its business, assets or the transactions
contemplated by this Agreement, and, to the knowledge of Pentegra, no basis
for any such action exists, nor is there any legal impediment of which
Pentegra has
knowledge to the continued operation of its business or the use of its Assets
in the ordinary course.
3.5 TAXES. Pentegra has filed all tax returns (including tax reports
and other statements) required to have been filed by it, and has paid all
taxes (including any interest, penalty or additions thereto) required to have
been paid by it, other than as would not have a material adverse effect.
Pentegra has not received any notice that any tax deficiency or delinquency
has been or may be asserted against Pentegra. There are no audits relating
to taxes of Pentegra pending or in process or, to the knowledge of Pentegra,
threatened. Pentegra is not currently the beneficiary of any waiver of any
statute of limitations in respect of taxes nor of any extension of time
within which to file any tax return or to pay any tax assessment or
deficiency.
3.6 COMMISSIONS AND FEES. Pentegra has not incurred any obligation for
any finder's, broker's or similar fees in connection with the transactions
contemplated hereby.
3.7 CAPITAL STOCK. The issuance and delivery by Pentegra of shares of
Pentegra Common Stock in connection with the acquisition contemplated hereby
will be as of the Closing Date duly and validly authorized by all necessary
corporate action on the part of Pentegra. The Pentegra Common Stock to be
issued in connection with the acquisition contemplated hereby, when issued in
accordance with the terms of this Agreement, will be validly issued, fully
paid and nonassessable.
3.8 NO UNTRUE REPRESENTATIONS. No representation or warranty by
Pentegra in this Agreement, and no Exhibit or certificate issued by officers
or directors of Pentegra and furnished or to be furnished to Contributor or
any Shareholder pursuant hereto, or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact necessary to
make the statements or facts contained therein not misleading.
SECTION 4. COVENANTS OF CONTRIBUTOR AND SHAREHOLDERS.
Contributor and Shareholders, jointly and severally, agree that between
the date hereof and the Closing Date:
4.1 CONSUMMATION OF AGREEMENT; EXHIBITS. Contributor and Shareholders
shall use their best efforts to cause the consummation of the transactions
contemplated hereby in accordance with their terms and conditions.
Contributor and Shareholders agree to complete the Exhibits hereto to be
provided by them in form and substance satisfactory to Pentegra.
4.2 BUSINESS OPERATIONS. Contributor and Shareholders shall operate the
Business and use the Assets in the ordinary course. Contributor and
Shareholders shall not enter into any lease, contract, indebtedness,
commitment, purchase or sale or acquire or dispose of any capital asset
relating to the Business or the Assets except in the ordinary course of
business. Contributor and Shareholders shall use their best efforts to
preserve the Business and Assets intact and shall not take any action that
would have an adverse effect on the Business or Assets. Contributor and
Shareholders shall use their best efforts to preserve intact the
relationships with payors, customers, suppliers, patients and others having
significant business relations with Contributor. Contributor and Shareholders
shall collect its receivables and pay its trade payables in the ordinary
course of business. Contributor and Shareholdes shall not introduce any new
method of management, operations or accounting.
4.3 ACCESS AND NOTICE. Contributor and Shareholders shall permit
Pentegra and its authorized representatives access to, and make available for
inspection, all of the assets and business of Contributor, the Business and
the Assets, including employees, customers and suppliers and permit Pentegra
and its authorized
representatives to inspect and make copies of all documents, records and
information with respect to the business or assets of Contributor, the
Business or the Assets as Pentegra or its representatives may request.
Contributor and Shareholders shall promptly notify Pentegra in writing of (a)
any notice or communication relating to a default or event that, with notice
or lapse of time or both, could become a default, under any contract,
commitment or obligation to which Contributor is a party or relating to the
Business or the Assets, and (b) any adverse change in Contributor's or the
Business' financial condition or the Assets.
4.4 APPROVALS OF THIRD PARTIES AND PERMITS AND CONSENTS. Contributor
and Shareholders shall use their best efforts to secure all necessary
approvals and consents of third parties to the consummation of the
transactions contemplated hereby, including consents described on EXHIBIT
2.4. Contributor and Shareholders shall use their best efforts to obtain all
licenses, permits, approvals or other authorizations required under any law,
rule, regulation, or otherwise to provide the services of Contributor
contemplated by the Service Agreement and to conduct the intended business of
Contributor and operate the Business and use the Assets.
4.5 ACQUISITION PROPOSALS. From the execution of this Agreement until
the earlier of Closing or the termination of this Agreement in accordance
with the provisions hereof, Contributor and Shareholders shall not, and shall
use its best efforts to cause Contributor's employees, agents and
representatives not to, initiate, solicit or encourage, directly or
indirectly, any inquiries or the making or implementation of any proposal or
offer, including without limitation, any proposal or offer to any
Shareholder, with respect to a merger, acquisition, consolidation or similar
transaction involving, or the purchase of all or any significant portion of
the assets or any equity securities of Contributor or engage in any
negotiations concerning, or provide any confidential information or data to,
or have any discussions with, any person relating to such proposal or offer,
and Contributor and Shareholders will immediately cease any such activities,
discussions or negotiations heretofore conducted with respect to any of the
foregoing. Contributor and Shareholders shall immediately notify Pentegra if
any such inquiries or proposals are received.
4.6 FUNDING OF ACCRUED EMPLOYEE BENEFITS. Contributor hereby covenants
and agrees that it will take whatever steps are necessary to pay or fund
completely for any accrued benefits, where applicable, or vested accrued
benefits for which Contributor or any entity might have any liability
whatsoever arising from any insurance, pension plan, employment tax or
similar liability of Contributor to any employee or other person or entity
(including, without limitation, any Contributor Plan and any liability under
employment contracts with Contributor) allocable to services performed prior
to the Closing Date. Contributor and Shareholders acknowledge that the
purpose and intent of this covenant is to assure that Pentegra shall have no
unfunded liability whatsoever at any time after the Closing Date with respect
to any of Contributor's employees or similar persons or entities, including,
without limitation, any Contributor Plan for the period prior to the Closing
Date.
4.7 EMPLOYEE MATTERS. Contributor shall not, without the prior written
approval of Pentegra, except as required by law, increase the cash
compensation of any Shareholder (other than in the ordinary course of
business) or other employee or an independent contractor of Contributor,
adopt, amend or terminate any compensation plan, employment agreement,
independent contractor agreement, employee policies and procedures or
employee benefit plan, take any action that could deplete the assets of any
employee benefit, or fail to pay any premium or contribution due or file any
report with respect to any employee benefit plan, or take any other actions
with respect to its employees or employee matters which might have an adverse
effect upon Contributor, its business, assets or prospects.
