As filed with the Securities and Exchange Commission on September 3, 2025
Registration Number 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Park Dental Partners, Inc.
(Exact name of registrant as specified in its charter)
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Minnesota
(State or Other Jurisdiction of
Incorporation or Organization)
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8090
(Primary Standard Industrial
Classification Code Number)
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93-2020683
(I.R.S. Employer
Identification Number)
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2200 County Road C West, Suite 2210
Roseville, Minnesota 55113
(651) 633-0500
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Peter G. Swenson
Chief Executive Officer
Park Dental Partners, Inc.
2200 Country Road C West, Suite 2210
Roseville, Minnesota 55113
(651) 633-0500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
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Philip T. Colton, Esq.
Winthrop & Weinstine, P.A.
225 S. Sixth Street, Suite 3500
Minneapolis, Minnesota 55402
Telephone: (612) 604-6400
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Jonathan R. Zimmerman, Esq.
Tyler Vivian, Esq.
Faegre Drinker Biddle Reath LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-1425
(612) 766-7000
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Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filed, an accelerated filed, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging Growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. The securities described herein may not be sold until the registration statement filed with the U.S. Securities and Exchange Commission is declared effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 3, 2025
Shares
Underwriter Warrants to Purchase Shares
Shares Underlying the Underwriter Warrants
COMMON STOCK
This is the initial public offering of shares of our Common Stock, par value $0.0001 per share. We are selling shares of Common Stock.
Prior to this offering, there has been no public market for our Common Stock. The initial public offering price of our Common Stock is expected to be between $ and $ per share. We intend to list our Common Stock on the Nasdaq Capital Market under the symbol “PARK”.
The underwriters have a 30-day option to purchase up to an additional shares of Common Stock from us to cover over-allotments.
Investing in our Common Stock involves risks. See “Risk Factors” beginning on page 22.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
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Price to
Public
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Underwriting
Discounts and
Commissions(2)
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Proceeds,
Before
Expenses, to Us
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Per Share
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$ |
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$ |
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$ |
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Total(1)
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$ |
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$ |
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$ |
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(1)
Assumes no exercise of the over-allotment option by the underwriters.
(2)
The registration statement, of which this prospectus is a part, also registers for sale a warrant to purchase shares of Common Stock to be issued to the representative of the underwriters as well as the shares underlying such warrant. We have agreed to issue the warrant to the representative as a portion of the underwriting compensation payable to the underwriters in connection with this offering. See “Underwriting” beginning on page of this prospectus for additional information regarding total underwriting compensation.
Delivery of the shares of Common Stock against payment will be made on or about , 2025.
Northland Capital MarketsCraig-Hallum
The date of this prospectus is , 2025.
TABLE OF CONTENTS
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2
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3
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3
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3
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4
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5
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22
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41
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42
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43
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44
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45
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47
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65
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82
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101
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104
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106
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110
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112
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114
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116
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122
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122
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122
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F-1
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ABOUT THIS PROSPECTUS
You should rely only on the information contained in this prospectus or in any free writing prospectus we may authorize to be delivered or made available to you. Neither we nor the underwriters have authorized anyone to provide you with different information. Neither we nor the underwriters take any responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. The information in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus, or any free writing prospectus, as the case may be, or any sale of shares of our Common Stock. Our business, results of operations and financial condition may have changed since such date. We will include interim financial information when the registration statement is publicly filed for the first time.
For investors outside the United States: we are offering to sell, and seeking offers to buy, shares of our Common Stock only in jurisdictions where offers and sales are permitted. Neither we nor the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the
United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of Common Stock and the distribution of this prospectus outside the United States.
INDUSTRY AND MARKET DATA
Within this prospectus, we reference information and statistics regarding the industry in which we operate. We have obtained this information and statistics from various independent third-party sources, independent industry publications, reports by market research firms and other independent sources. Some data and other information contained in this prospectus are also based on management’s estimates and calculations, which are derived from our review and interpretation of internal surveys and independent sources. The information is as of its original publication dates (and not as of the date of this prospectus). Data regarding the industry in which we compete and our market position and market share within this industry are inherently imprecise and are subject to significant business, economic and competitive uncertainties beyond our control, but we believe they generally indicate size, position and market share within this industry.
In addition, assumptions and estimates of our and our industry’s future performance are subject to a high degree of uncertainty and risk due to a variety of factors, including those described in “Risk Factors.” These and other factors could cause our future performance to differ materially from our assumptions and estimates. See “Forward-Looking Statements.” As a result, you should be aware that market, ranking, and other similar industry data included in this prospectus, and estimates and beliefs based on that data may not be reliable. Neither we nor the underwriters can guarantee the accuracy or completeness of any such information contained in this prospectus.
TRADEMARKS, SERVICE MARKS, TRADENAMES, AND COPYRIGHTS
We own a number of registered and common law trademarks and pending applications for trademark registrations in the United States. Unless otherwise indicated, all trademarks, service marks, trade names, and copyrights appearing in this prospectus are proprietary to us, our affiliates, and/or licensors. This prospectus also contains trademarks, tradenames, service marks, and copyrights of third parties, which are the property of their respective owners. Solely for convenience, the trademarks, tradenames, service marks, and copyrights referred to in this prospectus may appear without the ®, ™, SM, or © symbols, but such references without the symbols are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensors to these trademarks, tradenames, service marks, and copyrights. We do not intend our use or display of other parties’ trademarks, tradenames, service marks, or copyrights to imply, and such use or display should not be construed to imply a relationship with, or endorsement or sponsorship of us by, these other parties.
BASIS OF PRESENTATION
We are a dental resource organization that provides administrative and other business support services to affiliated general and multi-specialty dental practices. We currently have exclusive long-term agreements with the following affiliated dental practices — PDG, P.A., Dental Specialists of Minnesota, PLLC and Orthodontic Specialists of Minnesota, PLLC, (together “affiliated dental practices”). We currently support over 200 dentists across 85 practice locations. As a result of our exclusive, long-term Administrative Resource Agreements with our affiliated dental practices, we have a variable interest and are the primary beneficiary in those affiliated dental practices. Accordingly, our consolidated financial results include the consolidated results of the affiliated dental practices in which we do not hold an equity interest. See further description under Note 16, Variable Interest Entities, of the Notes to the Consolidated Financial Statements presented elsewhere in this Prospectus.
Numerical figures included in this prospectus have been subject to rounding adjustments. Accordingly, numerical figures shown as totals in various tables may not be arithmetic aggregations of the figures to which they relate.
NON-GAAP FINANCIAL MEASURES
This prospectus contains “non-GAAP financial measures” that are financial measures that either exclude or include amounts that are not excluded or included in the most directly comparable measures calculated and presented in accordance with accounting principles generally accepted in the United States (“GAAP”). Specifically, we make use of the non-GAAP financial measures “Adjusted EBITDA,” “Adjusted EBITDA Percentage,” “Adjusted Gross Margin,” and “Adjusted Gross Margin Percentage.”
We present Adjusted EBITDA, Adjusted EBITDA Percentage, Adjusted Gross Margin, and Adjusted Gross Margin Percentage in this prospectus as supplemental measures of financial performance that are not required by, or presented in accordance with, GAAP. We believe these non-GAAP measures assist investors and analysts in comparing our operating performance across reporting periods on a consistent basis by excluding items that we do not believe are indicative of our operating performance. Management believes Adjusted EBITDA, Adjusted EBITDA Percentage, Adjusted Gross Margin, and Adjusted Gross Margin Percentage are useful to investors in highlighting trends in our operating performance, while other measures can differ significantly depending on long-term strategic decisions regarding capital structure, the tax jurisdictions in which we operate, and capital investments. Management uses Adjusted EBITDA, Adjusted EBITDA Percentage, Adjusted Gross Margin and Adjusted Gross Margin Percentage to supplement GAAP measures of performance in the evaluation of the effectiveness of our business strategies, to make budgeting decisions, and to compare our performance against that of other peer companies using similar measures. Management supplements GAAP results with non-GAAP financial measures to provide a more complete understanding of the factors and trends affecting the business than GAAP results alone provide.
Adjusted EBITDA, Adjusted EBITDA Percentage, Adjusted Gross Margin, and Adjusted Gross Margin Percentage are not recognized terms under GAAP and should not be considered as alternatives to net income (loss) or gross margin as measures of financial performance or cash provided by operating activities as measures of liquidity, or any other performance measure derived in accordance with GAAP. Additionally, these measures are not intended to be measures of free cash flow available for management’s discretionary use, as they do not consider certain cash requirements such as interest payments, tax payments, and debt service requirements. Because not all companies use identical calculations, the presentation of these measures may not be comparable to other similarly titled measures of other companies and can differ significantly from company to company. For a discussion of the use of these measures and a reconciliation of the most directly comparable GAAP measures, see “Summary — Summary Historical Financial and Other Data.”
NON-GAAP MEASURES DEFINITIONS
“Adjusted EBITDA” is defined as net income (loss) adjusted to exclude interest expense (income), net, provision for (benefit from) income taxes, depreciation and amortization, share-based compensation, discretionary shareholder bonuses, non-qualified deferred compensation expenses, and restructuring costs.
“Adjusted EBITDA Percentage” is defined as Adjusted EBITDA as a percentage of consolidated revenue;
“Adjusted Gross Margin” is defined as Gross Margin excluding depreciation expense, discretionary shareholder bonuses, non-qualified deferred compensation expenses, and restructuring costs.
“Adjusted Gross Margin Percentage” is defined as Adjusted Gross Margin as a percentage of consolidated revenue.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus. This summary does not contain all of the information you should consider before investing in our Common Stock. You should read this entire prospectus carefully, especially the risks of investing in our Common Stock discussed under “Risk Factors” and the consolidated financial statements and related notes included elsewhere in this prospectus, before making an investment decision. As used in this prospectus, the terms “Company,” “we,” “our,” “us,” and “PDPI”, refer to Park Dental Partners, Inc., as well as the affiliated dental practices in which we do not hold an equity interest but which are consolidated as a result of contractual relationships which provide the Company a beneficial and controlling financial interest in the affiliated dental practices, except as otherwise indicated herein or as the context otherwise requires.
Our Company
As a dental resource organization (“DRO”) operating through Park Dental Partners, Inc., and subsidiaries, we provide comprehensive business support services including clinical team members, administrative personnel, facilities and equipment to our affiliated general and multi-specialty dental practices (which are not legal subsidiaries) throughout Minnesota and Wisconsin. Our network of affiliated dental practices employs over 200 dentists across 85 practice locations, was ranked as one of Minnesota’s largest private companies by revenue by the Minneapolis/St Paul Business Journal, in June 2025. Our clinical support team includes over 900 hygienists, dental assistants, and patient care coordinators that support affiliated dentists in operating their dental practices. Our network of affiliated dental practices has been operating for over fifty years, beginning with the establishment of the general dentistry group in 1972. The mission of our affiliated dental practices since inception has been to ensure patients enjoy the benefits of a lifetime of good oral health. This mission continues to be the driving force behind our organization today.
Our network of affiliated dental practices provides both general and specialty dental services, including oral surgery, periodontics, pediatric dentistry, prosthodontics, endodontics, and orthodontics, under long-term agreements with initial terms of 30 years, with automatic 5-year renewals. We have established a significant footprint and brand awareness in our current markets. Our revenues, derived primarily from our affiliated dental practices’ provision of dental services, were approximately $122.0 million and $117.5 million for the six months ended June 30, 2025 and 2024, respectively and were approximately $229.8 million and $223.5 million in 2024 and 2023, respectively.
Our material revenues are comprised of dental services, which includes the consolidated revenues of our affiliated dental practices. Dental services are provided to patients, who typically pay for services through private insurance plans, government insurance plans, or directly. Approximately 92% and 93% of total revenues for each of the six months ended June 30, 2025, and 2024, respectively, and approximately 93% of total revenues for each of the years ended December 31, 2024 and 2023, respectively, were derived from patients with private insurance or government sponsored plans. Dental care patients tend to be price-sensitive because many pay for a significant portion of their dental expenses on an out-of-pocket basis.
We have steadily grown by adding new dentists and team members, expanding existing practices, implementing operating efficiencies, and by acquiring existing practices. Our organic expansion includes opening de novo practices, which are new practice locations opened with our affiliated dentists in existing or new markets. Since the start of calendar 2014 we have acquired 40 practices and opened 11 de novo practices. On average, de novo practices are cash flow positive within approximately six months, meaning that the practice location monthly Gross Margin excluding depreciation is positive. Of the 11 de novo practices opened since 2014, more than 80% were cash flow positive within six months. We attribute this success to our established model that streamlines day-to-day dental practice operations by providing key business and administrative resources, allowing dentists and team members to focus on patient care. We plan to expand our existing general and multi-specialty dental brands, establishing a group of successful, respected dental practices.
Dentists hold a majority interest in our organization, which we believe is a key differentiator between our model and those of our competitors. Our model provides our affiliated dentists with significant organizational input because our affiliated dentists, who are majority shareholders in the business, are directly involved in our governance through their right to appoint three directors to the Board of Directors. We believe this right helps ensure that our affiliated dentists maintain a professional voice in governance that
helps focus the organization on ensuring patients enjoy the benefits of a lifetime of good oral health. We believe this compelling model allows for greater input and provides enhanced stewardship for dentists, which assists with attracting and retaining dental professionals and serves as a catalyst for future growth. By contrast, we believe traditional dental organization ownership structures, many of which are funded by private equity, introduce constraints and concessions that limit dentists’ clinical autonomy and can restrict or omit dentists’ professional voice in governance.
The Dental Services Industry
The dental services industry in the United States is a significant sector of the healthcare system, encompassing a wide range of services such as preventive care (cleanings, exams), restorative treatments (fillings, crowns) and specialty dental services, such as oral surgery, periodontics, pediatric dentistry, prosthodontics, endodontics and orthodontics. The affiliated dental practices we support deliver this full range of dental services.
The dental services industry is a large and growing market. According to 2023 estimates from National Health Expenditure Data, Centers for Medicare & Medicaid Services (“CMS”), the U.S. dental services market is valued at approximately $173 billion, and is expected to grow to over $266 billion by 2032. The industry typically experiences steady growth driven by increasing awareness of oral health, greater emphasis on periodontal maintenance, the aging population, and advancements in dental technology. In 2023, Americans spent approximately $67 billion out of pocket on dental care, with the majority of expenses falling under private insurance, out-of-pocket payments, and government programs like Medicaid.
The industry is in the early stages of consolidation, as independent dentists have seen value in aligning with dental support organizations that manage back-office services allowing dentists to spend more of their time on clinical patient care. According to the American Dental Association (“ADA”) Health Policy Institute, as of 2023, approximately 75% of U.S. dentists work in a solo practice or in a practice with just one other dentist. This ADA report also found that as of 2023, 13.8% of U.S. dentists work in a dental support organization, up from 7.4% in 2015. This reflects the growing trend of dentists joining support organizations, which provide business and administrative support services to dental practices, such as staffing, marketing, billing, and facility management. The growth of support organizations is driven by factors such as the rising operational costs of solo practices, changing business dynamics in healthcare, and the desire for dentists to focus more on clinical care while delegating administrative functions.
According to the 2022 Survey of Dental Practice by the American Dental Association (ADA), the average cost of operating a dental practice for a solo practitioner is typically 22% higher than the cost of running a group dental practice such as one supported by a dental support organization. These associated cost synergies are typically due to the efficiencies and economies of scale provided by support organizations, which handle administrative functions such as marketing, staffing, billing, and purchasing equipment and supplies, helping to lower overhead costs for the dental practices they support. These characteristics create an operating environment that is favorable to the support organization and affiliated practices and provides an attractive growth opportunity. This cost-efficiency, combined with the increasing complexity of running a dental practice, points to significant expansion potential for dental support organizations as the dental services market continues to evolve.
Dental services are primarily paid for via private insurance and out-of-pocket patient payments, and have low reliance on government programs for reimbursement. The dental services industry differs from other healthcare sectors due to its consumer-driven nature and distinct patient payment structure. According to CMS, 38.9% of dental services payments came from out-of-pocket consumer expenditures in 2023, compared to just 12.3% for other medical services. Furthermore, a large portion of dental services, about 44.3%, are financed through private sources, including private insurance and direct payments, with only 16.8% of expenditures covered by government programs like Medicaid and Medicare. This private financing structure contributes to the industry’s resilience and growth potential and enables quicker collection and reduced billing disputes.
Our Competitive Strengths
We believe the following competitive strengths contribute significantly to our success and position us for growth:
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History of Growth Through Affiliated Dental Practices/Organization Support. We have over 50 years of experience supporting dental practices, and in that time have grown revenues from zero to over $229 million. Through centralized management, economies of scale, advanced technology, and standardized clinical practices, we enable our practices to streamline operations, enhance patient care and drive growth and operating profits. This support has enabled the dental practices we support to grow from 145 dentists in 2015 to 206 in 2024, a 42% increase, and in the last two years since the commencement of fiscal 2023, our affiliated practices have grown from 192 dentists to 206 in 2024, a 7% increase.
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Patient Centered Quality Care. For over 50 years, our affiliated dental practices have focused on patient-centered care and have been leaders in oral health in the communities they serve, having been voted the Star Tribune Reader’s Choice — Minnesota’s Best “Gold Best Dentist” in each of the past 4 years. Patients at our affiliated dental practices typically return for preventative care treatment twice per year. As a result, our revenues are driven by a highly recurring patient base. In 2024, 89.2% of our general dentistry patients returned for subsequent appointments. Our affiliated dental practices have achieved industry-leading patient satisfaction scores with a 97th percentile ranking for 2024 in national Press Ganey Surveys, our practices are accredited with the Accreditation Association for Ambulatory Health Care (AAAHC) and we continually measure and seek to improve through internal quality assurance processes including on-going training, peer review and policy compliance assessments that assist our affiliated dental practices with delivering consistent care that benefits patient health outcomes.
