ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this 26th day of
September, 1996, by and among First American Dental Benefits, Inc., a Texas
corporation ("AMERICAN DENTAL"), D & R Dental Services Group (for itself and on
behalf of Metroplex Dental Group/Irving L.L.P. and its affiliates)
("METROPLEX"), Xxxxx X. Xxxxxxxxx, D.D.S. ("XX. XXXXXXXXX") and Xxxxxx X.
Xxxxxx, D.D.S. ("XX. XXXXXX").
WHEREAS, Safeguard Health Enterprises, Inc., a Delaware corporation
("SAFEGUARD"), American Dental, Xx. Xxxxxxxxx, Xx. Xxxxxx, and Xxxxxxx X. Xxxx,
Xx., have entered into a Stock Purchase Agreement, dated as of August 9, 1996
("STOCK PURCHASE AGREEMENT"; capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Stock Purchase Agreement),
pursuant to which, among other things, Safeguard has agreed to purchase the
stock of American Dental;
WHEREAS, Safeguard, American Dental, Xx. Xxxxxxxxx, Xx. Xxxxxx, Xxxxxxx X.
Xxxx, Xx. and T.R.C. Agency, Inc. have entered into a letter agreement dated as
of August 9, 1996 (the "LETTER AGREEMENT") which amends certain provisions of
the Stock Purchase Agreement;
WHEREAS, pursuant to Section 6.2 of the Stock Purchase Agreement, American
Dental, Metroplex, Xx. Xxxxxxxxx and Xx. Xxxxxx are required to execute and
deliver this Assignment and Assumption Agreement whereby Metroplex assigns to
American Dental and American Dental assumes from Metroplex the Contracts (as
defined below) and any and all obligations associated with the Contracts that
arise out of the ownership of the Contracts after the closing (other than as
provided herein);
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Metroplex hereby assigns to American Dental all its right, title and
interest in and to the contracts (the "CONTRACTS") set forth on Exhibit A
hereto.
2. American Dental hereby undertakes and agrees from and after the
Closing, subject to the limitations contained herein, to assume and to pay,
perform and discharge when due the liabilities (the "LIABILITIES") arising out
of American Dental's ownership of the Contracts after the Closing. American
Dental shall discharge in a timely manner or make adequate provision for all of
such Liabilities, PROVIDED that American Dental shall have no responsibility or
liability for any Liabilities for which the related revenues attributable to
such Contracts have not been retained for the payment of the corresponding
capitation and commission payments due thereafter; and PROVIDED further, the
ability to contest in good faith, any such claim of liability asserted in
respect thereof.
3. Except for the Liabilities assumed in paragraph 2. above, American
Dental shall not assume by this Assignment and Assumption Agreement or by virtue
of the transactions contemplated by the Stock Purchase Agreement, and shall have
no liability for any liabilities arising prior to the Closing Date with respect
to the Contracts or the business of Metroplex, or for commissions or capitation
owing in connection with the Contracts for which the related revenues have not
been retained for payment against such liability (collectively, the "EXCLUDED
LIABILITIES"). Metroplex shall pay, perform and discharge, when due, all of the
Excluded Liabilities.
4. No persons other than American Dental, Metroplex, Xx. Xxxxxxxxx and
Xx. Xxxxxx, their successors and assigns shall have any rights under this
Assignment and Assumption Agreement of the provisions contained herein.
5. This Assignment and Assumption Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
6. This Assignment and Assumption Agreement shall be governed by and
construed in accordance with the laws of the State of Texas applicable to a
contract executed and performed in such State without giving effect to the
applicable conflicts of laws principles thereof.
7. The terms of the Stock Purchase Agreement and Letter Agreement shall
be incorporated by reference in their entirety into this Assignment and
Assumption Agreement, as if such terms were expressly set forth herein. In the
event of any conflict between the provisions of this Agreement and the Stock
Purchase Agreement or Letter Agreement with respect to the matters contained
herein, the terms of this Agreement shall control.
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IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption
Agreement to be entered into as of the date first written above.
D AND R DENTAL SERVICES GROUP
(METROPLEX DENTAL GROUP/IRVING L.L.P.)
By: American Dental Benefits Group, Inc.
Title: Sole General Partner
By: XXXXX X. XXXXXXXXX, D.D.S
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Name: Xxxxx X. Xxxxxxxxx, D.D.S.
Title: President and Secretary
FIRST AMERICAN DENTAL BENEFITS, INC.
By: XXXXX X. XXXXXXXXX, D.D.S
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Name: Xxxxx X. Xxxxxxxxx, D.D.S.
Title: Chairman of the Board and Chief Executive
Officer
By: Xxxxxx X. Xxxxxx,D.D.S.
---------------------------------------
Name: XXXXXX X. XXXXXX, D.D.S.
Title: Vice President and Secretary/Treasurer
By: XXXXX X. XXXXXXXXX, D.D.S.
-----------------------------------
XXXXX X. XXXXXXXXX, D.D.S.
By: XXXXXX X. XXXXXX,D.D.S.
-----------------------------------
XXXXXX X. XXXXXX, D.D.S.
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