4.8 DISTRIBUTIONS AND REPURCHASES. No distribution, payment or dividend
of any kind will be declared or paid by Contributor, nor will any repurchase
of any of Contributor's capital stock be approved or effected.
4.9 REQUIREMENTS TO EFFECT ACQUISITION. Contributor and Shareholders
shall use their best efforts to take, or cause to be taken, all actions
necessary to effect the acquisition contemplated hereby under applicable law.
4.10 ACCOUNTING AND TAX MATTERS. Contributor and Shareholders will not
change in any material respect the tax or financial accounting methods or
practices followed by Contributor (including any material change in any
assumption underlying, or any method of calculating, any bad debt, contingency
or other reserve), except as may be required by law or generally accepted
accounting principles. Contributor and Shareholders will duly, accurately and
timely (without regard to any extensions of time) file all returns, information
statements and other documents relating to taxes of Contributor required to be
filed by it, and pay all taxes required to be paid by it, on or before the
Closing Date.
4.11 WAIVER OF BULK TRANSFER COMPLIANCE. Pentegra, Shareholders and
Contributor hereby waive any compliance with the applicable state Bulk Transfers
Act, if any. Contributor and Shareholders covenant and agree that all of the
creditors with respect to the Business and the Assets will be paid in full by
Contributor prior to the Closing Date, except to extent that any liability to
such creditors is assumed by Pentegra pursuant to this Agreement. If required
by Pentegra, Contributor and Shareholders shall furnish Pentegra with proof of
payment of all creditors with respect to the Business and the Assets.
Notwithstanding the foregoing, Contributor and Shareholders may dispute the
validity or amount of any such creditor's claim without being deemed to be in
violation of this SECTION 4.11, provided that such dispute is in good faith and
does not unreasonably delay the resolution of the claim and provided, further
that Contributor and Shareholders agree to indemnify and bond Pentegra for such
amounts as is satisfactory to Pentegra.
4.12 LEASE. If Contributor leases any of its premises from any Shareholder
or other affiliate of Contributor or any shareholder of Contributor, Pentegra
shall have entered into a building lease (the "Building Lease") with the owner
of such premises on terms and conditions satisfactory to Pentegra, the terms and
conditions of which shall include, without limitation, (i) a five year initial
term plus three five-year renewal options, (ii) a lease rate equal to the fair
market value lease rate, as agreed to by Pentegra, and (iii) such other
provisions to be acceptable to Pentegra.
4.13 HIRING OF EMPLOYEES. Contributor and Shareholders shall cooperate
with all requests made by Pentegra for the purpose of allowing Pentegra to hire
those non-dental employees of Contributor designated by Pentegra, such
employment to be effective as of the Closing Date. Notwithstanding the above,
Contributor and Shareholders shall remain liable under any Contributor Plans for
any claims incurred by any employees or their spouses or dependents, and for all
compensation, bonuses, benefits and other such items and other liabilities
related to Contributor's employees incurred by Contributor prior to the Closing
Date.
4.14 EMPLOYEE BENEFIT PLANS. Contributor agrees and acknowledges that all
employees of Contributor hired by Pentegra pursuant to SECTION 4.13 above,
shall be treated as "leased employees" (as defined in Code Section 414(n)) of
Contributor and shall be treated as Clinic employees for purposes of eligibility
and participation in Contributor Plans.
4.15 INSURANCE. Contributor shall cause Pentegra and its affiliates to be
named as an additional insured on its liability insurance programs, effective as
of the Closing Date.
SECTION 5. COVENANTS OF PENTEGRA.
Pentegra agrees that between the date hereof and the Closing:
5.1 CONSUMMATION OF AGREEMENT; EXHIBITS. Pentegra shall use its best
efforts to cause the consummation of the transactions contemplated hereby in
accordance with their terms and provisions.
Pentegra agrees to complete the Exhibits hereto to be provided by it.
5.2 APPROVALS OF THIRD PARTIES AND PERMITS AND CONSENTS. Pentegra shall
use its best efforts to secure all necessary approvals and consents of third
parties to the consummation of the transactions contemplated hereby.
SECTION 6. COVENANTS OF PENTEGRA AND CONTRIBUTOR AND SHAREHOLDERS.
Pentegra, Shareholders and Contributor agree as follows:
6.1 FILINGS; OTHER ACTIONS. Pentegra, Contributor and Shareholders shall
cooperate to promptly prepare and file with the Securities Exchange Commission
("SEC") the Registration Statement on Form S-1 (or other appropriate Form) to
be filed by Pentegra in connection with its Initial Public Offering (including
the prospectus constituting a part thereof, the "Registration Statement").
Pentegra shall obtain all necessary state securities laws or "Blue Sky" permits
and approvals required to carry out the transactions contemplated by this
Agreement and the Contributor and Shareholders shall furnish all information
concerning Contributor and Shareholders as may be reasonable requested in
connection with any such action.
Contributor and Shareholder represent and warrant that none of the
information or documents supplied or to be supplied by it specifically for
inclusion in the Registration Statement, by exhibit or otherwise, will, at the
time the Registration Statement and each amendment or supplement thereto, if
any, becomes effective under the Securities Act of 1933, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Contributor and
Shareholders shall be entitled to review the Registration Statement and each
amendment thereto, if any, prior to the time each becomes effective under the
Securities Act of 1933.
Contributor and Shareholders shall furnish Pentegra will all information
concerning themselves, their subsidiaries, if any, directors, officers and
stockholders and such other matters as may be reasonable requested by Pentegra
in connection with the preparation of the Registration Statement and each
amendment or supplement thereto, or any other statement, filing, notice or
application made by or on behalf of each such party or any of its subsidiaries
to any governmental entity in connection with the transactions contemplated by
the Other Agreements or this Agreement.
SECTION 7. PENTEGRA CONDITIONS PRECEDENT.
The obligations of Pentegra hereunder are subject to the fulfillment at or
prior to the Closing of each of the following conditions:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Contributor and Shareholders contained herein shall have been true and correct
in all respects when initially made and shall be true and correct in all
respects as of the Closing Date.
7.2 COVENANTS AND CONDITIONS. Contributor and Shareholders shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed and complied with by Contributor and Shareholders
prior to the Closing Date.
7.3 PROCEEDINGS. No action, proceeding or order by any court or
governmental body shall have been threatened orally or in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
7.4 NO MATERIAL ADVERSE CHANGE. No material adverse change in the
condition (financial or otherwise), operations, assets, liabilities, business or
prospects of Contributor shall have occurred since the Balance Sheet Date.