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Leading market positions in large and growing markets. We support 85 practice locations in the states of Minnesota and Wisconsin. Our largest concentration of dentists is in Minnesota with 201 affiliated dentists, with most operating in the Minneapolis and St. Paul metro area. With more than 330,000 active patients, affiliated dental practices hold a leading market position of the estimated 3.2 million active dental patients within the seven county Minneapolis and St. Paul metro area. The concentrated presence of our affiliated dental practices within the markets we serve increases our internal patient referrals and makes our external marketing efforts more efficient and cost effective. The scale it provides enhances patient retention and new patient acquisition. Patient growth is supported primarily by “word of mouth” referrals by existing patients and is supplemented by marketing efforts online and in surrounding communities. The American Dental Association reports that nearly two-thirds (63.7%) of the new patients in general dentistry practices are referred by existing patients.
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Established infrastructure driving a low-cost operating structure. Our infrastructure creates a low-cost operating structure by centralizing administrative functions. We actively manage the supply chain of our affiliated dental practices, which allows us to leverage our purchasing volume to obtain favorable pricing from third party vendors. In addition to direct cost savings, we achieve operational efficiencies by sharing best practices across locations and provide centralized information technology support, advanced software applications, human resources, marketing, regulatory compliance, patient communication services, patient billing and other administrative services.
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Proven track record of acquiring and opening de novo practices with attractive unit economics. Since the start of calendar 2014, our affiliated dental practices have acquired 40 practices and opened and successfully operated 11 de novo practices. On average, the consideration paid to acquire these 40 dental practices was approximately $850 thousand per practice. The acquisition of practices and roll-out of de novo practices allows us to leverage our existing management team and operating costs, utilize our knowledge of the local market to secure the most attractive locations, and to increase practice density in a market to drive additional operating and marketing efficiencies. Based on our operating model, de novo practices are opened by the affiliated dental practice, with planning and other non-clinical support services, including staffing provided by the DRO. We collaborate with the affiliated practice to plan each de novo location. On average, our de novo practices required capital
investment of approximately $800 thousand per new location, and have typically been cash flow positive within approximately six months of opening.
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Innovative Governance Model for Professional Voice. We have created an innovative organizational structure that provides an optimal environment for dentists to practice. We believe this structure allows us to retain and attract dentists, (our most valuable asset), which in turn, drives growth for our organization. Our structure provides practicing dentists with clinical control over their practice and significant influence in the governance of the organization. This structure includes a non-consolidated advisory entity, DDS Advisor LLC, composed of 76 practicing member dentists from our affiliated dental practices who also hold a minimum prescribed equity position in Park Dental Partners, Inc. common stock. These advisory member dentists are responsible for electing the board of managers, which, in turn, holds the authority to appoint a minimum of three directors to the Park Dental Partners, Inc. Board of Directors. The advisory entity itself does not possess any equity interest, and the members of its board of managers serve in an uncompensated capacity. Member units in DDS Advisor LLC have no economic value. We believe this unique structure is a key pillar of future growth through dentist recruitment and practice acquisition. We believe it also reduces dentist turnover and ensures a long-term focus on quality care. Our leadership will continue to prioritize patient care and team member satisfaction, focusing on the same goals that have driven our affiliated dental practices success over the past 50+ years. This stability helps ensure that our organization can pursue growth and innovation while fostering a familiar and supportive atmosphere for both dentists, team members and patients.
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Dyad Leadership Model. We operate under a dyad leadership model where clinical leaders partner with administrative leaders to oversee support functions. This is a best-in-class healthcare operating model which allows each dentist to focus on core competencies to create a harmonious, patient-centered healthcare experience, and has led to both industry-leading 97th percentile patient satisfaction score in the 2024 national Press Ganey Survey, and accreditation of our affiliated practices with the Accreditation Association for Ambulatory Health Care (AAAHC). With over 40 dentists actively involved in some leadership capacity in the business, this model ensures that our care is both clinically excellent and operationally efficient, always prioritizing the well-being and satisfaction of our patients. This collaboration ensures that every decision, from daily operations to strategic planning, is deeply rooted in our commitment to patient care.
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Experienced and Proven Leadership Team. We are led by an experienced team of executives and dental professionals with an average of over 25 years of experience in successfully growing and supporting our affiliated dental practices. Our chief executive officer has served in leadership capacities within the organization for over two decades, steering executive and operational functions, and leading the growth of the group from 99 dentists to over 200 dentists with a clinical support team including over 900 hygienists, dental assistants, and patient care coordinators. In addition, our chief executive officer works in close collaboration with key dentist leaders in all facets of the governance and management of the organization.
Our Growth Strategy
Our growth strategy is built upon the following elements of our business strategy:
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Leverage proven track record. We have a proven track record of achieving growth in revenues from existing locations. We have increased revenue on a year over year basis related to dental practices operating for at least 13 full months (Same Practice Revenue), by 5.8% and 3.4% for the six months ended June 30, 2025 and 2024, respectively, and 1.6% and 6.3% for the years ended December 31, 2024 and 2023, respectively. We have also grown the number of practice locations within our organization from 60 to 85 since 2014 and the number of dentists within our affiliated dental practices has increased from 136 to 206 over the same timeframe.
We plan to continue to support and assist our practices to build additional practice revenue by:
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adding dentists and hygienists;
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increasing patients’ completion of their diagnosed dental treatment plan;
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introducing new specialty services;
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improving dentist and hygienist efficiency and productivity through technology and workflow enhancements, and
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opening de novo practices in existing markets.
We currently have the capacity to more than double the number of dentists we support within our existing markets alone. U.S. dental services market growth is projected at 4.9% annually according to the National Health Expenditures Data, Centers for Medicare & Medicaid Services (CMS). If we are able to grow at industry growth rates and succeed in our practice acquisition strategy, and absent other circumstances, we currently believe that we will double the size of dentists we support within a seven to 10-year timeframe.
We believe preventive, general and specialty dental care offer substantial opportunities for growth within our Metropolitan Statistical Areas (“MSA” as defined by the U.S. government through the U.S. Office of Management and Budget). This growth is driven by several factors, including increasing awareness of oral health’s connection to overall health, demographic shifts such as aging populations, and a growing demand for cosmetic and elective dental services. Additionally, as patient demand for specialized services such as oral surgery, endodontics, and prosthodontics increases, we are well-positioned to capture additional market share through strategic investments in specialist recruitment, training, and service delivery models.
We also intend to focus on expanding our presence primarily in medium and large MSAs. The U.S. Office of Management and Budget does not officially define medium and large MSAs. We consider medium MSAs as metropolitan areas having populations between 250,000 and 999,999, while large MSAs are metropolitan areas with populations of 1,000,000 or more. These MSAs align with our strategic priorities by offering potential expansion areas with favorable demographic trends, and an unmet need for accessible, high-quality dental care. Based on the 2024 data of the U.S. Census Bureau, Annual Estimates of the Resident Population for Metropolitan Statistical Areas in the United States and Puerto Rico: April 1, 2020 to July 2024, we estimate there are approximately 230 medium and large MSAs across the United States that meet our criteria. These markets closely align with our core competencies in supporting preventive and comprehensive dental services, fostering a model of care that emphasizes long-term patient relationships and community integration. We are targeting the expansion around our core MSAs today, as well as opportunistic acquisitions in selected national markets, however we are unable to determine where future acquisition opportunities may arise, the timing of any opportunities, and we are also unable to quantify or disclose the number of future MSAs that may be targeted.
•
Leveraging our scalable infrastructure to improve operating margins. We will continue to leverage our infrastructure and the local market presence of our affiliated dental practices to obtain favorable pricing from vendors and suppliers and to secure leases with attractive terms. We also plan to continue to streamline local practice administrative work, such as patient scheduling, billing, collections, payroll and accounting. We have built an infrastructure that supports organic and inorganic practice growth, which will allow us to further leverage our operating costs. In addition, our scalable and integrated information systems technology tracks daily operational and financial performance by practice so that we can identify and respond quickly to changes in specific markets and continue to improve administrative efficiency and productivity.
•
Selectively acquiring or affiliating with existing dental practices. We have a proven ability and intent to grow by entering into exclusive, long-term support agreements and asset-purchase agreements with existing dental practices. Our ability to identify, acquire, integrate and affiliate with independent practices in a cost-effective manner will be an important element in our continued growth and our geographic expansion into other states. We continually evaluate and selectively pursue strategic growth opportunities, as we believe there is significant demand for our patient-centric care model in communities across the country. We intend to enter new markets through acquisition and partnership opportunities where we are confident that we can employ our best practices and established model to grow our market share. By focusing primarily on medium and large MSAs, our disciplined growth
strategy ensures scalable, sustainable expansion while maintaining our commitment to supporting the delivery of high-quality care in a caring manner. This focus will enable us to address growing patient needs while solidifying our leadership in the dental services industry.
We will continue to follow a highly disciplined approach when evaluating growth opportunities.
Historical Revenue Growth
Revenues have grown by $130M over the past eleven years
Closed 40 Acquisitions(1) since 2014
(1)
Acquisitions transaction types include standalone, reverse roll-in, roll-in, patient list, and standalone acquisitions
Note: Amounts in millions except acquisitions
2023 Reorganization
In May 2023, our affiliated dental practice shareholders voted to reorganize the business support services of our affiliated dental practices into Park Dental Partners, Inc., a new type of DRO, owned by the dental practice shareholders. The combination of practices into a DRO created an operating structure which can enhance future growth by allowing the organization to raise additional capital beyond the existing practicing dentist shareholders. The reorganization operating structure became effective on October 1, 2023, and was structured as an IRC 355 and 368(a)(1)(D) spin-off reorganization. Park Dental Partners, Inc. was created as a corporation established in the State of Minnesota. Preceding the restructuring, effective September 29, 2023, PDG Northern Minnesota, PLLC (“NMN”), a provider of general dental care services in the Duluth, Minnesota area, was merged into PDG.
Shareholders ownership interests in our legacy entities, PDG, TDS and OSM, were converted into ownership in Park Dental Partners, Inc. via a contribution and exchange agreement, whereby Park Dental Partners, Inc. received certain assets in exchange for the transfer of ownership interests. Park Dental Partners, Inc. shareholders received a substantially pro-rata distribution of Park Dental Partners, Inc. stock based on their relative ownership interests in the legacy entities, and retained rights to historical deferred compensation balances associated with their prior shareholder arrangements practices. A single affiliated dentist retained ownership of each legacy entities which operate as affiliated practice. The ownership interest of each affiliated practice is subject to certain stock transfer restrictions.
Our practices operate through separate professional entities, each operating under a long-term contractual Administrative Resource Agreement arrangement with the DRO. Each affiliated professional entity is owned by a single affiliated dentist. A diagram of these post restructuring arrangements is displayed below:
(1)
DDS Advisor LLC is affiliated by common shareholders, as the members of DDS Advisor LLC must at a minimum, be both a practicing dentist of an affiliated dental practice, and a common shareholder of Park Dental Partners, Inc. DDS Advisor LLC was created by Park Dental Partners, Inc., however, it holds no direct equity interest in Park Dental Partners, Inc. and has no operations. See further discussion under Innovative Governance Model for Professional Voice, elsewhere in Prospectus.
(2)
DDS Advisor LLC has the right to appoint a minimum of three Directors to the Park Dental Partners, Inc. Board of Directors. See further discussion under Classified Board and Composition and Classified Board of Directors/Three Directors Appointed by Affiliated Entity elsewhere in this Prospectus.
(3)
Park Dental Partners, Inc. is the sole holder of equity in PDP MN, LLC. Park Dental Partners, Inc. has no equity interest in any affiliated dental practices, which are each solely owned by individual dentist shareholders as noted in the above diagram.
Effective October 1, 2023, each Administrative Resources Agreement established the DRO as the exclusive provider of non-clinical services to each practice — such as billing, collections, staffing, marketing, compliance, and facilities management — allowing the affiliated dental group to focus solely on delivering professional dental services.
Each administrative resource agreement ensures compliance with laws in certain states, including Minnesota, prohibiting the unlicensed practice of dentistry, and clearly delineates that all clinical decisions remain under the affiliated dental group’s control. Each agreement also includes detailed provisions on financial arrangements, including a management fee (based on a percentage of net collections), confidentiality, indemnification, and termination rights. The agreements are effective for 30 years with automatic five-year renewals, unless another termination date is mutually agreed upon. Each agreement also includes restrictive covenants and HIPAA compliance obligations. Loss of an affiliated dental practice or breach of an administrative resource agreement could also result in regulatory issues.
The long-term Administrative Resources Agreements under which we provide business support services, non-clinical personnel, and facilities and equipment to the affiliated dental practices, allows for the DRO to receive a management fee plus reimbursement of certain costs incurred by us in connection with fulfilling our responsibilities under these services agreements. Under the Administrative Resources Agreements, the affiliated dental group agrees to pay the DRO a monthly management service fee equal to approximately 15% – 18% of the affiliated dental group’s net collections. Net collections are defined as the actual cash receipts collected by the affiliated dental group, minus any patient or payor refunds, adjustments, and payments made to third-party collection agencies. The agreements also stipulate that the management fee will automatically increase by 5% annually unless both parties agree in writing to a different arrangement. As a result of our exclusive, long-term Administrative Resource Agreements with our affiliated dental practices, we have a variable interest and are the primary beneficiary in those affiliated dental practices. Accordingly, our consolidated financial results include the consolidated results of the affiliated dental practices in which we do not hold an equity interest. See further description under Note 16, Variable Interest
Entities, of the Consolidated Financial Statements presented elsewhere in this Prospectus. Termination of an administrative resource agreement could result in the deconsolidation of the affiliated practices.
Additionally, the affiliated dental practices are responsible for fully reimbursing the DRO, without any markup, for all costs, expenses, and liabilities incurred in connection with the services rendered under the agreement or related to the operation and maintenance of the affiliated dental group’s business.
Stock transfer restrictions exist between Park Dental Partners, Inc., the affiliated dental organization and the single designated doctor who is the sole holder of the equity of the respective affiliated dental practice. The restrictions ensure continuity and compliance with legal and operational standards. Transfers are only permitted under specific conditions, such as the single designated doctor’s death, disability, or disqualification, and must be made to a designated transferee approved by Park Dental Partners, Inc. The restrictions outline procedures for such transfers, including automatic resignation from company roles and payment terms. The agreement also includes provisions for arbitration, enforcement, and confidentiality, as governed by Minnesota law.
Risks Factors Summary
Our business is subject to a number of risks of which you should be aware before making an investment decision to purchase our shares of Common Stock. You should carefully consider all information set forth in this prospectus and, in particular, should evaluate specific factors set forth in the section titled “Risk Factors” in deciding whether to invest in our shares of Common Stock. Among these important risks are the following:
•
Our business model is impacted by general economic conditions, particularly in Minnesota where most of our affiliated dental practices are located. Our affiliated dental practices in Minnesota generated 99.0% and 98.9% of our revenue for the six months ended June 30, 2025 and 2024, respectively, and 98.9% and 98.7% of our revenue for the years ended December 31, 2024 and 2023, respectively.
•
We depend on our contractual arrangements with our affiliated dental practices and our success depends largely on our ability to provide effective business support services to our affiliated dental practices that result in increased revenues.
•
Our business is dependent on long-term arrangements with our affiliated dental practices for which we are the primary beneficiary. Termination and/or breach of an administrative resource agreement could result in a material adverse effect on our financial results, change the variable interest structure analysis and result in an inability to consolidate revenues or affiliated dental practices. It could also potentially result in regulatory issues.
•
Our profitability is also dependent upon the performance of our affiliated dental practices and dentists in areas we do not control, such as the delivery of patient care.
•
If our affiliated dental practices are unable to attract and retain qualified dentists, specialists and dental hygienists, their ability to attract and maintain patients and generate revenue could be negatively affected.
•
Our growth strategy depends on our ability to increase the number of locations in which our affiliated dental groups practice. Expansion involves many challenges, including selecting the appropriate site, attracting patients to the new locations, and attracting, training and retaining dental professionals to the new locations.
•
A portion of our growth and future financial performance depends on our ability to integrate acquired dental practices and the success of those acquisitions.
•
Our affiliated dental practices compete for patients in a highly competitive environment that may make it difficult to increase patient volumes and revenues.
•
We are reliant upon affiliated dentists and other personnel to practice within the scope of their profession and in accordance with professional standards and could be harmed by misconduct by our affiliated dentists and other personnel.
•
Our success is dependent on the dentists who provide patient care in the affiliated dental practices with whom we enter into administrative resources agreements, and we may have difficulty locating qualified dentists to replace affiliated dental practice owners.
•
Rising inflation and interest rates may result in an increased cost of dental services which could have a material adverse effect on our results of operations as many of our patients pay for dental services on an out of pocket basis.
•
A loss of the services of our key management team members could have a material adverse effect on our business.
•
Our business model depends on proprietary and third-party management information systems that we use to track financial and operating performance of affiliated dental practices, and any failure to successfully design and maintain these systems or implement new systems could materially harm our operations.
•
We are increasingly dependent on technology in our operations and, if our technology fails, our business could be adversely affected.
•
A cybersecurity incident, including a privacy breach, could negatively impact our business and our relationships with patients, personnel and suppliers and may lead to significant liabilities, including through litigation or regulatory action.
•
We may not be able to adequately protect our and our affiliated dental practices intellectual property, which could harm the value of our brand and adversely affect our business.
•
We or one of our affiliated dental practices could be found to have infringed on the intellectual property rights of others and may be subject to infringement claims.
•
We and our affiliated dental practices are subject to complex laws, rules and regulations, compliance with which may be costly and burdensome.