7.5 DUE DILIGENCE REVIEW. By the Closing Date, Pentegra shall have
completed a due diligence review of the business, operations and financial
statements of Contributor, the Business and the Assets, the results of which
shall be satisfactory to Pentegra in its sole discretion.
7.6 APPROVAL BY THE BOARD OF DIRECTORS. This Agreement and the
transactions contemplated hereby shall have been approved by the Board of
Directors of Pentegra or a committee thereof.
7.7 SERVICE AGREEMENT; GUARANTY AGREEMENT. Contributor and Pentegra shall
have executed and delivered a Service Agreement (the "Service Agreement"), in
substantially the form attached hereto as EXHIBIT 7.7, pursuant to which
Pentegra will provide management services to the Contributor. Each Shareholder
shall have executed and delivered a Guaranty Agreement in substantially the form
attached as EXHIBIT 4.10 of the Service Agreement pursuant to which Shareholder
shall, among other things, guaranty the obligations of Contributor under the
Service Agreement.
7.8 EMPLOYMENT ARRANGEMENTS. Contributor shall have terminated, and
caused each shareholder of Contributor that has an existing employment agreement
with Contributor to have terminated his or her employment agreement with
Contributor and shall have executed an employment agreement ("Employment
Agreement") with Contributor in form and substance attached hereto as EXHIBIT
7.8 and otherwise satisfactory to Contributor and Pentegra.
7.9 CONSENTS AND APPROVALS. Contributor and Shareholders shall have
obtained all necessary government and other third-party approvals and consents.
7.10 CLOSING DELIVERIES. Pentegra shall have received all documents, duly
executed in form satisfactory to Pentegra and its counsel, referred to in
SECTION 9.1.
7.11 DEBT AND RECEIVABLES. There shall be no indebtedness, receivables or
payables between Contributor and its shareholders or affiliates and Contributor
shall not have any liabilities, including indebtedness, guaranties and capital
leases, that are not set forth on EXHIBIT 2.19.
7.12 INSURANCE. Contributor and Shareholders shall have named Pentegra as
an additional insured on their liability insurance program in accordance with
SECTION 4.15.
7.13 NO CHANGE IN WORKING CAPITAL. There shall have been no material
change in the working capital of Contributor since the Balance Sheet Date.
7.14 SECURITIES APPROVAL. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the SEC.
At or prior to the date that the Registration Statement is declared effective by
the SEC, Pentegra shall have received all state securities and "Blue Sky"
permits necessary to consummate the transactions contemplated hereby. The
Pentegra Common Stock shall have been approved for listing on Nasdaq or other
exchange selected by Pentegra, subject only to official notification of
issuance.
SECTION 8. CONTRIBUTOR'S AND SHAREHOLDERS' CONDITIONS PRECEDENT.
The obligations of Contributor and Shareholders hereunder are subject to
fulfillment at or prior to the Closing of each of the following conditions:
8.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Pentegra contained herein shall have been true and correct in all respects when
initially made and shall be true and correct in all respects as of the Closing
Date.
8.2 COVENANTS AND CONDITIONS. Pentegra shall have performed and complied
with all covenants and conditions required by this Agreement to be performed and
complied with by Pentegra prior to the Closing Date.
8.3 PROCEEDINGS. No action, proceeding or order by any court or
governmental body shall have been threatened orally or in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
8.4 CLOSING DELIVERIES. Contributor shall have received all documents,
duly executed in form satisfactory to Contributor and its counsel, referred to
in SECTION 9.2.
8.5 SECURITIES APPROVAL. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the SEC.
At or prior to the date that the Registration Statement is declared effective by
the SEC, Pentegra shall have received all state securities and "Blue Sky"
permits necessary to consummate the transactions contemplated hereby. The
Pentegra Common Stock shall have been approved for listing on Nasdaq or other
exchange selected by Pentegra, subject only to official notification of
issuance.
SECTION 9. CLOSING DELIVERIES.
9.1 DELIVERIES OF CONTRIBUTOR AND SHAREHOLDERS. Within five business days
after requested by Pentegra, Contributor and Shareholders shall deliver to
Pentegra the following, all of which shall be in a form satisfactory to counsel
to Pentegra and shall be held by ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. (counsel for Pentegra)
in escrow pending Closing, pursuant to an escrow agreement or letter agreement
in form and substance mutually acceptable to the parties hereto:
(a) an executed original Service Agreement and executed originals of
all documents required by that agreement, including but not limited to the
Guaranty Agreement and security agreement referred to therein;
(b) executed Employment Agreements;
(c) a copy of the resolutions of the Board of Directors of
Contributor authorizing the execution, delivery and performance of this
Agreement, the Service Agreement, the Employment Agreements and all related
documents and agreements each certified by the Secretary as being true and
correct copies of the original thereof;
(d) a ▇▇▇▇ of sale conveying the Assets to Pentegra;
(e) an assignment of each contract, agreement and lease being
assigned to and assumed by Pentegra;
(f) certificates of the Shareholders and a duly authorized officer of
Contributor dated as of the Closing Date, (i) as to the truth and correctness of
the representations and warranties of Contributor and Shareholder contained
herein; (ii) as to the performance of and compliance by Contributor and
Shareholder with all covenants contained herein; and (iii) certifying that all
conditions precedent of Contributor and Shareholders to the Closing have been
satisfied;
(g) a certificate of the Secretary of Contributor certifying as to
the incumbency of the directors and officers of Contributor and as to the
signatures of such directors and officers who have executed documents delivered
at the Closing on behalf of Contributor;
(h) a certificate, dated within 30 days of the Closing Date, of the
Secretary of the State of incorporation of Contributor and any state of required
foreign qualification of Contributor establishing that Contributor is in
existence and is in good standing to transact business in its state of
incorporation;
(i) an opinion of counsel to Contributor and Shareholder opining as
to the execution and delivery of this Agreement and the other documents and
agreements to be executed pursuant hereto, the good standing and authority of
Contributor, the enforceability of this Agreement and the other agreements and
documents to be executed in connection herewith, and other matters reasonably
requested by Pentegra;
(j) non-foreign affidavits executed by Contributor;
(k) all authorizations, consents, approvals, permits and licenses
referred to in SECTIONS 2.3 and 2.4;
(l) an executed Registration Rights Agreement between Pentegra and
Contributor, in substantially the form attached hereto as EXHIBIT 9.1(l) (the
"Registration Rights Agreement"); and
(m) such other instruments and documents as reasonably requested by
Pentegra to carry out and effect the purpose and intent of this Agreement.