•
We along with our affiliated dental practices and their dentists may be subject to malpractice and other similar claims and may be unable to obtain or maintain adequate insurance against these claims.
•
Our revenue and that of our affiliated dental practices may be adversely affected by the actions of insurance providers and federal and state agencies, including downward reimbursement pressure from these entities.
•
Our affiliated dental practices rely on arrangements with, and payments from, third-party payors. The inability to collect payments from such payors and patients in the amounts anticipated (and in a timely manner) could impact the ability of our affiliated dental practices to pay our support fees and in turn could adversely impact our profitability.
•
Our business may be interrupted by litigation or regulatory action.
•
Covenants in our debt agreements may adversely affect our operations.
•
We may have substantial future capital requirements, and our ability to obtain additional funding is uncertain.
•
We cannot guarantee future financial performance based on our historical performance.
•
There has been no prior public market for our Common Stock and an active market may not develop or be maintained, which could limit your ability to sell shares of our Common Stock.
•
We expect that the price of our Common Stock will fluctuate significantly.
•
Future sales of our Common Stock, or the perception that such sales may occur, could depress our Common Stock price.
•
Investors in this offering will experience immediate and substantial dilution.
•
Our issuance of additional shares of Common Stock in connection with financings, acquisitions, investments, equity incentive plans, or otherwise will dilute all shareholders.
•
Our Common Stock does not control voting rights for all Board of Director positions. Our affiliated dentists control the right to appoint three Board of Director positions.
•
The obligations associated with being a public company will require significant resources and management attention, which may divert from our business operations.
•
Our senior management team has limited experience managing a public company.
•
If equity research analysts do not publish research or reports about our business or if they issue unfavorable commentary or downgrade our Common Stock, the price of our Common Stock could decline.
•
Our amended and restated bylaws contain, and our restated certificate of incorporation and Minnesota law contain, provisions that could discourage another company from acquiring us and may prevent attempts by our shareholders to replace or remove our current management.
Emerging Growth Company Status
We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act (the “JOBS Act”) enacted in April 2012. We intend to take advantage of certain exemptions under the JOBS Act from various public company reporting requirements, including not being required to have our internal control over financial reporting audited by our independent registered public accounting firm pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”), reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and any golden parachute payments not previously approved. In addition, we have in this prospectus taken and intend to continue to take advantage of certain reduced reporting obligations, including disclosing only two years of audited consolidated financial statements and only two years of related management’s discussion and analysis of financial condition and results of operations. We may take advantage of these exemptions until the earlier of the last day of the fiscal year following the fifth anniversary of the completion of this offering or the date we cease to be an “emerging growth company,” which will be the earliest of (i) the last day of the fiscal year in which we have more than $1.235 billion in annual revenue; (ii) the date we qualify as a “large accelerated filer;” and (iii) the date on which we have, during the previous three-year period, issued more than $1 billion in non-convertible debt securities.
In addition, the JOBS Act provides that an “emerging growth company” can take advantage of an extended transition period for complying with new or revised accounting standards. This provision allows an emerging growth company to delay the adoption of some accounting standards until those standards would otherwise apply to private companies. We have elected to use the extended transition period under the JOBS Act.
Accordingly, our consolidated financial statements may not be comparable to the financial statements of public companies that comply with such new or revised accounting standards.
Our Corporate Information
Our affiliated dental practices have been in operation since the founding of Park Dental in 1972. In May 2023, the owners of our affiliated dental practices established a dental resource organization 100% owned by dentists and management, through the creation of Park Dental Partners, Inc. and transitioned to the new operating structure on October 1, 2023. Park Dental Partners, Inc was incorporated in the state of Minnesota in 2023 to act as a dental resource organization for the operating affiliated dental practices. Our principal executive offices are located at 2200 Country Road C West, Suite 2210, Roseville, Minnesota 55113. The telephone number of our principal executive office is (651) 633-0500, and our main corporate website is www.parkdentalpartners.com. The information on, or that can be accessed through, our website is not part of this prospectus.
The Offering
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Common Stock outstanding prior to this offering (includes 869,313 restricted shares that will vest immediately upon completion of the offering)
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2,621,390 Shares
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Diluted Common Stock outstanding prior to this offering (includes 869,313 shares of restricted stock that will vest immediately upon completion of the offering and 2,607,938 shares of restricted stock that will vest within 12 quarters of the offering)
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5,229,328 Shares
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Common Stock offered
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Shares ( Shares if the underwriters exercise their over-allotment option in full)
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Common Stock to be outstanding after this offering
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Shares ( Shares if the underwriters exercise their over-allotment option in full)
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Diluted Common Stock to be outstanding after this offering (includes 869,313 shares of restricted stock that will vest immediately upon completion of the offering and 2,607,938 shares of restricted stock that will vest within 12 quarters of the offering)
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Shares ( Shares if the underwriters excercise their over allotment option in full)
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Use of proceeds
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We estimate that the net proceeds from this offering will be approximately $ million (approximately $ million if the underwriters exercises their over-allotment option in full) after deducting the underwriting discounts and commissions of approximately $ million and our estimated offering expenses of approximately $ million, which include legal, accounting, printing and other offering expenses. We intend to use the net proceeds from this offering primarily to grow our number of affiliates and dentists organically and inorganically and for working capital and general corporate purposes. See “Use of Proceeds.”
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Market symbol
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“PARK”
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Risk Factors
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You should carefully read and consider the information set forth under “Risk Factors” and all other information included in this prospectus for a discussion of factors that you should consider before deciding to invest in shares of our Common Stock.
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Directed Share Program
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At our request, the underwriters have reserved in aggregate up to % of our shares of common stock offered by this prospectus for sale, at the initial public offering price, to certain individuals, including our directors, executive officers and employees, to the extent permitted under applicable laws and regulations in the United States and in various countries. For additional information regarding the directed share program, please refer to section entitled “Underwriting — Directed Share Program.”
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Unless otherwise noted, the number of shares of Common Stock to be outstanding after this offering used in this prospectus is based on 2,621,390 shares outstanding as of June 30, 2025, after giving effect to the vesting of 869,313 shares of restricted stock, which will occur automatically immediately upon the completion of this offering, and excludes:
•
2,607,938 shares of Common Stock issuable upon the vesting of outstanding restricted stock that were issued under our 2023 Equity Incentive Plan and 2023 Restricted Stock Plan that will not automatically vest immediately upon the completion of this offering; and
•
shares of Common Stock available for issuance pursuant to our 2023 Equity Incentive Plan; and
•
shares of Common Stock issuable upon the exercise of the underwriters over-allotment option.
Except as otherwise indicated herein, all information in this prospectus assumes the following:
•
the automatic vesting of 869,313 shares of restricted Common Stock, which will occur automatically immediately upon the completion of this offering;
•
an initial public offering price of $ per share, the midpoint of the estimated price range set forth on the cover of this prospectus; and
•
no exercise of the (i) underwriters option to purchase up to an additional shares of Common Stock to cover allotments, if any or (ii) representative’s warrants to purchase shares of our Common stock at an exercise price per share equal to 120% of the initial public offering price per share or $ , based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, that will be issued to the representative of the underwriters in connection with this offering (the “Underwriting Warrant”).
Summary Consolidated Financial and Other Data
The following table sets forth our summary consolidated financial and other data for the six months ended June 30, 2025, and 2024, and the years ended December 31, 2024 and 2023, which were derived from our unaudited interim condensed consolidated financial statements and our audited consolidated financial statements respectively, included elsewhere in this prospectus. In addition, the table sets forth certain pro forma stock compensation expense, weighted average common stock, and basic and diluted earnings per share. The historical results presented below are not necessarily indicative of the results to be expected for any future period. You should read the following summary financial data together with the more detailed information contained in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and the related notes included elsewhere in this prospectus.
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Six Months Ended June,
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Years Ended December 31,
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(in thousands, except share and per share amounts)
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2025
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2024
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2024
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2023
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Revenue |
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$ |
122,035 |
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$ |
117,541 |
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$ |
229,794 |
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$ |
223,509 |
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Cost of Services
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Salaries and benefits
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72,733 |
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70,765 |
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140,741 |
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142,273 |
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Dental supplies and Laboratory fees
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8,576 |
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8,886 |
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17,093 |
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17,121 |
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Office occupancy
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8,090 |
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7,699 |
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15,519 |
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15,197 |
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Other practice expenses
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7,015 |
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6,772 |
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13,471 |
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13,285 |
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Depreciation
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3,859 |
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3,568 |
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7,291 |
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6,787 |
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Total Cost of Services
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100,273 |
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97,689 |
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194,115 |
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194,663 |
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Gross Margin
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21,762 |
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19,851 |
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35,679 |
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28,846 |
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General and administrative expenses
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14,308 |
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12,956 |
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25,470 |
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25,061 |
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Depreciation and amortization
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752 |
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769 |
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1,544 |
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1,508 |
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Operating income
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6,702 |
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6,127 |
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8,665 |
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2,277 |
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Interest expense
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(671) |
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(703) |
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(1,449) |
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(1,208) |
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Income before tax
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6,031 |
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5,424 |
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7,216 |
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1,069 |
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Provision/(benefit) for income tax
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1,894 |
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1,038 |
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2,853 |
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(3,820) |
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Net Income
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$ |
4,136 |
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$ |
4,386 |
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$ |
4,363 |
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$ |
4,889 |
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Earnings per share attributable to common shareholders:
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Basic
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$ |
2.33 |
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$ |
2.42 |
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$ |
2.42 |
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$ |
2.82 |
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Diluted
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$ |
2.33 |
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$ |
2.42 |
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$ |
2.42 |
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$ |
2.82 |
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Basic weighted-average number of common shares outstanding
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1,777,942 |
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1,813,667 |
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1,806,449 |
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1,735,979 |
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Diluted weighted-average number of common shares
outstanding
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1,777,942 |
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1,813,667 |
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1,806,449 |
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1,735,979 |
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Six Months Ended
June 30,
2025
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Years Ended December 31,
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(in thousands, except share and per share amounts)
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2024
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2023
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Net Income
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$ |
4,136 |
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$ |
4,363 |
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$ |
4,889 |
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Pro forma adjustment to reflect 2023 on full year C corporation equivalent tax basis(1)
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— |
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— |
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(1,810) |
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Pro forma adjustment to record stock-based compensation expense (net of tax benefit) related to restricted stock for which the service-based and performance-based vesting conditions will be satisfied in connection with this offering(2)
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(2,117) |
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(7,408) |
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— |
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Pro forma net income attributable to common shareholders’
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2,020 |
|
|
|
|
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(3,045) |
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3,079 |
|
|
|
Weighted-average shares used to compute net income per share attributable to common shareholders, basic and diluted
|
|
|
|
|
1,777,942 |
|
|
|
|
|
1,806,449 |
|
|
|
|
|
1,735,979 |
|
|
|
Pro forma adjustment to reflect the number of shares to be issued for restricted stock meeting vesting conditions upon completion of the offering(2)
|
|
|
|
|
434,656 |
|
|
|
|
|
1,521,297 |
|
|
|
|
|
— |
|
|
|
Pro forma adjustment to reflect the number of shares needed to be issued to pay the 2024 dividend in excess of earnings(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
Basic weighted-average number of common shares
outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,735,979 |
|
|
|
Basic Earnings per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1.77 |
|
|
(1)
The pro forma earnings per share attributable to shareholders for the year ended December 31, 2023, gives effect to the adjustment to reflect taxes on a full year C Corporation basis by excluding the tax benefit arising from the initial recognition of deferred tax assets and liabilities upon reorganization, and incorporating tax expense for the nine-month period from January 1, 2023 until October 2023 the reorganization at an assumed combined Federal and State effective tax rate of 28.7%. The entire calendar 2024 was subject to income tax as a C Corporation and accordingly no pro forma adjustment is required.
(2)
The pro forma earnings, and earnings per share attributable to shareholders for the year ended December 31, 2024 gives effect to the immediate vesting upon the completion of this offering totaling 869,313 outstanding restricted stock issued under our 2023 Equity Incentive Plan and 2023 Restricted Stock Plan and an aggregate 651,984 shares vested for the quarterly 6.25% of the remaining restricted stock, for the three subsequent calendar quarters of 2024. The pro forma net expense for the year ended December 31, 2024 of $7.4 million, was determined as the combined Federal and State rate tax effected product of the 1,521,297 shares at the average restricted stock grant price per share of $6.83. The pro forma earnings and earnings per share for the six month period ended June 30, 2025 of $2.1 million, was determined as the tax effected product of the quarterly vesting of 6.25% of outstanding Park Dental Partners, Inc, restricted stock, totaling 434,656 shares vesting at the average restricted stock grant price per share of $6.83.
(3)
The pro forma weighted average shares for the six months ended June 30, 2025, and year ended December 31, 2024 gives effect to the issuance of the notional incremental shares needed to be issued to pay the 2024 dividends deemed to be in excess earnings using the offering price. Determined by dividing the 2024 dividend amount by the initial public offering price of $ per share, which is the midpoint of the price range set forth on the front cover of this prospectus. This adjustment is in accordance with Staff Accounting Bulletin Topic 1.B,3 which requires that proforma basis and diluted earnings per share be presented giving effect to the number of shares whose proceeds would be used to replace capital when dividends exceed current year earnings.
| |
|
|
As of June 30,
|
|
|
(in thousands)
|
|
|
2025
|
|
|
Proforma
2025(1)
|
|
|
Proforma as
Adjusted(2)(3)
|
|
|
CONSOLIDATED BALANCE SHEET
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
|
|
$ |
2,892 |
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
|
|
13,499 |
|
|
|
|
|
|
|
|
|
|
|
|
Total non current assets
|
|
|
|
|
136,846 |
|
|
|
|
|
|
|
|
|
|
|
|
Total Assets
|
|
|
|
$ |
150,345 |
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Deficit
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current debt
|
|
|
|
|
1,915 |
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
|
|
31,034 |
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term liabilities
|
|
|
|
|
119,869 |
|
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities
|
|
|
|
|
150,903 |
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders’ Deficit
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders’ deficit
|
|
|
|
|
(558) |
|
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities and Shareholders’ Deficit
|
|
|
|
$ |
150,345 |
|
|
|
|
|
|
|
$ |
|
|
|
(1)
The pro forma balance sheet gives effect to the vesting of 869,313 shares of Park Dental Partners, Inc. restricted stock upon the completion of this offering.
(2)
The pro forma as adjusted balance sheet gives effect to the pro forma adjustments described in the preceding footnote 1 and the issuance and sale of shares of Common Stock in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. The adjusted balance sheet data assumes no exercise of the Underwriters over-allotment option.
(3)
Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase (decrease) as adjusted cash, working capital, total assets, and total equity by $ million, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. Similarly, each increase (decrease) of 100,000 shares in the number of shares offered by us at the assumed initial public offering price, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us would increase (decrease) as adjusted cash, working capital, total assets, and total equity by $ million. The adjusted information discussed above is illustrative only and will be adjusted based on the actual initial public offering price and other terms of our initial public offering determined at pricing.
Non-GAAP Financial Measures
In assessing the performance of our business, we consider a variety of financial measures that directly or indirectly impact our revenue and profitability. Certain Non-GAAP financial measures we use are set forth below, as of and for the six months ended June 30, 2025 and 2024.
| |
|
|
Six Months Ended June 30,
|
|
|
Increase /
(Decrease)
|
|
|
% Increase /
(Decrease)
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
Profitability Related Financial Measures:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted Gross Margin(1)(3)
|
|
|
|
$ |
25,985 |
|
|
|
|
$ |
23,837 |
|
|
|
|
$ |
2,147 |
|
|
|
|
|
9.0% |
|
|
|
Adjusted Gross Margin Percentage(1)(3)
|
|
|
|
|
21.3% |
|
|
|
|
|
20.3% |
|
|
|
|
|
1.0% |
|
|
|
|
|
5.0% |
|
|
|
Adjusted EBITDA(2)(3)
|
|
|
|
$ |
13,018 |
|
|
|
|
$ |
11,560 |
|
|
|
|
$ |
1,458 |
|
|
|
|
|
12.6% |
|
|
|
Adjusted EBITDA Percentage(2)(3)
|
|
|
|
|
10.7% |
|
|
|
|
|
9.8% |
|
|
|
|
|
0.8% |
|
|
|
|
|
8.5% |
|
|
(1)
The following table contains a reconciliation of our Gross Margin determined in accordance with GAAP to Adjusted Gross Margin:
|
(in thousands)
|
|
|
Six Months Ended
June 30,
|
|
| |
2025
|
|
|
2024
|
|
|
Gross Margin
|
|
|
|
|
21,762 |
|
|
|
|
|
19,851 |
|
|
|
Addback:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation
|
|
|
|
|
3,859 |
|
|
|
|
|
3,568 |
|
|
|
Restructuring costs
|
|
|
|
|
109 |
|
|
|
|
|
7 |
|
|
|
Non-qualified deferred compensation
|
|
|
|
|
255 |
|
|
|
|
|
411 |
|
|
|
Adjusted Gross Margin
|
|
|
|
|
25,985 |
|
|
|
|
|
23,837 |
|
|
|
Adjusted Gross Margin Percentage
|
|
|
|
|
21.1% |
|
|
|
|
|
20.1% |
|
|
(2)
The following table contains a reconciliation of our net income attributable to Park Dental Partners Inc. determined in accordance with GAAP to Adjusted EBITDA:
|
Net Income to Adjusted EBITDA
(in thousands)
|
|
|
Six Months Ended
June 30,
|
|
| |
2025
|
|
|
2024
|
|
|
Net income attributable to Park Dental Partners, Inc
|
|
|
|
|
4,136 |
|
|
|
|
|
4,386 |
|
|
|
Addback:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision (Benefit) for income taxes
|
|
|
|
|
1,894 |
|
|
|
|
|
1,038 |
|
|
|
Interest expense – net
|
|
|
|
|
671 |
|
|
|
|
|
703 |
|
|
|
Depreciation and amortization
|
|
|
|
|
4,611 |
|
|
|
|
|
4,337 |
|
|
|
Restructuring costs
|
|
|
|
|
1,376 |
|
|
|
|
|
157 |
|
|
|
Non-qualified deferred compensation
|
|
|
|
|
329 |
|
|
|
|
|
411 |
|
|
|
Share based compensation
|
|
|
|
|
— |
|
|
|
|
|
529 |
|
|
|
Adjusted EBITDA
|
|
|
|
|
13,018 |
|
|
|
|
|
11,560 |
|
|
|
Adjusted EBITDA Percentage
|
|
|
|
|
10.7% |
|
|
|
|
|
9.8% |
|
|
(3)
See “Non-GAAP Financial Measures” and “Non-GAAP Financial Measures Definitions” for further information and definitions related to Adjusted Gross Margin, Adjusted Gross Margin Percentage, Adjusted EBITDA and Adjusted EBITDA Percentage.
Certain Non-GAAP financial measures we use are set forth below, as of and for the years ended December 31, 2024 and 2023.
| |
|
|
Years Ended December 31
|
|
|
Increase /
(Decrease)
|
|
|
% Increase /
(Decrease)
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Profitability Related Financial Measures:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted Gross Margin(1)(3)(4)
|
|
|
|
$ |
44,008 |
|
|
|
|
$ |
43,066 |
|
|
|
|
$ |
942 |
|
|
|
|
|
2.2% |
|
|
|
Adjusted Gross Margin Percentage(1)(3)(4)
|
|
|
|
|
19.2% |
|
|
|
|
|
19.3% |
|
|
|
|
|
(0.1)% |
|
|
|
|
|
(0.5)% |
|
|
|
Adjusted EBITDA(2)(3)(4)
|
|
|
|
$ |
19,394 |
|
|
|
|
$ |
19,561 |
|
|
|
|
($ |
167) |
|
|
|
|
|
(0.9)% |
|
|
|
Adjusted EBITDA Percentage(2)(3)(4)
|
|
|
|
|
8.4% |
|
|
|
|
|
8.8% |
|
|
|
|
|
(0.4)% |
|
|
|
|
|
(4.5)% |
|
|
(1)
The following table contains a reconciliation of our Gross Margin determined in accordance with GAAP to Adjusted Gross Margin:
|
Gross Margin to Adjusted Gross Margin
(in thousands)
|
|
|
Years Ended December 31
|
|
| |
2024
|
|
|
2023
|
|
|
Gross Margin
|
|
|
|
$ |
35,679 |
|
|
|
|
$ |
28,846 |
|
|
|
Addback:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation
|
|
|
|
|
7,291 |
|
|
|
|
|
6,787 |
|
|
|
Restructuring costs
|
|
|
|
|
89 |
|
|
|
|
|
8 |
|
|
|
Non-qualified deferred compensation
|
|
|
|
|
949 |
|
|
|
|
|
1,063 |
|
|
|
Discretionary shareholder bonuses
|
|
|
|
|
— |
|
|
|
|
|
6,362 |
|
|
|
Adjusted Gross Margin
|
|
|
|
$ |
44,008 |
|
|
|
|
$ |
43,066 |
|
|
|
Adjusted Gross Margin Percentage
|
|
|
|
|
19.2% |
|
|
|
|
|
19.3% |
|
|
(2)
The following table contains a reconciliation of our net income attributable to Park Dental Partners Inc. determined in accordance with GAAP to Adjusted EBITDA:
|
Net Income to Adjusted EBITDA
(in thousands)
|
|
|
Years Ended December 31
|
|
| |
2024
|
|
|
2023
|
|
|
Net income attributable to Park Dental Partners, Inc.
|
|
|
|
$ |
4,363 |
|
|
|
|
$ |
4,889 |
|
|
|
Addback:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision (Benefit) for income taxes
|
|
|
|
|
2,853 |
|
|
|
|
|
(3,820) |
|
|
|
Interest expense – net
|
|
|
|
|
1,449 |
|
|
|
|
|
1,208 |
|
|
|
Depreciation and amortization
|
|
|
|
|
8,835 |
|
|
|
|
|
8,295 |
|
|
|
Restructuring costs
|
|
|
|
|
416 |
|
|
|
|
|
1,565 |
|
|
|
Non-qualified deferred compensation
|
|
|
|
|
949 |
|
|
|
|
|
1,063 |
|
|
|
Discretionary shareholder bonuses
|
|
|
|
|
— |
|
|
|
|
|
6,362 |
|
|
|
Share based compensation
|
|
|
|
|
529 |
|
|
|
|
|
— |
|
|
|
Adjusted EBITDA
|
|
|
|
$ |
19,394 |
|
|
|
|
$ |
19,561 |
|
|
|
Adjusted EBITDA Percentage
|
|
|
|
|
8.4% |
|
|
|
|
|
8.8% |
|
|
(3)
See “Non-GAAP Financial Measures” and “Non-GAAP Financial Measures Definitions” for further information and definitions related to Adjusted Gross Margin, Adjusted Gross Margin Percentage, Adjusted EBITDA and Adjusted EBITDA Percentage.
(4)
Discretionary shareholder bonuses were paid to shareholders during 2023 and prior periods as a method of returning excess profits to shareholders, in lieu of dividends from equity, and are not anticipated to form part of compensation subsequent to the offering. Shareholder distributions in 2024 were made using dividends from equity.
RISK FACTORS
Investing in our Common Stock involves a high degree of risk. You should carefully consider the following risk factors, as well as the other information in this prospectus, before deciding whether to invest in our Common Stock. If any of the following risks actually materialize, our business, financial condition and results of operations would suffer. The trading price of our Common Stock could decline as a result of any of these risks, and you might lose all or part of your investment in our Common Stock. You should read the section entitled “Forward-Looking Statements and Statistical Data and Market Information” immediately following these risk factors for a discussion of what types of statements are forward-looking statements, as well as the significance of such statements in the context of this prospectus.
Risks Related to Our Business
Our business model is impacted by general economic conditions, particularly in Minnesota where most of our affiliated dental practices are located.
Dental care patients tend to be price-sensitive because many pay for a significant portion of their dental expenses on an out-of-pocket basis. According to the Centers for Medicare and Medicaid Services, or CMS, consumer out-of-pocket expenditures accounted for 44% of payments for dental services in 2023, compared to 12% for other medical services. Consequently, dental care patients tend to base their selection of a dental practice on the affordability and quality of the dental service. Notwithstanding the fact that many dental expenditures arise out of necessity, the growth of our total revenue can be severely impacted with changes in consumer spending.
Most of our affiliated dental practices are located in Minnesota and the locations in that state generated 99.0% and 98.9% of our revenue for the six months ended June 30, 2025 and 2024, respectively, and 98.9% and 98.7% of our revenue for the years ended December 31, 2024 and 2023, respectively. Adverse changes or conditions affecting our markets in Minnesota, such as healthcare reforms, changes in laws and regulations, reduced Medicaid reimbursements and government investigations, may have a particularly significant impact on the business of our affiliated dentists and our business, financial condition and results of operations. Our current concentration in these markets, as well as our strategy of focused expansion in areas in and around our existing markets, increases the risk to us that adverse economic or regulatory developments in one or more of these markets may have a material and adverse impact on our operations.
We depend on contractual arrangements with our affiliated dental practices and our success depends largely on our ability to provide effective business support services to our affiliated dental practices and dentists that result in increased revenues.
State laws can prohibit entities owned by persons other than licensed dentists, including us, from practicing dentistry or from exercising control over the provision of professional dental services. Certain state laws also limit the ability of a person other than a licensed dentist or other regulated health professional to control or operate certain equipment used in a dental practice. We operate each of our practices in conjunction with a professional association or practice and we are party to long-term contractual arrangements with each professional association and the affiliated dentist who owns the shares of each professional association, pursuant to which our affiliated dental practices are operated.
Given the nature of these arrangements, we depend on the professional associations and their respective affiliated dentists to comply with the terms of these contractual arrangements. To the extent either a professional association or its affiliated dentist breaches any of the contractual provisions applicable to them or otherwise elects to terminate any of these contractual arrangements, our financial performance may be negatively impacted.
We receive fees for the support services provided to the dental practices under the administrative resources agreements. We own most of the non-dental operating assets of the practices but we do not employ or contract with dentists or control the provision of dental care in the affiliated dental practices, which exercise sole decision-making authority with respect to all clinical matters. Our revenue is dependent on the revenue generated by the affiliated dental practices. Therefore, effective and continued performance of dentists providing services for the practices is essential to our long-term success. Under each administrative
resource agreement, we pay substantially all the operating and non-operating expenses associated with the provision of dental services except for the salaries and benefits of the dentists. Any material loss of revenue by the practices would have a material adverse effect on our business, financial condition and operating results, and any termination of an administrative resource agreement (which is permitted in the event of a material default or bankruptcy by either party) could have such an effect. In the event of a breach of a management agreement by an affiliated dental practice, there can be no assurance that the legal remedies available to us would be adequate to compensate us for our damages resulting from such breach. Furthermore, state regulatory authorities may review the administrative resource agreements for legal and regulatory compliance. If an administrative resources agreement with an affiliated dental practice was deemed by a regulatory or judicial authority to be in violation of any law or regulation, our relationship with the applicable affiliated dental practice may terminate, the shares in the practice may need to be transferred, the administrative resources agreement may require material amendments with uncertain consequences or we might be required to restructure our business model.
Our business is dependent on long-term arrangements with our affiliated dental practices and termination of an administrative resource agreement would result in a material adverse effect on our financial results and potentially other negative consequences.
Our business is reliant on administrative resource agreements with our affiliated professional associations, which we do not own. Our ability to consolidate the financial results of the affiliated practices is predicated on the existence of these agreements and that we are the primary beneficiary of these variable interest entities. Given the nature of these arrangements, we depend on the professional associations and their respective affiliated dentists to comply with the terms of these contractual arrangements and not breach any of the contractual provisions applicable to them. As a result of our exclusive, long-term Administrative Resource Agreements with our affiliated dental practices, we have a variable interest and are the primary beneficiary in those variable interest entities. Accordingly, our consolidated financial results include the consolidated results of the affiliated dental practices in which we do not hold an equity interest. See further description under Note 16, Variable Interest Entities, of the Consolidated financial statements presented later in this document. Termination or breach of an administrative resource arrangement could result in a loss of our ability to consolidate revenues and financial results of the affiliated practices which would negatively impact our consolidated financial position. Termination or breach of an administrative resource agreement could also result in regulatory issues as a regulatory body or state agency may deny our practices the ability to continue to operate based on rules that preclude a non-dentist from owning, operating or managing a dental practice. Such an action by a regulator or state agency could prevent our ability to generate revenues.
Our success depends largely on our ability to provide effective business support services to our affiliated dental practices that result in increased revenues.
Our ability to continue to grow and improve profitability depends, to a significant extent, on our ability to provide quality and cost-effective business support services that enable our affiliated dental practices to increase their revenues. The affiliated dental practices rely on us to perform the non-clinical functions of their practice in order for their dentists, specialists and hygienists to spend more time with their patients. As a result, the success of our affiliated dental practices, and in turn our success, is dependent on our ability to provide effective support services that result in increased revenues, such as:
•
acquiring or affiliating with established dental practices in new markets;
•
determining where and when to build out and equip de novo practices or expand existing practices;
•
implementing cost-effective services such as marketing, facility management, supply chain management, operations support, and other administrative functions;
•
maintaining patient communication services that provide consistent, high quality patient service;
•
investing and providing integrated technology and information systems that support clinical operations
•
providing dental practice team members;
•
making available patient financing and alternative methods of payment;
•
supporting regulatory compliance for practicing dentists and team members; and
•
providing training and other continuing education resources to affiliated dentists and specialists.
If we do not provide support services that enable the affiliated dental practices to increase patient volumes, we will not be able to increase patient revenues and recognize operational efficiencies and cost savings across affiliated dental practices.
Our profitability is also dependent upon the performance of our affiliated dental practices and dentists in areas we do not control, such as the delivery of patient care.
Our profitability is dependent on the performance of our affiliated dental practices and dentists. In accordance with generally accepted accounting principles in the United States, we present our financial statements consolidated with our affiliated dental practices’ net assets and results of operations. Accordingly, our results of operations include the performance of our affiliated dental practices. However, we do not employ dentists and specialists and do not control the clinical decisions of any affiliated dental practice. Because the success of any dental practice will, to some extent, depend upon the efforts of the dentists and their professional skills and reputation, the success of our affiliated dental practices depends, in part, on factors outside of our control. While we seek to affiliate with dedicated, well-qualified dentists, we do not control their delivery of patient care. Our lack of control over all clinical aspects of the delivery of dental services by affiliated dental practices groups makes it more difficult for us to improve our performance. As a result, we do not control a key determinant of our success.
If our affiliated dental practices are unable to attract and retain qualified dentists, specialists, hygienists, and dental assistants, their ability to attract and maintain patients and generate revenue could be negatively affected.
The recruitment and retention of qualified dentists, specialists, such as orthodontists, oral surgeons, endodontists, periodontists, and pediatric dentists, hygienists, and dental assistants is a critical factor in the success of our affiliated dental practices. In addition, our affiliated dental practices must be able to recruit and retain new dentists, specialists, hygienists, and dental assistants for acquired and de novo practices. Our affiliated dental practices may experience decreased productivity in connection with any significant turnover.
Our affiliated dental practices have entered into employment agreements or independent contractor agreements with substantially all of their respective dentists and specialists, which agreements typically restrict the dentist’s or specialist’s solicitation of patients, staff and employees of the affiliated dental practice and may contain legacy non- competition provisions that prohibit the dentist or specialist from competing with the affiliated dental practices within a specified geographic area following such dentist’s or specialist’s termination. These non-competition covenants and other arrangements, however, may not be enforceable or may be significantly limited by the courts of the states in which we operate.
If our affiliated dental practices are unable to consistently attract, hire and retain qualified dentists, the ability of those affiliated dental groups to attract and maintain patients and generate revenue could be negatively affected.
We may be unable to successfully execute our growth strategy and, as a result, our business may be harmed.
Our success depends in part on our ability to build on our position through a balanced program of internal growth initiatives and selective acquisitions of established dental practices. If we cannot implement or effectively execute these initiatives and acquisitions, our business, financial condition, results of operations, cash flows and prospects will be adversely affected. Even if we effectively implement our growth strategy, we may not achieve the economies of scale that we have experienced in the past or that we anticipate having in the future. Our internal growth rate may decline and could become negative. Any reductions in the rate of our internal growth may cause our revenues and margins to decrease. Our historical growth rates and margins are not necessarily indicative of future results.
Our growth strategy depends on our ability to increase the number of dental locations in which our affiliated dentists practice. Expansion involves many challenges, including selecting or acquiring the appropriate site, attracting patients to the new locations, and attracting, training and retaining dental professionals to the new practices.
Our growth strategy, and a significant percentage of our projected future growth, depends on our ability to increase our revenue by increasing the number of dentists practicing in our affiliated dental groups practice. Acquiring new practices and opening de novo practices involves many challenges, including selecting or acquiring the appropriate site, attracting patients to the new locations, and attracting, training and retaining dental professionals to the new practices. In addition, we could experience delays or encounter unexpected problems in acquiring or opening de novo practices. Any one of these events could result in us not realizing the growth we anticipate, which could result in a decline in our profitability.
In addition, expanding existing practices and opening of de novo practices requires substantial time and resources from us. We have used, and expect to continue to use, a significant portion of our capital resources to expand. We expect future expansion will be funded from internally generated cash flows, amounts available under our revolving and term loan facilities and the proceeds of future equity or debt offerings or refinancings. Our ability to expand existing practices may be impaired if we are unable to obtain funding from these capital sources when needed and on terms acceptable to us. Our expansion strategy also requires substantial management time which may result in disruption to our existing business operations. Our inability to successfully address these challenges may adversely affect the profitability of our business operations as we pursue our growth strategy.
Our affiliated dental practices compete for patients in a highly competitive environment that may make it more difficult to increase patient volumes and revenues.
The business of providing dental services is highly competitive in each of the markets in which our affiliated dental practices operate. The primary basis of such competition are quality of care and reputation, marketing and advertising strategy and implementation, convenience, traffic flow and visibility of practice locations, relationships with third-party payors, price of services and hours of operation. Our affiliated dental practices compete with all other dentists in their local market. Many of those dentists have established practices and reputations in their markets. In addition, a number of other dental support organizations are currently operating in our markets and in other parts of the country that may enter our existing markets in the future. Some of these competitors and potential competitors may have financial resources, affiliation models, reputations or management expertise that provide them competitive advantages against us, which may make it difficult to compete against them.
We depend on our ability to attract and retain dental and other health care professionals.
We depend on our ability to attract and retain qualified and skilled dentists and other personnel, including dental hygienists, dental assistants, and administrative staff. To that end, we routinely expend resources to promote our employer brand on university campuses, at industry events, on social media, and through other traditional job platforms. However, the market for talent is becoming increasingly competitive. Our affiliated dental practices’ ability to identify, hire, develop, motivate and retain qualified personnel will directly affect our ability to maintain and grow our business, and such efforts will require significant time, expense and attention. Turnover of dentists and other personnel could negatively impact patients and result in a loss of business or less frequent visits to the affiliated dental practices in our affiliate network. If our affiliated dental practices are unable to attract and retain dentists and other personnel at the same rate and on the same terms as we have historically, our reputation, business, financial condition and growth strategy may be materially adversely affected.
We are reliant upon affiliated dentists and other personnel to practice within the scope of their profession and in accordance with professional standards and could be harmed by misconduct by our affiliated dentists and other personnel.