9.2 DELIVERIES OF PENTEGRA. On or before the Closing Date, Pentegra shall
deliver to Contributor and Shareholder, the following, all of which shall be in
a form satisfactory to counsel to Contributor and Shareholders and shall be held
by ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. (counsel for Pentegra) in escrow pending Closing,
pursuant to an escrow agreement or letter agreement in form and substance
mutually acceptable to the parties hereto:
(a) the Acquisition Consideration;
(b) an executed Service Agreement;
(c) an assumption of each contract, agreement and lease being
assigned to and assumed by Pentegra;
(d) a copy of the resolutions of the Board of Directors of Pentegra
(or a committee thereof) authorizing the execution, delivery and performance of
this Agreement and all related documents and agreements each certified by the
Secretary as being true and correct copies of the original thereof;
(e) certificates of the President of Pentegra, dated as of the
Closing Date, (i) as to the truth and correctness of the representations and
warranties of Pentegra contained herein; (ii) as to the performance of and
compliance by Pentegra with all covenants contained herein; and (iii) certifying
that all conditions
precedent of Pentegra to the Closing have been satisfied;
(f) a certificate of the Secretary of Pentegra certifying as to the
incumbency of the directors and officers of Pentegra and as to the signatures of
such directors and officers who have executed documents delivered at the Closing
on behalf of Pentegra;
(g) certificates, dated within 30 days of the Closing Date, of the
Secretary of the State of Delaware establishing that Pentegra is in existence
and are in good standing to transact business in the State of Delaware and the
State of incorporation of Contributor;
(h) an opinion of counsel to Pentegra opining as to the execution and
delivery of this Agreement and the other documents and agreements to be executed
pursuant hereto, the good standing and authority of Pentegra, the enforceability
of this Agreement and the other agreements and documents to be executed in
connection herewith, and other matters reasonably requested by Contributor;
(i) the executed Registration Rights Agreement; and
(j) such other instruments and documents as reasonably requested by
Contributor to carry out and effect the purpose and intent of this Agreement.
SECTION 10. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION.
10.1 NATURE AND SURVIVAL. All statements contained in this Agreement or in
any Exhibit attached hereto, any agreement executed pursuant hereto, and any
certificate executed and delivered by any party pursuant to the terms of this
Agreement, shall constitute representations and warranties of Contributor and
Shareholders, jointly and severally, or of Pentegra, as the case may be. All
such representations and warranties, and all representations and warranties
expressly labeled as such in this Agreement shall survive the date of this
Agreement and the Closing Date for a period of five (5) years following the
Closing Date, except that (i) the representations and warranties with respect to
environmental and medical waste laws and health care laws and matters shall
survive for a period of fifteen (15) years and tax representations shall survive
until one year after the expiration of the applicable statute of limitations.
Each party covenants with the other parties not to make any claim with respect
to such representations and warranties, against any party after the date on
which such survival period shall terminate. No party shall be entitled to claim
indemnity from any other party pursuant to SECTION 10.2 or 10.3 hereof, unless
such party has timely given the notice required in SECTION 10.2, 10.3 or 10.4
hereof, as the case may be. Each party hereby releases, acquits and discharges
the other party from any and all claims and demands, actions and causes of
action, damages, costs, expenses and rights of setoff with respect to which the
notices required by SECTION 10.2, 10.3 or 10.4, as applicable, are not timely
provided.
10.2 INDEMNIFICATION BY PENTEGRA. PENTEGRA (FOR PURPOSES OF THIS SECTION
10.2 AND, TO THE EXTENT APPLICABLE, SECTION 10.4, "INDEMNITOR"), SHALL INDEMNIFY
AND HOLD CONTRIBUTOR AND ITS SHAREHOLDERS, AGENTS AND EMPLOYEES (EACH OF THE
FOREGOING, INCLUDING CONTRIBUTOR AND SHAREHOLDERS, FOR PURPOSES OF THIS SECTION
10.2 AND, TO THE EXTENT APPLICABLE, SECTION 10.4, AN "INDEMNIFIED PERSON"),
HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES, ACTIONS,
SUITS, COSTS, DEFICIENCIES AND EXPENSES (INCLUDING, BUT NOT LIMITED TO,
REASONABLE FEES AND DISBURSEMENTS OF COUNSEL THROUGH APPEAL) ARISING FROM OR BY
REASON OF OR RESULTING FROM:
(A) ANY BREACH BY INDEMNITOR OF ANY REPRESENTATION, WARRANTY,
AGREEMENT OR COVENANT CONTAINED IN THIS AGREEMENT (INCLUDING THE EXHIBITS
HERETO) AND EACH DOCUMENT, CERTIFICATE OR OTHER INSTRUMENT FURNISHED OR TO BE
FURNISHED BY INDEMNITOR HEREUNDER, AND
(B) AFTER THE CLOSING DATE, INDEMNITOR'S OWNERSHIP OF THE ASSETS, AND
(C) ANY LIABILITY UNDER THE SECURITIES ACT, THE EXCHANGE ACT OR ANY OTHER
FEDERAL OR STATE "BLUE SKY" OR SECURITIES LAWS OR REGULATION, AT COMMON LAW OR
OTHERWISE, ARISING OUT OF OR BASED UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF A MATERIAL FACT RELATING TO PENTEGRA CONTAINED IN ANY PRELIMINARY
PROSPECTUS, THE REGISTRATION STATEMENT OR ANY PROSPECTUS FORMING A PART THEREOF,
OR ANY AMENDMENT THEREOF OR SUPPLEMENT THERETO, ARISING OUT OF OR BASED UPON ANY
OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT RELATING TO
PENTEGRA REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING.
IN CONNECTION WITH INDEMNITOR'S OBLIGATION TO INDEMNIFY FOR EXPENSES, INDEMNITOR
SHALL REIMBURSE EACH INDEMNIFIED PERSON FOR ALL SUCH EXPENSES AS THEY ARE
INCURRED BY SUCH INDEMNIFIED PERSON, PROVIDED THAT SUCH INDEMNIFIED PERSON
AGREES IN WRITING TO REFUND ALL SUCH REIMBURSED EXPENSES IF AND TO THE EXTENT
THAT IT IS FINALLY JUDICIALLY DETERMINED THAT SUCH INDEMNIFIED PERSON IS NOT
ENTITLED TO INDEMNIFICATION HEREUNDER.