While our affiliated dentists have significant continuing education obligations and while we and our affiliated dental practices also provide additional training on a variety of services to our affiliated dentists and personnel as appropriate, we cannot be assured that this training is sufficient to address all potential issues
that our affiliated dentists or other personnel may encounter while providing services to patients. In addition, our affiliated dentists and other personnel contractually agree to only provide services within the scope of their applicable profession and in accordance with professional standards and that they only hold themselves out as having the qualifications and designations applicable to them; however, it may be the case that an affiliated dentist or member of personnel breaches these obligations and we cannot be assured that all affiliated dentists or personnel will comply with the restrictions and limitations applicable to their scope of practice or our policies and procedures. In addition, while our affiliated dentists are trained members of their applicable governing body of dentists, these individuals must use their independent discretion to practice dentistry, and we do not have the ability to control actions or omissions of the affiliated dentists and any failure by an individual to practice his or her profession in accordance with applicable laws and the policies, guidance and requirements of the dental regulatory bodies could cause harm to patients and expose us to reputational damage or litigation and have a material adverse effect on our reputation, business, financial condition, results of operations, cash flows and prospects.
Our success is dependent on the dentists who operate the affiliated dental practices with whom we enter into administrative resources agreements, and we may have difficulty locating qualified dentists to replace affiliated dental practice owners.
Affiliated dental practices are operated as separate legal entities organized under state laws as professional associations or professional limited liability companies. Each entity operates an affiliated dental practice that employs or contracts with dentists and specialists in one or more locations. Each of the affiliated dental practices is wholly owned by one or more licensed dentists, the entity owner, and we do not own any capital stock of any entity. We enter into service agreements with an entity to provide on an exclusive basis all non-clinical services of the dental practice. The entity owner is critical to the success of affiliated dental practices because he or she has control of all clinical aspects of the practice of dentistry and the provision of dental services.
Under our arrangements with the owners of affiliated practice entities, the entity owners are prohibited from selling, transferring, pledging or assigning the stock of the entity to a third party without our consent. In addition, we can require the entity owner to sell his or her interest in the entity to any person designated by us that is permitted to hold an ownership interest in the entity. However, upon the departure of an entity owner, we may not be able to locate one or more suitably qualified licensed dentists to hold the ownership interest in the entity and maintain the success of the departing entity owner. Also, a court may decide not to enforce these transfer restrictions in a given situation. Dr. Christopher Steele and Dr. Alan Law, who are both members of our Board of Directors, and have been associated with the Park Dental organization since 1991 and 1996, respectively, are owners and control affiliated dental practices that provide dental services at the dental locations that comprise 100% of our total revenue. Adequate succession planning for the departure of entity owners is important to maintain our successful operations.
Rising inflation and interest rates may result in an increased cost of dental services which could have a material adverse effect on our results of operations as many of our patients pay for dental services on an out of pocket basis.
An inflationary environment and rising interest rates can increase our operating costs including the cost of labor and other operating costs, which could result in increased cost of our dental services. Since many of our dental care patients pay for a significant portion of their dental expenses on an out-of-pocket basis, many patients tend to be price-sensitive, and our business and industry can be impacted by economic conditions. Adverse changes in economic conditions could, in turn, have a material adverse effect on our business and operating results.
A loss of the services of our key management team members could have a material adverse effect on our business.
Our continued success depends upon the retention of our senior officers, in particular Peter G. Swenson and Christopher J. Bernander, who have been instrumental in our success and upon our ability to attract and retain other highly qualified individuals. The loss of some of our senior officers, or an inability to
attract or retain other key individuals, could materially adversely affect us. Continued growth and success in our business depends, to a large degree, on our ability to retain and attract such officers and employees.
Risks Related to Information Technology, Cybersecurity and Intellectual Property
Our business model depends on proprietary and third-party management information systems that we use to track financial and operating performance of affiliated dental practices, and any failure to successfully design and maintain these systems or implement new systems could materially harm our operations.
We depend on integrated management information systems, some of which are provided by third parties, and standardized procedures for operational and financial information, as well as for patient records, patient financing and our billing operations. We may experience unanticipated delays, complications, data breaches or expenses in implementing, integrating, and operating our systems. Our technology and information systems regularly require modifications, improvements or replacements that may require both substantial expenditures as well as interruptions in operations. Our ability to implement these systems is subject to the availability of skilled information technology specialists to assist us in creating, implementing and supporting these systems. Our failure to successfully design, implement and maintain all of our systems could have a material adverse effect on our business, financial condition and results of operations.
Further, we rely on our systems to bill for services provided by affiliated dentists and specialists in accordance with the terms of third-party payor agreements. Our systems must be designed to accurately bill for services consistent with the requirements of third-party payors. Our failure to successfully operate our billing system could lead to potential violations of third-party payor agreements and healthcare laws and regulations.
We are increasingly dependent on technology in our operations and, if our technology fails, our business could be adversely affected.
Our business is dependent on information systems for operational processes and financial information. Our information systems could be vulnerable to damage or interruption from computer viruses, cyber-attacks, ransomware attacks, human error, natural disasters, telecommunications failures, intentional acts of vandalism and similar events. A significant or prolonged interruption to our information systems could have a material adverse effect on our business, financial condition and results of operations.
In addition, we use technology platforms to attract new patients into our network, communicate with all new and existing patients, enhance frequency of visits, improve retention, and provide patients with a place for all of their comprehensive oral care needs. While some of these technologies are relatively new, and while we are encouraged by their impact on our business to date, there can be no assurance that we will realize, in full or in part, the anticipated benefits of these platforms.
We rely on third-party licensed software, which may not always be available to us or properly supported and maintained and could adversely affect our business.
We and our affiliated dental practices utilize third-party licensed software. We and our affiliated dental practices anticipate that they will continue to rely on third-party licensed software in the future. Although we and our affiliated dental practices believe that there are commercially reasonable alternatives to the third-party software they currently license, this may not always be the case, or it may be difficult or costly to replace. In addition, integration of new third-party software may require significant work and require substantial investment of our and our affiliated dental practices’ time and resources and adversely affect our and our affiliated dental practices business prospects and ability to compete.
Additionally, any undetected errors or defects in third-party licensed software could prevent the deployment or impair the functionality of our and our affiliated dental practices’ software, delay new updates or enhancements to our and our affiliated dental practices’ platform, result in a failure of our affiliated dental practices’ platform, present security risks, subject us to liability and injure our reputation.
A cybersecurity incident, including a privacy breach, could negatively impact our business and our affiliated dental practices’ relationships with patients, personnel and suppliers and may lead to us incurring significant liabilities, including through litigation or regulatory action.
We and our affiliated dental practices routinely collect, use, disclose, access and store confidential health, financial and other personal information of patients in connection with the operation of our and our affiliated dental practices’ business. We also collect, use, disclose, and maintain personal information of affiliated dentists, other personnel, and contractors. We and our affiliated dental practices have installed privacy protection systems on our network in an attempt to prevent unauthorized access to information in our database. However, we have experienced a security breach in the past and our technology may fail to adequately secure the personal information that we and our affiliated dental practices maintain in their databases.
Additionally, we use third-party service providers to help deliver services to patients. These service providers may have access to or store personal information (including sensitive information such as personal health information and credit card information) and/or other confidential information on our behalf. As a result, such third parties may obtain unauthorized access to the personal information of our patients. This information could be exposed through human error, malfeasance or otherwise.
The unauthorized release, unauthorized access or compromise of personal information in our or our affiliated dental practice’s custody or control could have a material adverse effect on our financial condition, results of operations, cash flows and prospects and could negatively affect our reputation and business.
We and our affiliated dental practices are also subject to federal and state laws regarding cybersecurity, privacy and the protection of data, including state health privacy legislation. We and our affiliated dental practices are subject to laws that require us to notify governmental authorities, regulatory authorities, individuals and/or other organizations of certain data security breaches, such as those involving certain types of personal information. Additionally, we and our affiliated dental practices are required to use reasonable measures to safeguard personal information.
The regulatory framework in the United States in respect of cybersecurity and the protection of data and privacy is constantly evolving and is likely to remain uncertain for the foreseeable future. Certain aspects of the interpretation and application of such laws and regulations are also ambiguous. A failure by us or an affiliated dental practice to comply with federal and state laws regarding privacy and protection of data, as applicable, could lead to significant fines and penalties imposed by regulators, legal claims by our patients and other persons, and highly adverse publicity. These proceedings or violations could force us or an affiliated dental practice to spend money in defense or settlement of such proceedings, result in the imposition of monetary liability, divert management’s time and attention, increase our or an affiliated dental practice’s cost of doing business, and adversely affect our or an affiliated dental practice’s reputation and the demand for our affiliated dental practices’ products and services. We also cannot be sure that our existing insurance coverage will continue to be available on acceptable terms or will be available in sufficient amounts to cover one or more large claims, or that our insurers will not deny coverage as to any future claim. The successful assertion of one or more large claims against us that exceeds our available insurance coverage, or changes in our insurance policies, including premium increases or the imposition of large deductible or co-insurance requirements, could have an adverse effect on our business, financial condition, results of operations, cash flows and prospects.
On January 23, 2024, we became aware of unauthorized activity for a limited number of employee email accounts. In response, we immediately took steps to secure the email accounts, with the assistance of third-party cyber security specialists, we undertook an investigation into the nature and scope of the event. Our investigation identified there was unauthorized access to a limited number of employee email accounts between January 11 and January 23, 2024, during which an unauthorized actor potentially viewed or accessed certain information stored within the email accounts and/or related file shares. We worked with third-party specialists to conduct a thorough review of the potentially impacted files to determine whether they may contain personal information and to whom it related. It was determined that certain patient’s personal information may have been impacted. Upon discovering this event, we promptly took steps to investigate the incident, assess the security of our systems, and notify potentially affected individuals. As part of our ongoing commitment to the privacy of personal information in our care, while we have safeguards in place to
protect data in our care, we are working to review and further enhance these protections as part of our ongoing commitment to data security. We reported this event to government regulators where required. The litigation related to these events is in its early stages and thus it is inherently unpredictable. However, the results of any such actions could have a material adverse effect on our business, financial condition, results of operations, cash flows or prospects.
We may not be able to adequately protect our and our affiliated dental practices intellectual property, which could harm the value of our brand and adversely affect our business.
Our ability to implement our business plan successfully depends in part on our and our affiliated dental practices’ ability to further build brand recognition using our trademarks, service marks and other proprietary intellectual property, including our name and logos. While it is our policy to protect and defend vigorously our rights to our intellectual property, we cannot predict whether steps taken by us to protect our intellectual property rights will be adequate to prevent infringement or misappropriation of these rights. Any litigation to enforce our rights could be costly, divert attention of management, and may not be successful. Although we believe that we have sufficient rights to all of our and our affiliated dental practices’ trademarks, service marks and other intellectual property rights, we may face claims of infringement that could interfere with our ability to market and promote our brand. Any such litigation may be costly and divert resources from our business. Moreover, if we are unable to successfully defend against such claims, we may be prevented from using our and our affiliated dental practices’ trademarks, service marks or other intellectual property rights in the future and may be liable for damages, which in turn could adversely affect our business, financial condition or results of operations.
We or one of our affiliated dental practices could be found to have infringed on the intellectual property rights of others and may be subject to infringement claims.
Although we and our affiliated dental practices believe that the third-party software utilized is licensed from the entity holding the intellectual property rights and that their products and services do not infringe on the rights of third parties, third parties may assert infringement claims against us or our affiliated dental practices in the future. As we and our affiliated dental practices continue to employ proprietary and third-party technology platforms and use new technology, the exposure to threats of infringement may increase.
Regardless of whether any potential infringement claims against us or our affiliated dental practices have any merit, such claims could:
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adversely affect our and our affiliated dental practices relationships with patients;
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be time-consuming and expensive to evaluate and defend, including in litigation or other proceedings;
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result in negative publicity for us or our affiliated dental practices;
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divert management’s attention and resources;
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subject us to significant liabilities; and
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require us or our affiliated dental practices to cease certain activities or to cease use of our technology platforms.
Any of the foregoing infringement claims and related litigation could have a material adverse effect on our business, operating results, ability to compete, and prospects.
Our inability or failure to protect our intellectual property could have a negative impact on our operating results.
We or our affiliated dental practices are the registered owner, or have filed for registration, of various marks in the United States that we currently use and consider to be material to the successful operation of our affiliated businesses, including PARK DENTAL PARTNERS™, PARK DENTAL®, WITH YOU EVERY SMILE OF THE WAY™, our Park Dental logo “P” design, and our Parker mascot. In addition to our registered marks and pending applications, our principal intellectual property rights include rights to our domain names, databases and information management systems. The steps we take to protect our
proprietary rights may be inadequate. Our trademark applications may not be granted, and we may not be able to secure the right to use the filed for marks. Our competitors or others may adopt trademarks or service marks similar to our marks or try to prevent us from using our marks because laws protecting trademarks and similar proprietary rights are unclear. Therefore, we may be unable to prevent third parties from acquiring trademarks or service marks that are similar to, infringe upon or otherwise decrease the value of our trademarks and other proprietary rights. If we are unable to protect or preserve the value of our trademarks, or other proprietary rights for any reason, our brand and reputation could be impaired or diluted and we may see a decline in revenues.
Events or rumors relating to our brand names could significantly impact our business.
Recognition of our brand names, including Park Dental, The Dental Specialists, The Facial Pain Group, Apollo Dental, Greenview Family Dentistry, Braveland Dental, Forbes Dental Care, and Central Minnesota Endodontics and the association of those brands with quality, comprehensive dental care are an integral part of our business. The occurrence of any events or rumors that cause patients to no longer associate the brands with quality, comprehensive dental care may materially adversely affect the value of the brand names and demand for dental services at our affiliated dental groups.
Risks Related to Government Regulation, Reimbursement/Third Party Payors and Litigation
We and our affiliated dental practices are subject to complex laws, rules and regulations, compliance with which may be costly and burdensome.
The affiliated dental practices and we are subject to extensive federal, state and local laws, rules and regulations, including:
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state regulations on the practice of dentistry;
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the Health Insurance Portability and Accountability Act of 1996, or HIPAA, and other federal and state laws governing the collection, dissemination, use, security and confidentiality of patient-identifiable health and financial information;
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federal and state regulations, such as Medicare and Medicaid, and anti-kickback provisions and restrictions on referrals;
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the federal Fair Debt Collection Practices Act and similar state laws that restrict the methods that we and third-party collection companies may use to contact and seek payment from patients regarding past due accounts;
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the Occupational Safety and Health Administration Bloodborne Pathogens Standard, which requires affiliated dental groups to institute training programs and procedures designed to eliminate or minimize occupational exposure to Hepatitis B Virus (HBV), Human Immunodeficiency Virus (HIV) and other bloodborne pathogens;
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state and federal labor laws including wage and hour laws.
Many of the above laws, rules and regulations applicable to us and our affiliated dental practices are ambiguous, have not been definitively interpreted by courts or regulatory authorities and vary from jurisdiction to jurisdiction. Accordingly, we may not be able to predict how these laws and regulations will be interpreted or applied by courts and regulatory authorities, and some of our activities could be challenged. In addition, we must consistently monitor changes in the laws and regulatory schemes that govern our operations. For example, numerous legislative proposals to reform the U.S. health care system have been introduced in Congress and in various state legislatures recently and over the past several years. We cannot predict whether any of these proposals will be adopted and, if adopted, what impact this legislation would have on our business. Although we have tried to structure our business and contractual relationships in compliance with these laws, rules and regulations in all material respects, if any aspect of our operations was found to violate applicable laws, rules or regulations, we could be subject to significant fines or other penalties, required to cease operations in a particular jurisdiction, prevented from commencing operations in a particular state or otherwise be required to revise the structure of our business or legal arrangements. Our
efforts to comply with these laws, rules and regulations may impose significant costs and burdens, and failure to comply with these laws, rules and regulations may result in fines or other charges being imposed on us.
We along with our affiliated dental practices and their dentists may be subject to malpractice and other similar claims and may be unable to obtain or maintain adequate insurance against these claims.
The provision of dental services by dentists entails an inherent risk of potential malpractice and other similar claims. Although we do not have responsibility for compliance by affiliated dental practices and their dentists with regulatory and other requirements directly applicable to dentists and dental groups, claims, suits or complaints relating to services provided at the offices of our affiliated dental groups may be asserted against us. The assertion or outcome of these claims could result in higher administrative and legal expenses, including settlement costs or litigation damages. Our current standard insurance policy provides coverage limits of $2.0 million per occurrence and $3.0 million annual aggregate. For dental specialists and general dentists providing sedation services, the policy includes higher coverage limits of $5.0 million per occurrence and $7.0 million annual aggregate. Under this professional liability insurance policy, we arrange and are reimbursed for the cost of the professional liability insurance for our affiliated dental practices and most of their employed or contracted dentists. Our inability to obtain adequate insurance or an increase in the future cost of insurance to us and the dentists and specialists who provide dental services or an increase in the amount we must self-insure may have a material adverse effect on our business and financial results.
Our revenue and that of our affiliated dental practices may be adversely affected by the actions of insurance providers and federal and state agencies, including downward reimbursement pressure from these entities.
Approximately 92% and 93% of our total revenues for each of the six months ended June 30, 2025, and 2024, and approximately 93% of our total revenues for each of the years ended December 31, 2024 and 2023, were derived from patients with indemnity and preferred provider plans and government plans. The health care services industry, including the dental services market, is experiencing a trend toward cost containment, as third-party payors seek to impose lower reimbursement rates and sometimes decide not to renew their agreements with dental providers. We believe that this trend will continue and will increasingly affect the compensation for dental services. Insurance providers are continually negotiating the fees reimbursed for dental care, with a goal of containing reimbursement and utilization rates. This may result in a reduction in per-patient and per-procedure revenue from historic levels.