10.3 INDEMNIFICATION BY CONTRIBUTOR AND SHAREHOLDERS. CONTRIBUTOR AND
SHAREHOLDERS (FOR PURPOSES OF THIS SECTION 10.3 AND, TO THE EXTENT APPLICABLE,
SECTION 10.4, "INDEMNITOR"), JOINTLY AND SEVERALLY, SHALL INDEMNIFY AND HOLD
PENTEGRA AND ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS AND
EMPLOYEES (EACH OF THE FOREGOING, INCLUDING PENTEGRA, FOR PURPOSES OF THIS
SECTION 10.3 AND, TO THE EXTENT APPLICABLE, SECTION 10.4, AN "INDEMNIFIED
PERSON") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, CLAIMS,
DAMAGES, ACTIONS, SUITS, COSTS, DEFICIENCIES AND EXPENSES (INCLUDING, BUT NOT
LIMITED TO, REASONABLE FEES AND DISBURSEMENTS OF COUNSEL THROUGH APPEAL) ARISING
FROM OR BY REASON OF OR RESULTING FROM OR WITH RESPECT TO:
(A) ANY BREACH BY INDEMNITOR OF ANY REPRESENTATION, WARRANTY, AGREEMENT
OR COVENANT CONTAINED IN THIS AGREEMENT (INCLUDING THE EXHIBITS HERETO) AND EACH
DOCUMENT, CERTIFICATE, OR OTHER INSTRUMENT FURNISHED OR TO BE FURNISHED BY
INDEMNITOR HEREUNDER, AND
(B) PRIOR TO AND AFTER THE CLOSING DATE, THE INDEMNITOR'S MANAGEMENT AND
CONDUCT OF THE BUSINESS AND OWNERSHIP OR OPERATION OF THE ASSETS,
(C) ANY ALLEGED ACT OR NEGLIGENCE OF INDEMNITOR OR ITS EMPLOYEES, AGENTS
AND INDEPENDENT CONTRACTORS IN OR ABOUT CONTRIBUTOR'S BUSINESS WHETHER ON OR
AFTER THE CLOSING DATE,
(D) ANY VIOLATION BY CONTRIBUTOR OR ITS SHAREHOLDERS OR THEIR CONSULTANTS,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES OF STATE OR FEDERAL LAWS
GOVERNING HEALTHCARE FRAUD AND ABUSE, OR ANY
OVERPAYMENT OR OBLIGATION ARISING OUT OF OR RESULTING FROM ACTIONS OF THE
CONTRIBUTOR OR SHAREHOLDERS RELATING TO CLAIMS SUBMITTED TO ANY THIRD PARTY
PAYOR, WHETHER ON OR AFTER THE CLOSING DATE,
(E) TAXES OF CONTRIBUTOR OR ANY SHAREHOLDER OR ANY OTHER PERSON OR ENTITY
RELATED TO OR AFFILIATED WITH THE CONTRIBUTOR OR SHAREHOLDER ARISING FROM OR AS
A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
(F) ANY LIABILITY OF CONTRIBUTOR OR THE SHAREHOLDERS FOR COSTS AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) INCURRED IN CONNECTION
WITH THE NEGOTIATION, PREPARATION OF CLOSING OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR THE OTHER DOCUMENTS TO BE EXECUTED IN CONNECTION HEREWITH,
(G) ANY ACCRUED UNFUNDED RETIREMENT OR PENSION PLAN LIABILITIES,
(H) ANY LIABILITIES THAT ARE NOT SET FORTH ON EXHIBIT 1.3(b), OR
(I) ANY LIABILITY UNDER THE SECURITIES ACT, THE EXCHANGE ACT OR ANY OTHER
FEDERAL OR STATE "BLUE SKY" OR SECURITIES LAWS OR REGULATION, AT COMMON LAW OR
OTHERWISE, ARISING OUT OF OR BASED UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF A MATERIAL FACT RELATING TO CONTRIBUTOR OR ITS SHAREHOLDERS AND
PROVIDED TO PENTEGRA OR ITS COUNSEL BY THE CONTRIBUTOR OR ITS SHAREHOLDERS
SPECIFICALLY FOR INCLUSION IN ANY PRELIMINARY PROSPECTUS, THE REGISTRATION
STATEMENT OR ANY PROSPECTUS FORMING A PART THEREOF, OR ANY AMENDMENT THEREOF OR
SUPPLEMENT THERETO, ARISING OUT OF OR BASED UPON ANY OMISSION OR ALLEGED
OMISSION TO STATE THEREIN A MATERIAL FACT RELATING TO CONTRIBUTOR OR ITS
SHAREHOLDERS REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING.
IN CONNECTION WITH INDEMNITOR'S OBLIGATION TO INDEMNIFY FOR EXPENSES, INDEMNITOR
SHALL REIMBURSE EACH INDEMNIFIED PERSON FOR ALL SUCH EXPENSES AS THEY ARE
INCURRED BY SUCH INDEMNIFIED PERSON, PROVIDED THAT SUCH INDEMNIFIED PERSON
AGREES IN WRITING TO REFUND ALL SUCH REIMBURSED EXPENSES IF AND TO THE EXTENT
THAT IT IS FINALLY JUDICIALLY DETERMINED THAT SUCH INDEMNIFIED PERSON IS NOT
ENTITLED TO INDEMNIFICATION HEREUNDER.
10.4 INDEMNIFICATION PROCEDURE. Within sixty (60) days after Indemnified
Person receives written notice of the commencement of any action or other
proceeding in respect of which indemnification or reimbursement may be sought
hereunder, or within such lesser time as may be provided by law for the defense
of such action or proceeding, such Indemnified Person shall notify Indemnitor
thereof. If any such action or other proceeding shall be brought against any
Indemnified Person, Indemnitor shall, upon written notice given within a
reasonable time following receipt by Indemnitor of such notice from Indemnified
Person, be entitled to assume the defense of such action or proceeding with
counsel chosen by Indemnitor and reasonably satisfactory to Indemnified Person;
provided, however, that any Indemnified Person may at its own expense retain
separate counsel to participate in such defense. Notwithstanding the foregoing,
Indemnified Person shall have the right to employ separate counsel at
Indemnitor's expense and to control its own defense of such action or proceeding
if, in the reasonable opinion of counsel to such Indemnified Person, (a) there
are or may be legal defenses available to such Indemnified Person or to other
Indemnified Persons that are different from or additional to those available to
Indemnitor and which could not be adequately advanced by counsel chosen by
Indemnitor, or (b) a conflict or potential conflict exists between Indemnitor
and such Indemnified Person that would make such separate representation
advisable; provided, however, that in no event shall Indemnitor
be required to pay fees and expenses hereunder for more than one firm of
attorneys of Indemnified Person in any jurisdiction in any one action or
proceeding or group of related actions or proceedings. Indemnitor shall not,
without the prior written consent of any Indemnified Person, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding to which such Indemnified Person is a
party unless such settlement, compromise or consent includes an unconditional
release of such Indemnified Person from all liability arising or potentially
arising from or by reason of such claim, action or proceeding.