States in which we operate and the federal government may also change the benefits they provide to dental patients. Approximately 21% and 17% of total revenues for the six months ended June 30, 2025, and 2024, and approximately 17% and 15% of total revenues for the years ended December 31, 2024 and 2023, respectively, were derived from patients with government-sponsored plans including Medicare and Medicaid. Changes in Medicaid programs affecting provider eligibility, reimbursement rates or specific dental procedures eligible for reimbursement, or an affiliated dental practices’ failure to maintain its authorization as a provider under these programs, or to comply with applicable state and federal law or its contracts with the insurance providers who administer claims and make payments under these programs, could have a significant adverse impact on revenues generated by affiliated dental practices which may adversely impact our revenues.
Our affiliated dental practices rely on arrangements with, and payments from, third-party payors. The inability to collect from such payors and patients in the amount anticipated (and in a timely manner) could impact the ability of our affiliated dental practices to pay our service fees and in turn could adversely impact our profitability.
Our affiliated dental practices derive significant revenue from third party payors. One third-party payor constituted 27% and 28% of our revenues for the six months ended June 30, 2025, and 2024, respectively, and 32% and 33% of our revenues for the years ended December 31, 2024 and 2023, respectively. There is no assurance that our affiliated dental practices will be able to maintain the arrangements we currently have with third party payors in the amounts or percentages currently in place or as projected. In addition, delays in payment or audits leading to refunds to payors or termination of such relationships may impact the ability of an affiliated dental practice to pay our service fees. Furthermore, many patients, including those
covered by insurance, pay for all or a significant portion of the dental services they receive out-of-pocket. Our affiliated dental practices will bear the financial risk relating to uncollectible, reduced or delayed payments and adverse results could result if our affiliated dental practices are unable to pay our service fees timely and in full. During periods of economic downturn, our affiliated dental practices may experience an increase in the time it takes to collect payments.
In addition, reimbursements from governmental healthcare programs may be delayed if affiliated dentists and specialists have not been properly enrolled in governmental healthcare programs, such as Medicare and Medicaid. Each time a new dentist or specialist joins an affiliated dental practice, the affiliated dental practice must enroll the dentist under its applicable group number for Medicare or Medicaid programs and for certain insurance programs before the affiliated dental practice can receive reimbursement for services the dentist renders to patients covered by those programs. The estimated time to receive approval for the enrollment is sometimes difficult to predict and, in recent years, the Medicare program carriers often have not issued these approvals to affiliated dentists in a timely manner. These practices result in delayed reimbursement that may adversely affect the affiliated dental practice and our cash flow and total revenues.
Our revenue may be negatively impacted by the failure of affiliated dental practices to appropriately document services they provide.
We rely upon affiliated dental practices to appropriately and accurately complete necessary dental record documentation and assign appropriate reimbursement codes for their services. Reimbursement is conditioned on affiliated dental practices providing the correct procedure and diagnosis codes and properly documenting the services themselves, including the level of service provided and the necessity for the services. If affiliated dental practices provide incorrect or incomplete documentation or select inaccurate reimbursement codes, this could result in nonpayment for services rendered or lead to allegations of billing fraud. This could subsequently lead to civil and criminal penalties, including exclusion from government healthcare programs, such as Medicare and Medicaid. In addition, third party payors may disallow, in whole or in part, requests for reimbursement based on determinations that certain amounts are not covered, services provided were not necessary, or supporting documentation was not adequate. Retroactive adjustments may change amounts realized from third party payors and result in recoupments or refund demands, affecting revenue already received.
Our business may be interrupted by litigation or regulatory action.
We or an affiliated dentist or dental group may become involved in various legal proceedings, including commercial disputes, intellectual property issues, employment claims, personal injury claims and other litigation and claims, as well as governmental and other regulatory investigations and proceedings. Such matters can be time-consuming, divert management or our affiliated dentists’ attention and resources and cause us or a dental practice in our network to incur significant expenses. In addition, our insurance or indemnities or those of the practices in our network may not cover all claims that may be asserted against us or an affiliated dental practice, and any claims asserted against us or such dental practices, regardless of merit or eventual outcome, may harm our or such practices’ reputation. Furthermore, because litigation is inherently unpredictable, the results of any such actions may have a material adverse effect on our business, financial condition, results of operations, cash flows or prospects.
Changes to U.S. trade policy, tariff and import/export regulations could affect our operating results.
Tariffs, and the possibility of additional tariffs in the future, have created uncertainty in most all businesses. Changes to existing or future tariffs or other trade restrictions may negatively affect our price of dental supplies which could reduce our gross profits, or could increase the cost to maintain appropriate level of investment in capital expenditures. Such outcomes could adversely affect the amount or timing, results of operations or cash flows, and continuing uncertainty could cause price fluctuations or supply shortages or cause our patients to advance or delay their dental needs. It is difficult to predict what further trade-related actions governments may take, which may include additional or increased tariffs and trade restrictions, and we may be unable to quickly and effectively react to such actions.
Risks Related to Our Financial Condition and Indebtedness
Our operating results are subject to seasonal variability.
We have historically experienced and expect to continue to experience quarterly fluctuations in revenue and net income. Absent the impact and timing of acquisitions, our total revenues have historically been lower in the third quarter of the year due to fluctuations in patient volumes, which are primarily impacted by the timing of holidays and the school year calendar. As a result of the fluctuations caused by these factors and due to the timing of any acquisition, our results of operations for any quarter are not necessarily indicative of results of operations for any future period or full year.
Covenants in our debt agreements may adversely affect our operations.
Our credit facilities contain customary financial and negative covenants that, among other things, limit our ability to incur and pay certain indebtedness; to create, incur, or assume certain liens and negative pledges; to sell, lease, convey, transfer or otherwise dispose of certain assets; to merge or consolidate with or into another; to liquidate or dissolve any of our subsidiaries; to make certain loans and investments; to make certain dividends and redemptions; to substantially change the nature of our business; and to enter into or amend certain agreements. We are also required to comply with limitations on our capital expenditures and comply with certain financial ratios, including a leverage ratio and fixed charge coverage ratio. Our ability to comply with these covenants or meet those financial ratios can be affected by events beyond our control, and we cannot assure you that we will meet them.
Upon the occurrence of an event of default under our credit facilities, lenders could elect to declare all amounts outstanding under our credit facilities to be immediately due and payable and terminate all commitments to extend further credit. Further, the lenders under our credit facilities could proceed against the collateral granted to them to secure that indebtedness, which represents substantially all of our assets. If any of the lenders under our credit facilities accelerate the repayment of borrowings, we may not have sufficient cash flow or assets to repay our credit facilities and other indebtedness or have the ability to borrow sufficient funds to refinance such indebtedness. Even if we are able to obtain new financing, it may not be on commercially reasonable terms or terms that are acceptable to us.
Certain of our current financing arrangements include significant prepayment obligations and our current financing arrangements require compliance with financial and other covenants. A failure to comply with such covenants could adversely affect our ability to operate.
The terms of our various credit agreements and other financing documents require us to comply with a number of customary financial and other covenants, such as maintaining debt service coverage and leverage ratios and adequate insurance coverage. In addition, our $2.2 million promissory notes payable include prepayment approval by both parties which likely will prevent prepayment and result in us having to pay interest on such obligations at rates exceeding 28% per annum until maturity in October 2037. These covenants and provisions may limit our flexibility in conducting our operations and breaches of loan covenants could result in defaults under the instruments governing the applicable indebtedness, even if we have satisfied and continue to satisfy our payment obligations. Regulatory and market changes may also result in higher borrowing costs and reduced access to credit.
We may have substantial future capital requirements, and our ability to obtain additional funding is uncertain.
Our capital needs depend on many factors, including the rate of acquiring and expanding dental practices, technological advances that require new clinical equipment or technology, such as digital imaging, and the replacement and enhancement of management information systems and related technology needs and requirements.
Because our growth strategy depends on expansion, we will need additional capital resources to expand our business. While the cost of any acquisition or additional practices will vary based on size and region, we estimate that the average acquisition of new practices will cost approximately $1 – 2 million as we anticipate future acquisitions to be larger than our average historical acquisitions. Additional factors can unexpectedly increase the costs of acquiring and expanding practices. Also, we generally incur significant advertising
and marketing expenditures to attract patients during the first year of new or expanded operations. The expenses involved in acquiring, developing and establishing new practices and in supporting them could consume a significant portion of our cash flow.
We may not have adequate resources to finance the growth in our business and we may not be able to obtain additional capital through subsequent equity or debt financings on terms acceptable to us or at all. If we do not have adequate resources and cannot obtain additional capital, we will not be able to implement our expansion strategy successfully, our growth could be limited and our results of operations could decline.
We may not realize the expected value of our goodwill and intangible assets.
As of June 30, 2025 and December 31, 2024, approximately 18.6% of our total assets, respectively, were represented by goodwill and intangible assets, net of amortization. Trademarks subject to amortization are capitalized and amortized over 15 years on a straight-line basis. Patient lists acquired as part of dental practice acquisitions are capitalized and amortized over 15 years on a straight-line basis.
Goodwill is recognized for the excess of the purchase price over the fair value of tangible and identifiable intangible net assets of businesses acquired. Goodwill is not amortized but is assessed for impairment annually. When testing goodwill for impairment, we may first assess qualitative factors to determine if it is more likely than not the carrying value of an asset exceeds its estimated fair value. During a qualitative analysis, we consider the impact of changes, if any, to the following factors: macroeconomic, industry and market factors; cost factors; changes in overall financial performance; and any other relevant events and uncertainties impacting the fair value. If our qualitative assessment indicates a goodwill impairment is more likely than not, we perform additional quantitative analyses. We may also elect to bypass the qualitative testing and proceed directly to the quantitative testing. We completed our annual impairment test for goodwill as of October 1, 2024 and 2023, and determined the fair value of goodwill was substantially in excess of the carrying value, thus no impairment adjustment was deemed necessary for 2024 or 2023.
If impairment were determined to be appropriate in any of our asset categories, we would make the appropriate adjustment to the asset to reduce the asset’s carrying value to fair value. In the event of any sale or liquidation of us or a portion of our assets, the value of our intangible assets may not be realized. Any future determination requiring the write-off of goodwill or recognizing an impairment charge could have an adverse effect on our financial condition and results of operations.
We cannot guarantee future financial performance based on our historical performance.
We rely on our management to successfully manage our operations and any expansion and development opportunities. However, future results of operations are also dependent on various other factors outside of our control. There is no guarantee that our historical performance is indicative of our future financial performance.
Risks Related to our Common Stock and this Offering
There has been no prior public market for our Common Stock and an active market may not develop or be maintained, which could limit your ability to sell shares of our Common Stock.
Prior to this offering, there has been no public market for our common stock, and the initial public offering price may bear no relationship to our book value, earnings history or other established criteria of value or to the price at which the Common Stock will trade after the offering. The initial public offering price for the shares of our Common Stock will be determined by negotiations between us and the underwriters and may not be indicative of prices that will prevail in the open market after the offering. An active public market for our Common Stock may not develop or be sustained after the offering. As a result, investors may not be able to sell their Common Stock at or above the initial public offering price or at the time that they would like to sell. Further, certain individuals have the opportunity to purchase in aggregate up to % of our shares of common stock offered in this offering at the initial public offering price in a directed share program. To the extent these individuals purchase shares in this offering, fewer shares may be actively traded in the public market because these individuals may be restricted from selling the shares by a 180-day lock-up restriction, which would reduce the liquidity of the market for our common stock.
We expect that the price of our Common Stock will fluctuate significantly.
Volatility in the market price of our Common Stock may prevent you from being able to sell your Common Stock at or above the price you paid for your Common Stock. The market price for our Common Stock could fluctuate significantly for various reasons, including:
•
our operating and financial performance and prospects, including seasonal fluctuations in our financial performance;
•
conditions that impact demand for the services of our affiliated dentists;
•
the public’s reaction to our press releases, other public announcements and filings with the Securities and Exchange Commission;
•
changes in earnings estimates or recommendations by securities analysts who track our Common Stock;
•
market and industry perception of our success, or lack thereof, in pursuing our growth strategy;
•
strategic actions by us or our competitors, such as acquisitions or restructurings;
•
changes in federal and state government regulation;
•
changes in accounting standards, policies, guidance, interpretations or principles;
•
arrival or departure of key personnel;
•
sales of Common Stock by us, affiliated dentist shareholders or members of our management team; and
•
changes in general market, economic and political conditions in the United States and global economies or financial markets, including those resulting from natural disasters, terrorist attacks, acts of war and responses to such events.
In addition, if the market for stocks in our industry, or the stock market in general, experiences a loss of investor confidence, the trading price of our Common Stock could decline for reasons unrelated to our business, financial condition or results of operations. If any of the foregoing occurs, it could cause our stock price to fall and may expose us to lawsuits that, even if unsuccessful, could be costly to defend and a distraction to management.
Future sales of our Common Stock, or the perception that such sales may occur, could depress our Common Stock price.
Upon completion of this offering, our current shareholders will hold a substantial number of shares of our Common Stock that they will be able to sell in the public market in the near future. Sales, or the perception that such sales may occur, by our current shareholders, in particular by our affiliated dentist shareholders, directors and executive officers of a substantial number of shares after this offering could significantly reduce the market price of our Common Stock.
We, our directors and executive officers, and all of our shareholders have agreed with the underwriters that, without the prior written consent of Northland Securities, Inc., we and they will not, subject to certain exceptions, during the period ending 180 days after the date of this prospectus offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of directly or indirectly, or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
All of our shares of Common Stock will be freely tradable after the expiration of the lock-up agreements, excluding any shares acquired by persons who may be deemed to be our affiliates. Approximately shares of our Common Stock held by our affiliates will continue to be subject to the volume and other restrictions of Rule 144 under the Securities Act of 1933, or the Securities Act. The representative of the underwriters,
in its sole discretion and at any time without notice, may release all or any portion of the shares of our Common Stock subject to the lock-up agreements.
In addition, immediately following this offering, we intend to file a registration statement registering under the Securities Act the shares of Common Stock reserved for issuance in respect of incentive awards and restricted stock awards to our officers and certain of our employees. If any of these holders cause a large number of securities to be sold in the public market, the sales could reduce the trading price of our Common Stock. These sales also could impede our ability to raise future capital. See the information under the heading “Shares Eligible for Future Sale” for a more detailed description of the shares that will be available for future sales upon completion of this offering.
Investors in this offering will experience immediate and substantial dilution.
If you purchase Common Stock in this offering, you will pay more for your shares than the amounts paid by existing shareholders for their shares. As a result, you will incur immediate dilution of $ per share, representing the difference between the assumed initial public offering price of $ per share, which is the mid-point of the range set forth on the cover of this prospectus, and our as adjusted net tangible book deficit per share after giving effect to this offering.
In addition, the Company has shares of restricted Common Stock outstanding that following this offering will vest at the rate of 6.25% per quarter. The vesting of such shares will increase the number of shares of Common Stock outstanding, which will have the effect of decreasing earnings per share.
Our issuance of additional shares of Common Stock in connection with financings, acquisitions, investments, equity incentive plans, or otherwise will dilute all shareholders.
We expect to issue additional shares of Common Stock in the future that will result in dilution to all other shareholders. We expect to grant equity awards to employees, directors, and consultants under our equity incentive plans. As part of our business strategy, we may acquire or affiliate with dental practices and issue equity securities in connection with such transactions. Any such issuances of additional shares of Common Stock may cause shareholders to experience significant dilution of their ownership interests and the per share value of the Common Stock to decline.
We may also raise capital through equity financings in the future. Any additional capital raised through the sale of equity may dilute existing shareholders’ percentage ownership of the Common Stock and we could create new equity securities which could have rights, preferences and privileges superior to those of holders of the Common Stock. Capital raised through debt financing would require us to make periodic interest payments and may impose restrictive covenants on the conduct of our business. Furthermore, additional financings may not be available on terms favorable to us, or at all. A failure to obtain additional funding could prevent us from making expenditures that may be required to implement our growth strategy and grow or maintain our operations.
Our Directors serve staggered, three years terms and the holders of our Common Stock do not control the election of all Board of Director positions. Our affiliated dentists control the right to appoint three Board of Director positions.
Our Board of Directors is structured in three classes, each with a three-year term. Common Stock shareholders have the right to vote for a majority, but not all of the Board of Directors. Dentists of our affiliated dental practices meeting certain criteria principles focused on years of practice with the group elect a five (5) person Board of Governors of DDS Advisor LLC, a South Dakota limited liability company.
This Board then appoints one director in each class of our Board of Directors, giving DDS Advisor LLC the right to appoint three (3) directors on our Board of Directors. This structure may deter a future tender offer and may have the effect of assisting our management to retain its position and place it in a better position to resist changes that shareholders may desire.
General Risk Factors
We are subject to risks associated with engaging in acquisitions.
While individual acquisitions have historically not been material relative to the size of our overall operations, we expect to engage in future acquisitions to achieve our growth strategy. Our ability to execute
our growth strategy depends in part on our ability to identify and acquire desirable acquisition candidates at a price and on terms acceptable to us (including terms which foster motivation for continued success in the acquired dental practices) and on our ability to successfully integrate acquired operations into our group. If we identify suitable acquisition candidates, we may be unable to successfully negotiate their acquisition at a price or on terms and conditions acceptable to us. In addition, we are not always able to control the timing of our acquisitions. An inability to complete acquisitions within the time frames that we expect may cause our results of operations to be less favorable than expected. Even if we are able to make acquisitions on advantageous terms and are able to integrate them successfully into our group, some acquisitions may not fulfill our anticipated financial or strategic objectives in a given market due to factors that we cannot control, such as market conditions, market position, competition, patient base contraction, third-party legal challenges or governmental actions.