10.5 RIGHT OF SETOFF. In the event of any breach of warranty,
representation, covenant or agreement by Contributor or any Shareholder giving
rise to indemnification under SECTION 10.3 or SECTION 10.4 hereof, Pentegra
shall be entitled to offset the amount of damages incurred by it as a result of
such breach of warranty, representation, covenant or agreement against any
amounts payable by Pentegra, including the amounts payable under the Service
Agreement.
SECTION 11. TERMINATION. This Agreement may be terminated:
(a) at any time by mutual agreement of all parties;
(b) at any time by Pentegra if any representation or warranty of
Contributor or Shareholder contained in this Agreement or in any certificate or
other document executed and delivered by Contributor or any Shareholder pursuant
to this Agreement is or becomes untrue or breached in any material respect or if
Contributor or any Shareholder fails to comply in any material respect with any
covenant or agreement contained herein, and any such misrepresentation,
noncompliance or breach is not cured, waived or eliminated within twenty (20)
days after receipt of written notice thereof;
(c) at any time by Contributor or any Shareholder if any representation or
warranty of Pentegra contained in this Agreement or in any certificate or other
document executed and delivered by Pentegra pursuant to this Agreement is or
becomes untrue or breached in any material respect or if Pentegra fails to
comply in any material respect with any covenant or agreement contained herein
and such misrepresentation, noncompliance or breach is not cured, waived or
eliminated within twenty (20) days after receipt of written notice thereof;
(d) by Pentegra, Shareholders or Contributor if the transaction
contemplated hereby shall not have been consummated by December 31, 1997; or
(e) by Pentegra at any time prior to the Closing Date if Pentegra
determines in its sole discretion as the result of its legal, financial and
operational due diligence with respect to Contributor, that such termination is
desirable and in the best interests of Pentegra.
SECTION 12. TRANSFER REPRESENTATIONS.
12.1 TRANSFER RESTRICTIONS. For a period of one year from the Closing Date,
Contributor shall not voluntarily (a) sell, assign, exchange, transfer,
encumber, pledge, distribute, appoint or otherwise dispose of (i) any shares of
Pentegra Common Stock received by such party hereunder, (ii) any interest
(including without limitation, an option to buy or sell) in any shares of
Pentegra Common Stock, in whole or in part, and no such attempted transfer shall
be treated as effective for any purpose or (b) engage in any transaction,
whether or not with respect to any shares of Pentegra Common Stock or any
interest therein, the intent or effect of which is to reduce the risk of owning
shares of Pentegra Common Stock. The certificates evidencing the Pentegra
Common Stock delivered to Contributor pursuant to the terms hereof will bear a
legend substantially in the form set forth below and containing such other
information as Pentegra may deem necessary or appropriate:
The shares represented by this certificate may not be voluntarily sold,
assigned, exchanged, transferred, encumbered, pledged, distributed,
appointed or otherwise disposed of, and the issuer shall not be required to
give effect to any attempted voluntary sale, assignment, exchange,
transfer, encumbrance, pledge, distribution, appointment or other
disposition prior to _________ [date that is one year from the Closing
Date]. Upon the written request of the holder of this certificate, the
issuer agrees to remove this restrictive legend (and any stop order placed
with the transfer agent) after the date specified above.
12.2 INVESTMENTS; COMPLIANCE WITH LAW. Contributor and Shareholders
acknowledge that the shares of Pentegra Common Stock to be delivered to
Contributor pursuant to this Agreement have not been and will not be registered
under the Securities Act of 1933 and may not be resold without compliance with
the Securities Act of 1933. The Pentegra Common Stock to be acquired by
Contributor pursuant to this Agreement is being acquired solely for its own
account, for investment purposes only and with no present intention of
distributing, selling or otherwise disposing of it in connection with a
distribution. Contributor covenants, warrants and represents that none of the
shares of Pentegra Common Stock issued to it will be offered, sold, assigned,
pledged, hypothecated, transferred or otherwise disposed of except after full
compliance with all of the applicable provisions of the Securities Act, as
amended, and the rules and regulations of the Securities Exchange Commission and
applicable state securities laws and regulations. All certificates evidencing
shares of Pentegra Common Stock shall bear the following legend in addition to
the legend referenced in SECTION 12.1.
The shares represented hereby have not been registered under the Securities
Act of 1933 (the "Act") and may only be sold or otherwise transferred if
the holder hereof complies with the Act and applicable securities laws.
In addition, certificates evidencing shares of Pentegra Common Stock shall
bear any legend required by the securities or blue sky laws of any state where
Contributor resides.
12.3 ECONOMIC RISK; SOPHISTICATION. Contributor and Shareholders are able
to bear the economic risk of an investment in Pentegra Common Stock acquired
pursuant to this Agreement and can afford to sustain a total loss of such
investment and have such knowledge and experience in financial and business
matters that they are capable of evaluating the merits and risks of the proposed
investment and therefore have the capacity to protect their own interests in
connection with the acquisition of the Pentegra Common Stock. Contributor,
Shareholders and their representatives have had an adequate opportunity to ask
questions and receive answers from the officers of Pentegra concerning any and
all matters relating to the background and experience of the officers and
directors of Pentegra, the plans for the operations of the business of Pentegra,
and any plans for additional acquisitions and the like. Contributor,
Shareholders and their representatives have asked any and all questions in the
nature described in the preceding sentence and all questions have been answered
to their satisfaction. Contributor and Shareholders are "accredited investors"
as defined in Regulation D of the Securities Act of 1933, as amended.
SECTION 13. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Contributor and
Shareholders recognize and acknowledge that they had in the past, currently
have, and in the future may possibly have, access to certain confidential
information of Pentegra that is valuable, special and unique assets of
Pentegra's businesses. Contributor and Shareholders agree that it will not
disclose such confidential information to any person, firm, corporation,
association or other entity for any purpose or reason whatsoever, unless (i)
such information becomes available to or known by the public generally through
no fault of Contributor or Shareholders, (ii) disclosure is required by law or
the order of any governmental authority under color of law, provided, that prior
to disclosing any information pursuant to this clause (ii), Contributor and
Shareholders shall, if possible, give prior written notice thereof to the other
parties hereto, and provide such other parties hereto with the
opportunity to contest such disclosure, (iii) Contributor and Shareholders
reasonably believe that such disclosure is required in connection with the
defense of a lawsuit against the disclosing party, or (iv) Contributor and
Shareholders are the sole and exclusive owner of such confidential
information as a result of the transactions contemplated hereunder or
otherwise. In the event of a breach or threatened breach by Contributor or
Shareholders of the provisions of this SECTION 13, Pentegra shall be entitled
to an injunction restraining Contributor and Shareholders from disclosing, in
whole or in part, such confidential information. Nothing herein shall be
construed as prohibiting Pentegra from pursuing any other available remedy
for such breach or threatened breach, including the recovery of damages. The
obligations of the parties under this SECTION 13 shall survive the
termination of this Agreement.
SECTION 14. MISCELLANEOUS.
14.1 TAX COVENANT. The parties intend that the transactions contemplated
by this Agreement, together with the transactions contemplated by the Other
Agreement and the Initial Public Offering, will qualify as an exchange meeting
the requirements of Section 351 of the Code. The tax returns (and schedules
thereto) of Shareholders, Contributor and Pentegra shall be filed in a manner
consistent with such intention and Contributor and Pentegra shall each provide
the other with such tax information, reports, returns or schedules as may be
reasonably required to assist the other in so reporting the transactions
contemplated hereby.
14.2 NOTICES. Any communications required or desired to be given hereunder
shall be deemed to have been properly given if sent by hand delivery, or by
facsimile AND overnight courier, to the parties hereto at the following
addresses, or at such other address as either party may advise the other in
writing from time to time:
If to Pentegra:
Pentegra Dental Group, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of each notice directed to Pentegra to:
▇▇▇▇▇ ▇. ▇▇▇▇, III, Esquire
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Contributor or Shareholders:
To address set forth on EXHIBIT 14.2
with a copy to:
Person and address set forth on EXHIBIT 14.2
All such communications shall be deemed to have been delivered on the date of
hand delivery or on the next business day following the deposit of such
communications, properly addressed and postage prepaid with the overnight
courier.
14.3 FURTHER ASSURANCES. Each party hereby agrees to perform any further
acts and to execute and deliver any documents which may be reasonably necessary
to carry out the provisions of this Agreement.
14.4 EACH PARTY TO BEAR COSTS. Subject to SECTION 14.12, each of the
parties to this Agreement shall pay all of the costs and expenses incurred by
such party in connection with the transactions contemplated by this Agreement,
whether or not such transactions are consummated. Without limiting the
generality of the foregoing and whether or not such liabilities may be deemed to
have been incurred in the ordinary course of business, Pentegra shall not be
liable to or required to pay, either directly or indirectly, any fees and
expenses of legal counsel, accountants, auditors or other persons or entities
retained by Contributor or any Shareholder for services rendered in connection
with negotiating and closing the transactions contemplated by this Agreement or
the documents to be executed in connection herewith, whether or not such costs
or expenses are incurred before or after the Closing Date.
14.5 PUBLIC DISCLOSURES. Each party shall keep this Agreement and its
terms confidential, and shall make no press release or public disclosure, either
written or oral, regarding the transactions contemplated by this Agreement
without the prior written consent of the other party, provided that the
foregoing shall not prohibit any disclosure (a) by press release, filing or
otherwise that Pentegra has determined in good faith judgment to be required by
Federal securities laws or the rules of the National Association of Securities
Dealers, (b) to attorneys, accountants, investment bankers or other agents of
the parties assisting the parties in connection with the transactions
contemplated by this Agreement, and (c) by Pentegra in connection with the
conduct of its Initial Public Offering and conducting an examination of the
operations and assets of Contributor.
14.6 GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA AND APPLIED WITHOUT
GIVING EFFECT TO ANY CONFLICTS OF LAWS PRINCIPLES.
14.7 CAPTIONS. The captions or headings in this Agreement are made for
convenience and general reference only and shall not be construed to describe,
define or limit the scope or intent of the provisions of this Agreement.
14.8 INTEGRATION OF EXHIBITS. All Exhibits attached to this Agreement are
integral parts of this Agreement as if fully set forth herein, and all
statements appearing therein shall be deemed disclosed for all purposes and not
only in connection with the specific representation in which they are explicitly
referenced.
14.9 ENTIRE AGREEMENT/AMENDMENT. THIS INSTRUMENT, INCLUDING ALL EXHIBITS
ATTACHED HERETO, CONTAINS THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDES ANY
AND ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS BETWEEN THE PARTIES, WRITTEN OR
ORAL, WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY.
14.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which when so executed shall be deemed to be an original,
and such counterparts shall together constitute and be one and the same
instrument
14.11 BINDING EFFECT/ASSIGNMENT. This Agreement shall be binding on,
and shall inure to the benefit of, the parties hereto, and their respective
successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No party may assign any
right or obligation hereunder without the prior written consent of the other
parties; provided, however, that Pentegra may assign its rights and delegate
its obligations hereunder to any entity that is an affiliate of Pentegra.
For purposes of this Agreement an "affiliate" of Pentegra shall include any
entity that, through one or more intermediaries is, controlled, controlled by
or under common control with, Pentegra. Upon any such assignment prior to
the Closing, all references herein to Pentegra (including those to Pentegra
Common Stock) shall be deemed to include references to the assignee and the
assignee's common stock. Notwithstanding any such assignment, Pentegra shall
not, absent a written release from Contributor, be relieved from its
obligations to Contributor under this Agreement.
14.12 COSTS OF ENFORCEMENT. In the event that Pentegra, on the one
hand, or Contributor, on the other hand, file suit in any court against any
other party to enforce the terms of this Agreement against the other party or to
obtain performance by it hereunder, the prevailing party will be entitled to
recover all reasonable costs, including reasonable attorneys' fees, from the
other party as part of any judgment in such suit. The term "prevailing party"
shall mean the party in whose favor final judgment after appeal (if any) is
rendered with respect to the claims asserted in the Complaint. "Reasonable
attorneys' fees" are those reasonable attorneys' fees actually incurred in
obtaining a judgment in favor of the prevailing party.
14.13 PRORATIONS. Contributor agrees to reimburse Pentegra at
Closing a pro rata portion of all taxes levied upon the Assets for the
calendar year in which the Closing occurs. Such taxes shall be estimated,
apportioned and pro-rated among Contributor and Pentegra as of the Closing
Date, and the prorated amount due Pentegra shall be credited to the cash
portion of the Purchase Consideration. Upon payment by Pentegra of such
taxes actually assessed and paid on the Assets, Pentegra shall calculate the
apportionment of such taxes and shall pay Contributor or may demand from
Contributor, and Contributor agrees to pay, the amount necessary to correct
the estimate and proration made at Closing.