A component of our growth strategy involves achieving economies of scale and operating efficiencies by growing through acquisition. We may not achieve these goals unless we effectively integrate the operations of acquired dental practices within our existing group. Our future financial performance is impacted by our ability to efficiently and effectively integrate the operations of acquired dental practices into our existing network and achieve identified cost savings and other synergies. In addition, we may change our strategy with respect to a market or acquired dental practices and decide to sell such operations at a loss, or keep those operations and recognize an impairment of goodwill and/or intangible assets.
Failure to retain existing patients of the acquired dental practices, expand operational and financial systems and controls or to retain and integrate appropriate personnel could also adversely affect our results of operations. Further, if capital expenditure requirements are greater than anticipated, or if we are unable to manage our growth profitably, our business, financial condition, cash flows and prospects may be negatively impacted.
We may also have opportunities in the future to acquire other dental support services organizations. Such acquisitions may result in difficulties in assimilating acquired dental support services organizations and may result in the diversion of our capital and our management’s attention from other business issues and opportunities. We may not be able to successfully integrate other dental support services organizations that we acquire, including their personnel, systems and general operating procedures. If we fail to successfully integrate such acquisitions, we could experience increased costs associated with operating inefficiencies, which could have an adverse effect on our profitability.
We may be subject to potential liabilities from past and future acquisitions.
While individual acquisitions are generally not expected to be material to the size of our overall operations, acquired dental practices may be subject to operational, tax and other liabilities and risks that were not identified at the time they were acquired. In pursuing acquisitions, we will conduct due diligence on the business or assets being acquired and seek detailed representations and warranties with respect to the business or assets being acquired and as a standard practice to seek to obtain indemnification from sellers of the acquired dental practices. Despite such efforts, there can be no assurance that the scope of such indemnification would adequately cover any liabilities as a result of acquisitions, or that we will not become subject to undisclosed liabilities as a result of acquisitions. Any failure to discover potential liabilities may be due to various factors, such as a failure to accurately assess all of the pre-existing liabilities of the operations acquired or sellers failing to comply with laws. If this occurs, we may be responsible for such liabilities or prior violations of laws, which could have a material adverse effect on our business, financial condition, results of operations and cash flows and in some instances, could negatively impact the public perception of our brand. Further, we are also subject to the risk of fraud on the part of sellers which could, among other things, result in an overstatement of key metrics of the acquired dental practices or in the failure to disclose instances of non-compliance with applicable laws, dental benefits policies or contracts related to the acquired dental practices which could expose us to governmental investigation, penalties or fines, the risk of termination or renegotiation of such contracts and have a negative impact on the public perception of our brand.
The obligations associated with being a public company will require significant resources and management attention, which may divert from our business operations.
As a result of this offering, we will become subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the Sarbanes-Oxley Act of 2002, or the
Sarbanes-Oxley Act. The Exchange Act requires that we file annual, quarterly and current reports with respect to our business and financial condition. The Sarbanes-Oxley Act requires, among other things, that we establish and maintain effective internal controls and procedures for financial reporting. As a result, we will incur significant legal, accounting and other expenses that we did not previously incur. We anticipate that we may need to upgrade our systems, implement additional financial and management controls, reporting systems and procedures, implement an internal audit function, and hire additional accounting and internal audit staff. Furthermore, the need to establish the corporate infrastructure demanded of a public company may divert management’s attention from implementing our growth strategy, which could prevent us from improving our business, results of operations and financial condition. We have made, and will continue to make, changes to our internal controls and procedures for financial reporting and accounting systems to meet our reporting obligations as a stand-alone public company. However, the measures we take may not be sufficient to satisfy our obligations as a public company. In addition, we cannot predict or estimate the amount of additional costs we may incur in order to comply with these requirements. We anticipate that these costs will materially increase our general and administrative expenses.
We will be required, pursuant to Section 404 of the Sarbanes-Oxley Act, to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting as of the end of the fiscal year that coincides with the filing of our second annual report on Form 10-K. This assessment will need to include disclosure of any material weaknesses identified by our management in our internal control over financial reporting. We will also be required to disclose changes made in our internal control and procedures on a quarterly basis. However, our independent registered public accounting firm will not be required to report on the effectiveness of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act until the later of the year following our first annual report required to be filed with the SEC, or the date we are no longer an “emerging growth company” as defined in the JOBS Act. At such time, our independent registered public accounting firm may issue a report that is adverse in the event it is not satisfied with the level at which our controls are documented, designed or operating.
The date we would cease to be an emerging growth company would be the earliest of (i) the last day of the fiscal year in which we have more than $1.235 billion in annual revenue; (ii) the date we qualify as a “large accelerated filer;” and (iii) the date on which we have, during the previous three-year period, issued more than $1 billion in non-convertible debt securities, or (iv) the last day of the fiscal year following the fifth anniversary of our first sale of common equity securities under an effective Securities Act registration statement,
We are an emerging growth company within the meaning of the Securities Act and may take advantage of certain reduced reporting requirements.
As a company with less than US $1.235 billion in revenue for our last fiscal year, we qualify as an “emerging growth company” pursuant to the JOBS Act. Therefore, we may take advantage of specified reduced reporting and other requirements that are otherwise applicable generally to public companies. These provisions include exemption from the auditor attestation requirement under Section 404 of the Sarbanes-Oxley Act of 2002, or Section 404, in the assessment of the emerging growth company’s internal control over financial reporting and permission to delay adopting new or revised accounting standards until such time as those standards apply to private companies. As a result, if we elect not to comply with such reporting and other requirements, in particular the auditor attestation requirements, our investors may not have access to certain information they may deem important.
Our senior management team has limited experience managing a public company, and regulatory compliance may divert our attention from the day-to-day management of our business.
The individuals who constitute our senior management team have limited experience managing a publicly traded company and limited experience complying with the increasingly complex laws pertaining to public companies. Our senior management team may not successfully or efficiently manage a public company subject to significant regulatory oversight and reporting obligations under United States securities laws. In particular, these obligations require substantial attention from our senior management and could divert their attention away from the day-to-day management of our business.
If equity research analysts do not publish research or reports about our business or if they issue unfavorable commentary or downgrade our Common Stock, the price of our Common Stock could decline.
The trading market for our Common Stock will rely in part on the research and reports that equity research analysts publish about us and our business. We do not control these analysts. The price of our stock could decline if one or more equity analysts downgrade our stock or if those analysts issue other unfavorable commentary or cease publishing reports about us or our business.
Our amended and restated bylaws contain our restated certificate of incorporation and Minnesota law each contain provisions that could discourage another company from acquiring us and may prevent attempts by our shareholders to replace or remove our current management.
Provisions of our amended and restated bylaws, our restated articles of incorporation and Minnesota law may discourage, delay or prevent a merger or acquisition that shareholders may consider favorable, including transactions in which you might otherwise receive a premium for your shares. In addition, these provisions may frustrate or prevent any attempts by our shareholders to replace or remove directors appointed by our affiliated dentists. These provisions include:
•
authorizing the issuance of “blank check” preferred stock without any need for action by shareholders;
•
eliminating the ability of shareholders to call special meetings of shareholders;
•
Requiring a supermajority vote for a change in control transaction;
•
Staggered board of directors with three board seats appointed by a dentist controlled entity;
•
prohibiting shareholder action by written consent; and
•
establishing advance notice requirements for nominations for election to the board of directors or for proposing matters that can be acted on by shareholders at shareholder meetings.
We are also subject to provisions of the Minnesota corporation law that, in general, prohibit any business combination with a beneficial owner of 10% or more of our Common Stock for four years unless the holder’s acquisition of our stock was approved in advance by our board of directors. In addition, Minnesota corporation law also invalidates the voting rights of shares of Common Stock if specific procedures are not complied with as a shareholder accumulates increasing amounts of share ownership percentage. Together, these article and statutory provisions could make the removal of management more difficult and may discourage transactions that otherwise could involve payment of a premium over prevailing market prices for our Common Stock.
The existence of the foregoing provisions and anti-takeover measures could limit the price that investors might be willing to pay in the future for shares of our Common Stock. They could also deter potential acquirers of our company, thereby reducing the likelihood that you could receive a premium for your Common Stock in an acquisition.
Certain limitations on director and officer liability and indemnification in our articles of incorporation and indemnification agreements may discourage shareholders from bringing a lawsuit against our directors and officers for breaches of their fiduciary duties, may reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit the Company and other shareholders, and may adversely impact shareholders’ investments to the extent that the Company pays the costs of settlement and damage awards against directors and officers as required by these indemnification provisions.
In accordance with the provisions in our articles of incorporation, we will indemnify an officer, director, or former officer or director, to the full extent permitted by law. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or persons controlling us under the foregoing provisions, or otherwise, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of us in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
While we believe that including the limitation and indemnification provisions in our post-offering agreements and articles of incorporation is customary and necessary to attract and retain qualified persons such as directors, officers and key employees, those provisions may discourage shareholders from bringing a lawsuit against our directors and officers for breaches of their fiduciary duties. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and other shareholders. Further, a shareholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and officers as required by these indemnification provisions.
Our business could be adversely affected by natural disasters, public health crises, political crises, economic downturns or other unexpected events.
A significant natural disaster, such as an earthquake, fire, hurricane, tornado, flood or significant power outage, could disrupt our operations, mobile networks, the internet or the operations of our third-party technology providers. In addition, any unforeseen public health crises, such as that experienced with COVID-19, or political crises, such as terrorist attacks, war and other political instability, or other catastrophic events, whether domestic or abroad, could adversely affect our operations or the economies of the markets where we operate. The COVID-19 pandemic adversely affected the dental industry between 2020 and 2021, and we cannot assure you that similar outbreaks, from new variants of COVID-19, or new viruses, will not occur in the future. Any such occurrences could cause severe disruption to our daily operations. Any natural disaster, act of terrorism or other disruption to us or our business partners’ abilities could result in decreased demand for our product and service offerings or a delay in the provision of our offerings, which could adversely affect our business, financial condition and results of operations. All of the aforementioned risks may be further increased if our disaster recovery plans prove to be inadequate. Disruptions or downturns in global or national or local economic conditions may cause demand for dental services to decline. An economic downturn resulting in a prolonged recessionary period would have a material adverse effect on our business, financial condition, and operating results.
FORWARD-LOOKING STATEMENTS AND
STATISTICAL DATA AND MARKET INFORMATION
This prospectus contains forward-looking statements. Forward-looking statements relate to future events or our future financial performance. We generally identify forward-looking statements by terminology such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or other similar words, although not all forward-looking statements contain these words. These statements are only predictions.
Any forward-looking statements contained in this prospectus are based upon our historical performance and on our current plans, estimates and expectations. The inclusion of this forward-looking information should not be regarded as a representation by us, the underwriters or any other person that the future plans, estimates or expectations contemplated by us will be achieved. Such forward-looking statements are subject to various risks and uncertainties and assumptions relating to our operations, financial results, financial condition, business, prospects, growth strategy and liquidity. If one or more of these or other risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, our actual results may vary materially from those indicated in these statements:
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Changes in the economy, inflation, interest rates, or consumer demand can significantly affect business performance, including risks related to economic downturns, shifts in consumer behavior, or instability in financial markets;
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Market competition, technological innovation, or shifts in dental industry trends can threaten growth;
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Changes in government regulations, tax laws, dental practice standards, and compliance requirements may impact operations; and
•
Reputational harm affecting our affiliated dental brands could impact financial performance.
These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in this prospectus. The forward-looking statements made in this prospectus relate only to events as of the date on which the statements are made. We undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events.
This prospectus also contains estimates and other statistical data made by independent parties and by us relating to market size and growth and other industry data. This data involves a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates.
USE OF PROCEEDS
We estimate that the net proceeds from the sale of the Common Stock will be approximately $ million, based on an assumed initial public offering price of $ per share, which is the midpoint of the range listed on the cover page of this prospectus, after deducting underwriting discounts and commissions of approximately $ million and estimated offering expenses payable by us of approximately $ million, which include legal, accounting, printing and other offering expenses. Our net proceeds will increase by approximately $ million if the underwriters option to purchase additional shares is exercised in full. Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the range listed on the cover page of this prospectus, would increase (decrease) the net proceeds to us of this offering by approximately $ million, assuming the number of shares offered by us, as listed on the cover page of this prospectus, remains the same and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
We intend to use the net proceeds from this offering for general corporate purposes, including working capital and corporate development, and repayment of outstanding debt.
We intend to use the net proceeds from this offering for general corporate purposes, which may include acquisitions of practices, capital expenditures (such as investments in de novo practices), working capital, and repayment and refinancing of outstanding debt. The net proceeds from this offering may be used to repay a portion of the principal and accrued interest outstanding on the Bank Notes Payable term loan, which has an interest rate of one-month SOFR plus 2.10% and matures in March 2029, and had $10.7 million and $11.6 million principal outstanding as of June 30, 2025 and December 31, 2024, respectively. From time to time, we engage in preliminary discussions and negotiations with various dental practices in order to explore the possibility of an acquisition or investment. However, as of the date of this prospectus, we have not entered into any agreements or arrangements which would make any acquisitions, investment, or repayment and refinancing of debt probable. We have not determined the amounts we plan to spend on the areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds of this offering.
Pending the uses described herein, we will invest the net proceeds in short-term, investment grade, interest-bearing securities.
DIVIDEND POLICY
No dividends were paid for the six month period ended June 30, 2025, and 2024. For the year ended December 31, 2024, dividends of $6.7 million were paid to shareholders. In 2023 dividends of $0.4 million were paid to shareholders of our affiliated dental practices. as reimbursement for their share of partnership income tax liability. Prior to the creation of Park Dental Partners, Inc. in 2023, affiliated dental practices distributed profits via incentive bonuses, which are reflected in our net income during that period. These bonuses were utilized to distribute a component of our operating profits to owners in a tax efficient manner.
Payment of cash dividends in the future will be dependent upon operating profits, liquidity needs, capital requirements and general financial condition. We have not declared a formal dividend policy, nor do we expect to prior to becoming a public company. Any determination to pay dividends on our Common Stock thereafter will be at the discretion of our Board of Directors based upon all relevant factors present at that time.
CAPITALIZATION
The following table sets forth our cash and capitalization as of June 30, 2025, on: (i) an actual basis; (ii) a pro forma basis to give effect to (a) the vesting of 25% of the outstanding Park Dental Partners, Inc. restricted Common Stock, resulting in a total of 869,313 vesting immediately upon the completion of this offering and (iii) a pro forma as adjusted basis adjusted to give effect to the pro forma adjustments described in the preceding clause (ii) and the receipt of $ reflect the net proceeds received in this offering and the issuance and sale of shares of Common Stock in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us:
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As of June 30,
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(in thousands)
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2025
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Proforma
2025(1)
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Proforma
as Adjusted(1)
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CONSOLIDATED BALANCE SHEET
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ASSETS
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Cash
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|
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|
$ |
2,892 |
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|
|
|
$ |
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$ |
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Total current assets
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|
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|
13,499 |
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Total non current assets
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|
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|
|
136,846 |
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TOTAL ASSETS
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|
$ |
150,345 |
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LIABILITIES AND DEFICIT
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CURRENT LIABILITIES:
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Current debt
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|
|
1,915 |
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Total current liabilities
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31,034 |
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|
|
Total long-term liabilities
|
|
|
|
|
119,869 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES
|
|
|
|
|
150,903 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SHAREHOLDERS’ DEFICIT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders’ deficit
|
|
|
|
|
(558) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES AND SHAREHOLDERS’ DEFICIT
|
|
|
|
$ |
150,345 |
|
|
|
|
$ |
|
|
|
|
|
$ |
|
|
|
(1)
Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share of Common Stock, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase as adjusted cash, working capital, total assets, and total equity by $ million, assuming that the number of shares of Common Stock offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. Similarly, each increase (decrease) of 100,000 shares of Common Stock in the number of shares offered by us at the assumed initial public offering price, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us would increase (decrease) as adjusted cash, working capital, total assets, and total equity by $ million. The adjusted information discussed above is illustrative only and will be adjusted based on the actual initial public offering price and other terms of our initial public offering determined at pricing.
The table above assumes the underwriters option to purchase additional shares of Common Stock will not be exercised and excludes:
•
shares of Common Stock issuable upon the vesting of outstanding Park Dental Partners, Inc restricted stock that have been issued under our 2023 Equity Incentive Plan and 2023 Restricted Stock Plan that will not automatically vest immediately upon the completion of this offering; and
•
shares of Common Stock available for issuance pursuant to our 2023 Equity Incentive Plan.
DILUTION
If you invest in our Common Stock, your interest will be diluted to the extent of the difference between the public offering price per share of Common Stock you pay and the as adjusted net tangible book value per share of our Common Stock after this offering.
Our historical net tangible book deficit as of June 30, 2025 was ($28.6 million), or $1.63 per share of Common Stock. We calculate net tangible book value per share by calculating the total assets less goodwill and other intangible assets and total liabilities, and dividing that result by the number of shares of Common Stock outstanding.
Our pro forma net tangible book deficit as of June 30, 2025 was $ million, or $ per share of Common Stock. Pro forma net tangible book deficit represents the amount of our total assets less goodwill and other intangible assets and total liabilities after giving effect to the vesting of 869,313 shares of restricted Common Stock immediately upon the completion of this offering.