14.14 AMENDMENTS; WAIVERS. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all the parties
hereto. Any waiver of the terms and conditions hereof must be in writing, and
signed by the parties hereto. The waiver of any of the terms and conditions of
this Agreement shall not be construed as a waiver of any other terms and
conditions hereof.
14.15 ARBITRATION. Upon the request of either Pentegra or the
Contributors or Shareholders (hereinafter referred to as a "Party"), whether
made before or after the institution of any legal proceeding, any dispute among
the parties hereto in any way arising out of, related to, or in connection with
this Agreement (hereinafter a "Dispute"), shall be resolved by binding
arbitration in accordance with the terms of this Section (hereinafter the
"Arbitration Program").
All Disputes between the Parties shall be resolved by binding arbitration
administered by the American Arbitration Association (the "AAA") in accordance
with the terms of this Arbitration Program, the Commercial Arbitration Rules of
the AAA. In the event of any inconsistency between this Arbitration Program and
those rules or statutes, then the terms of this Arbitration Program shall
control.
The parties hereto agree to adhere to all warranties and covenants (as
described herein) until such time as the arbitration process has been completed
and the arbitrators have determined each party's post-arbitration obligations
and responsibilities as it relates to such warranties and covenants. No
provision of, nor the exercise of any rights under, this Arbitration Program
shall limit the right of any Party at any time to seek or use ancillary or
preliminary judicial or non-judicial self help remedies for the purposes of
obtaining, perfecting, preserving, or foreclosing upon any personal property in
which there has been granted a security interest or lien by a Party in the
Documents. In Disputes involving indebtedness or other monetary obligations,
each Party agrees that the other Party may proceed against all liable persons,
jointly and severally against one or more of them, without impairing rights
against other liable persons. Nor shall a Party be required to join the
principal obligor or any other liable persons (e.g., sureties or guarantors) in
any proceeding against a particular person. A Party may release or settle
with one or more liable persons as the Party deems fit without releasing or
impairing rights to proceed against any persons not so released. All
statutes of limitation that would otherwise be applicable shall apply to any
arbitration proceeding.
The party seeking arbitration shall notify the other Party, in writing, of
that Party's desire to arbitrate a dispute; and each Party shall, within twenty
(20) days from the date such notification is received, select an arbitrator, and
those two arbitrators shall select a third arbitrator within ten (10) days
thereafter. The issues or claims in dispute shall be committed to writing,
separately stated and numbered, and each party's proposed answers or contentions
shall be signed below the questions. Failure by a party to select an arbitrator
within the prescribed time period shall serve as that Party's acquiescence and
acceptance of the other party's selection of arbitrator. The arbitrators shall
resolve all Disputes in accordance with the applicable substantive law. Any
Dispute shall be decided by a majority vote of three arbitrators, unless the
claim or amount in controversy does not exceed $100,000.00, in which case a
single arbitrator (who shall have authority to render a maximum award of
$100,000.00, including all damages of any kind, costs and fees) may decide the
Dispute. The arbitrators may grant any remedy or relief that the arbitrators
deem just and equitable and within the scope of this Arbitration Program. The
arbitrators may also grant such ancillary relief as is necessary to make
effective the award. In all arbitration proceedings the arbitrators shall make
specific and written findings of fact and conclusions of law. In all
arbitration proceedings in which the amount in controversy exceeds $100,000.00,
in the aggregate, the Parties shall have in addition to the statutory right to
seek vacation or modification of any award pursuant to applicable law, the right
to seek vacation or modification of any award that is based in whole, or in
part, on an incorrect or erroneous ruling of law by appeal to an appropriate
court having jurisdiction; provided, however, that any such application for
vacation or modification of an award based on an incorrect ruling of law must be
filed in a court having jurisdiction over the Dispute within 15 days from the
date the award in rendered. The arbitrators' findings of fact shall be binding
on all Parties and shall not be subject to further review except as otherwise
allowed by applicable law.
To the maximum extent practicable, an arbitration proceeding hereunder
shall be concluded within 180 days of the filing of the Dispute with AAA.
Arbitration proceedings hereunder shall be conducted where agreed to in writing
by the Parties or, in the absence of such agreement in Phoeniz, Arizona or the
headquarters of Pentegra if other than Phoeniz, Arizona. The provisions of this
Arbitration Program shall survive any termination, amendment, or expiration of
the Documents, unless the Parties otherwise expressly agree in writing making
specific reference to this Arbitration Program. To the extent permitted by
applicable law, the arbitrator shall have the power to award recovery of all
costs and fees (including attorney's fees, administrative fees, and arbitrators'
fees) to the prevailing Party. This Arbitration Program may be amended,
changed, or modified only by a writing which specifically refers to this
Arbitration Program and which is signed by all the Parties. If any term,
covenant, condition or provision of the Arbitration Program is found to be
unlawful or invalid or unenforceable, such illegality or invalidity or
unenforceable shall not affect the legality, validity or enforceability of the
remaining parts of this Arbitration Program, and all such remaining parts hereof
shall be valid and enforceable and have full force and effect as if the illegal,
invalid or unenforceable part had not been included. Each Party agrees to keep
all Disputes and arbitration proceedings strictly confidential, except for
disclosures of information required in the ordinary course of business of the
Parties or by applicable law or regulation.
14.16 SEVERABILITY. If any provision of this Agreement shall be found
to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable and this Agreement shall be construed and
enforced as if such provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect. In lieu of such
provision, there shall be added automatically as part of this Agreement, a
provision as similar in its terms to such provision as may be possible and be
legal, valid and enforceable.
[End of Page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S., P.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, D.D.S.
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, DDS, President
PENTEGRA DENTAL GROUP, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Its: Senior VP
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇, D.D.S.
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, D.D.S.
INDEX TO EXHIBITS
Exhibit Description
------- ------------
Annex I Acquisition Consideration
A Target Companies
1.1 Assets
1.2(b) Excluded Assets
1.3(b) Assumed Liabilities
2.1 Corporate Existence; Good Standing; Shareholders/Ownership
2.3 Permits and Licenses
2.4 Consents
2.8 Leases
2.10 Real and Personal Property; Encumbrances
2.12 Patents and Trademarks; Names
2.13 Directors and Officers; Payroll Information; Employment
Agreements
2.15 Contracts (other than Leases and Employment Agreements)
2.16 Subsequent Events
2.19 Debt
2.20 Insurance Policies
2.21 Employee Benefit Plans
2.26 Banking Relations
2.28 Payors
7.7 Form of Service Agreement
7.8 Form of Employment Agreement
9.1(l) Form of Registration Rights Agreement
14.2 Addresses for Notice