Net tangible book value dilution per share of Common Stock represents the difference between the amount per share paid by new investors who purchase shares of Common Stock in this offering and the as adjusted pro forma net tangible book value per share of Common Stock immediately after completion of this offering. As of June 30, 2025, after giving effect to the pro forma adjustments described in the preceding paragraph and the application of the estimated net proceeds to us in this offering as described under “Use of Proceeds,” our as adjusted pro forma net tangible book deficit would have been $ million, or $ per share, assuming that the shares of Common Stock offered under this prospectus are sold at a public offering price of $ per share (the mid-point of the range set forth in the cover page of this prospectus). This represents an immediate increase in net tangible book value of $ per share to existing shareholders, and an immediate dilution in net tangible book value of $ per share to new investors in the offering. The table below illustrates this per share dilution as of June 30, 2025:
| |
Assumed initial public offering price per share of Common Stock
|
|
|
|
|
|
|
|
|
|
$ |
|
|
|
| |
Net tangible book deficit per share of Common Stock as of June 30, 2025
|
|
|
|
$ |
(1.63) |
|
|
|
|
|
|
|
|
| |
Decrease in net tangible book value per share of Common Stock attributable to pro forma transactions described above
|
|
|
|
|
|
|
|
|
| |
Increase in net tangible book value per share of Common Stock attributable to new investors
|
|
|
|
$ |
|
|
|
|
| |
As adjusted pro forma net tangible book deficit per share of Common Stock after this offering
|
|
|
|
|
|
|
|
|
|
$ |
|
|
|
| |
Dilution in net tangible book value per share of Common Stock to new investors
|
|
|
|
|
|
|
|
|
|
$ |
|
|
|
A $1.00 increase (decrease) in the assumed public offering price of $ per share would increase (decrease) our as adjusted net tangible book deficit per share after this offering by $ , and the dilution to new investors by $ per share, assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us.
If the underwriters exercises their over-allotment option in full, our as adjusted net tangible book deficit will increase to $ per share, representing an increase to existing holders of $ per share, and there will be an immediate dilution of $ per share to new investors.
The following table sets forth, on an as adjusted basis as of June 30, 2025, the number of shares of Common Stock purchased or to be purchased from us, the total consideration paid or to be paid and the average price per share paid or to be paid by existing holders of Common Stock and by new investors, at an assumed initial public offering price of $ per share, before deducting underwriting discounts and estimated offering expenses payable by us.
| |
|
|
Shares Purchased
|
|
|
Total Consideration
|
|
|
Average
Price
Per Share
|
|
| |
|
|
Number
|
|
|
Percent
|
|
|
Amount
|
|
|
Percent
|
|
|
Existing shareholders
|
|
|
|
|
|
|
|
%
|
|
|
|
|
$ |
|
|
|
|
|
|
%
|
|
|
|
|
$ |
|
|
|
|
New investors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
100.0% |
|
|
|
|
$ |
|
|
|
|
|
|
100.0% |
|
|
|
|
$ |
|
|
|
The table above assumes the underwriters option to purchase additional shares of Common Stock will not be exercised and excludes:
•
shares of Common Stock issuable upon the vesting of outstanding restricted stock that issued under our 2023 Equity Incentive Plan and 2023 Restricted Stock Plan that will not automatically vest immediately upon the completion of this offering; and
•
shares of Common Stock available for issuance pursuant to our 2023 Equity Incentive Plan.
MANAGEMENT’S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and related notes that appear elsewhere in this prospectus. In addition to historical consolidated financial information, the following discussion contains forward-looking statements that reflect our plans, estimates and beliefs. Our actual results could differ materially from those discussed in the forward-looking statements. Factors that could cause or contribute to these differences include those discussed below and elsewhere in this prospectus, particularly in “Risk Factors.” In accordance with factors for consolidation under generally accepted accounting principles in the United States, we consolidate the net assets and results of operations of the affiliated dental practices operating under long-term business service agreements with us. As a result, references to our revenues, our expenses and similar items relating to our results of operations and net assets includes the revenues, expenses and similar items of our affiliated dental practices and all transactions between the affiliated dental practices and us, such as the service fees we charge, are eliminated in consolidation.
Overview
As a dental resource organization (“DRO”) operating through Park Dental Partners, Inc. we provide administrative business support services including clinical team members, administrative personnel, facilities and equipment to our affiliated general and multi-specialty dental practices throughout Minnesota and Wisconsin. Our network of affiliated dental practices employs over 200 dentists across 85 practice locations and was ranked as one of Minnesota’s largest private companies by revenue by the Minneapolis/St Paul Business Journal, in June 2025. Our clinical support team includes over 900 hygienists, dental assistants, and patient care coordinators that support affiliated dentists in operating their dental practices. Our network of affiliated dental practices has been operating for over fifty years, beginning with the establishment of the general dentistry group in 1972. The mission of our affiliated dental practices since inception has been to ensure patients enjoy the benefits of a lifetime of good oral health. This mission continues to be the driving force behind our organization today.
Business Model
We provide support services on an exclusive basis to dental groups operating in the Midwest United States, primarily in Minnesota. We operate under long term Administrative Resources Agreements with affiliated dental groups pursuant to which we provide business support services, non-clinical personnel, facilities and equipment. In exchange for providing these services, we receive a management fee plus reimbursement of certain costs incurred by us in connection with fulfilling our responsibilities under these services agreements.
Our Administrative Resources Agreements are long-term agreements between the affiliated dental group and the DRO, and a single designated doctor who is the sole holder of the equity of the respective affiliated dental group. The agreements outline the terms under which we provide administrative, business, and operational support services to the affiliated dental practices. Effective October 1, 2023, each agreement establishes the DRO as the exclusive provider of non-clinical services — such as billing, collections, staffing, marketing, compliance, and facilities management — allowing the affiliated dental group to focus solely on delivering professional dental services. The agreements ensure compliance with state laws prohibiting the unlicensed practice of dentistry, clearly delineating that all clinical decisions remain under the affiliated dental practice’s control and the practices’ dentists. Each agreement includes detailed provisions on financial arrangements, including a management fee based on a percentage of net collections, confidentiality, indemnification, and termination rights. The agreements are effective for 30 years with automatic five-year renewals, unless another termination date is mutually agreed upon. The agreements also include restrictive covenants and HIPAA compliance obligations.
Under each long-term Administrative Resources Agreement, the affiliated dental practice agrees to pay the DRO a monthly management fee equal to approximately 15% – 18% of the affiliated dental group’s net collections. Net collections are defined as the actual cash receipts collected by the affiliated dental practice, minus any patient or payor refunds, adjustments, and payments made to third-party collection agencies. As a result of our exclusive, long-term Administrative Resource Agreements with our affiliated dental
practices, we have a variable interest and are the primary beneficiary in those affiliated dental practices. Accordingly, our consolidated financial results include the consolidated results of the affiliated dental practices in which we do not hold an equity interest. See further description under Note 16, Variable Interest Entities, of the Consolidated Financial Statements presented elsewhere in this Prospectus.
The agreements also stipulate that the management fee will automatically increase by 5% annually unless both parties agree in writing to a different arrangement. Additionally, each affiliated dental practice is responsible for fully reimbursing the DRO, without any markup, for all costs, expenses, and liabilities incurred in connection with the services rendered under the agreements or related to the operation and maintenance of the affiliated dental practice’s business.
Stock transfer restrictions exist between the DRO, the affiliated dental practice and the single designated doctor who is the sole holder of the nominal equity of the respective affiliated dental practice. The restrictions ensure continuity and compliance with legal and operational standards. Transfers are only permitted under specific conditions, such as the designated doctor’s death, disability, or disqualification, and must be made to a designated transferee approved by the DRO. The restrictions outline procedures for such transfers, including automatic resignation from company roles and payment terms. The agreement also includes provisions for arbitration, enforcement, and confidentiality, as governed by Minnesota law.
Park Dental Partners, Inc has a controlling financial interest in the affiliated dental groups operating under the administrative resources agreements which provide the DRO the right to receive a significant majority of profits generated by the affiliated dental practices. Accordingly, the assets and liabilities and results of operations of the affiliated dental practices are included in our consolidated financial statements and all transactions between the affiliated dental practices and us, such as the service fees we charge, have been eliminated.
Our network of affiliated dental practices provides both general and specialty dental services, including oral surgery, periodontics, pediatric dentistry, prosthodontics, endodontics, and orthodontics, under long-term agreements with initial terms of 30 years, with automatic 5-year renewals. We have established a significant footprint and brand awareness in our current markets. Our revenues, derived primarily from our affiliated dental practices’ provision of dental services, were approximately $122.0 million and $117.5 million in the six months ended June 30, 2025 and 2024, respectively, and approximately $229.8 million and $223.5 million in 2024 and 2023, respectively. As a result of our exclusive, long-term agreements with our affiliated dental practices, our consolidated financial results include the consolidated results of the affiliated dental practices, in which we do not hold an equity interest.
Our material revenues are comprised of dental services, which includes the consolidated revenues of our affiliated dental practices. Dental services are provided to patients, who typically pay for services out-of-pocket, through private insurance plans, or through government insurance plans. Approximately 92% and 93% of total revenues for the six months ended June 30, 2025 and 2024, respectively, were derived from patients with private insurance or government sponsored plans. Approximately 93% of total revenues for each of the years ended December 31, 2024 and 2023, were derived from patients with private insurance or government sponsored plans. Our revenues have increased over the past several years, driven primarily by acquisitions, growth in new and existing patients, increased dentist and hygienist productivity, the expansion of specialty services, increased volume of hygiene services and the hiring of additional dentists and hygienists.
We intend to grow our revenues primarily through expansion of our existing affiliated practices by hiring additional dentists and hygienists, expansion of specialty services, increased productivity and patient appointment volume. We also intend to leverage our strong brand names to expand through acquisition and de novo practices in our existing and new markets. We supported the acquisition of one practice in the six months ended June 30, 2025, and two dental practices in each of the years ended December 31, 2024 and 2023, respectively. We also opened a de novo practice during the year ended December 31, 2023, and no de novo openings in the year ended December 31, 2024.
Absent the impact and timing of acquisitions, our total revenues have historically been lower in the third quarter of the year due to fluctuations in patient volumes, which are primarily impacted by the timing of holidays and the school year calendar.
Our cost of services consists of clinical team member costs and benefits, dental supplies and laboratory fees, office occupancy, depreciation associated with practice assets, and other practice expenses. In addition, advertising costs with activities at the practice level are charged to cost of services. Our cost of services expenses are directly associated with operating the dental facilities. Clinical team member expenses and benefits consist principally of affiliated dentist compensation, clinical team member compensation and associated benefit costs. Dental supplies and laboratory fees consists of variable costs associated with our affiliated dental practices providing dental services. Office occupancy expenses include lease costs and other practice physical location expenses. Other practice expenses include MinnesotaCare provider taxes, software and subscription costs, repairs and maintenance costs, recruiting, travel and entertainments, insurance and other operating costs. Depreciation expenses are related to our investments in long-lived assets such as dental equipment, and practice location leasehold improvements.
General and administrative expenses consist of regional management expenses, the costs of our centralized billing offices and call-centers, marketing and advertising expenses, executive and senior management, and centralized functions, such as accounting, finance, team member relations, information technology, operations, real estate and other similar functions.
Depreciation and amortization expenses are related to our non practice related investments in resource support center long-lived assets such as computer equipment, furniture and fixtures, and amortization of intangible assets.
Our costs have increased over the last several years as we have grown our business. However, our general and administrative costs as a percentage of total revenues have consistently decreased as we gained additional leverage over our operating cost structure. Improvements in our cost structure have been driven largely by (i) streamlining our business processes to optimize their effectiveness and minimize their cost, and (ii) leveraging our purchasing volumes to obtain favorable pricing from vendors for products and services. At the same time, we believe our business model has allowed affiliated dentists and hygienists to increase productivity as a result of their ability to expand service offerings and treat an increased volume of patients. We expect to gain additional leverage over our operating cost structure in the future by leveraging our centralized infrastructure to support our expected growth and expansion.
Interest expenses have generally increased over the last several years as interest rates have risen. In 2024, we refinanced a revolving line of credit into long-term debt, increasing the amount of our outstanding long-term debt by approximately $10.0 million but decreasing the applicable interest rate. With normal course long term debt amortization payments throughout 2024 and 2025, and lower borrowings on the revolving line of credit, we have experienced lower interest expense. We expect interest expense will continue at a similar rate over the next twelve months unless we make significant acquisitions or otherwise utilize our revolving loan facility.
Our primary sources of liquidity are cash provided by operations and available borrowings under our credit facilities. The service fees we receive from professional associations and their reimbursements of certain costs we incur on their behalf are our primary source of cash from operations. To the extent the affiliated dental groups do not generate sufficient revenues to pay a significant portion of our service fee, after paying for their expenses and reimbursing us for our costs, we may not have sufficient cash to meet our debt obligations.
In accordance with generally accepted accounting principles in the United States, or GAAP, we consolidate the operating results and net assets of affiliated dental groups with our financial statements. Assets of our affiliated dental groups are subject to the first priority lien securing our indebtedness under our credit facilities. The primary assets of professional associations are cash and receivables from patients and third-party payors and their primary liabilities are payables for their direct expenses, such as payables for salaries of dental professionals and payables due to us, which are eliminated through consolidation.
Key Financial Measures, Performance Indicators and Non-GAAP Financial Measures
In assessing the performance of our business, we consider a variety of financial measures and performance indicators that directly or indirectly impact our revenue and profitability. The key financial and Non-GAAP financial measures and performance indicators we use are set forth below, as of and for the six months ended June 30, 2025 and 2024:
| |
|
|
Six Months Ended June 30,
|
|
|
Increase /
(Decrease)
|
|
|
% Increase /
(Decrease)
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
Key Financial Measures
|
|
|
|
|
|
|
Revenue
|
|
|
|
$ |
122,035 |
|
|
|
|
$ |
117,541 |
|
|
|
|
$ |
4,494 |
|
|
|
|
|
3.8% |
|
|
|
Gross Margin
|
|
|
|
$ |
21,762 |
|
|
|
|
$ |
19,851 |
|
|
|
|
$ |
1,910 |
|
|
|
|
|
9.6% |
|
|
|
Net income
|
|
|
|
$ |
4,136 |
|
|
|
|
$ |
4,386 |
|
|
|
|
$ |
(250) |
|
|
|
|
|
(5.7)% |
|
|
|
Same Practice Revenue Growth
|
|
|
|
|
3.6% |
|
|
|
|
|
3.4% |
|
|
|
|
|
0.2% |
|
|
|
|
|
5.9% |
|
|
|
Patient Visits
|
|
|
|
|
361,129 |
|
|
|
|
|
362,868 |
|
|
|
|
|
(1,739) |
|
|
|
|
|
(0.5)% |
|
|
|
Dentist Count
|
|
|
|
|
203 |
|
|
|
|
|
202 |
|
|
|
|
|
1 |
|
|
|
|
|
0.5% |
|
|
|
Patient Retention Rate
|
|
|
|
|
89.7% |
|
|
|
|
|
88.9% |
|
|
|
|
|
0.8% |
|
|
|
|
|
0.9% |
|
|
|
General and Administrative Expenses Percentage(1)
|
|
|
|
|
11.7% |
|
|
|
|
|
11.0% |
|
|
|
|
|
0.7% |
|
|
|
|
|
6.4% |
|
|
|
Non-GAAP Measures
|
|
|
|
|
|
|
Profitability Related Financial Measures:
|
|
|
|
|
|
|
Adjusted Gross Margin
|
|
|
|
$ |
25,985 |
|
|
|
|
$ |
23,837 |
|
|
|
|
$ |
2,147 |
|
|
|
|
|
9.0% |
|
|
|
Adjusted Gross Margin Percentage
|
|
|
|
|
21.3% |
|
|
|
|
|
20.3% |
|
|
|
|
|
1.0% |
|
|
|
|
|
5.0% |
|
|
|
Adjusted EBITDA
|
|
|
|
$ |
13,018 |
|
|
|
|
$ |
11,560 |
|
|
|
|
$ |
1,458 |
|
|
|
|
|
12.6% |
|
|
|
Adjusted EBITDA Percentage
|
|
|
|
|
10.7% |
|
|
|
|
|
9.8% |
|
|
|
|
|
0.8% |
|
|
|
|
|
8.5% |
|
|
(1)
General and administrative expenses percentage is equal to the amount obtained by dividing general and administrative expenses by total revenues.
For a reconciliation of Adjusted EBITDA to Net Income and Adjusted Gross Margin to Gross Margin, the most directly comparable GAAP measures, see “Summary Consolidated and Other Financial Data.”
Revenue Related Financial Measures and Performance Indicators
Same Practice Revenue Growth. Same practice revenues represent total revenues for same dental practice locations that have been operating for at least 13 full months prior to the end of a given period and which have not been closed, or sold during such period. Measuring the year-over-year change in same practice revenues allows us to evaluate how affiliated dental practices are performing. We believe various factors affect comparable practice revenues, including patient demand for dental services, economic trends, dentist and hygienist staffing levels, availability of dentists and hygienists, pricing, competition, visibility and accessibility of the dental practices, quality of the tenants surrounding the dental practices, clinical hours and the level of customer service provided inside and outside of the dental practices.
Same Practice Revenue growth for the six month period ended June 30, 2025 were 3.6%, or 0.2% higher than the 3.4% Same Practice Revenue growth for the six month period ended June 30, 2024. Same Dental practice locations included in Same Practice Revenue for the six month period ended June 30, 2025, and 2024, totaled 81 and 80, respectively.
Increases in Same Practice Revenue growth was attributable to strong revenue same practice growth in both multi-specialty dentistry and general dentistry benefiting from higher dentist revenue including from higher contractual rates and changes in payor mix and patient procedures.
Patient Visits. A patient visit is counted when service is provided to a patient at one of our affiliated dental general dentistry practices. Measuring the year-over-year change in patient visits helps us to evaluate
how the affiliated dental practices are performing. It also helps with evaluating demand for services which influences decision-making relating to matters such as appropriate staffing levels and recruiting needs. In addition, it influences decision-making processes relating to our marketing, sales and advertising strategies and helps us with evaluating the effectiveness of those strategies. Further, with respect to recall patient count, it allows us to evaluate the ability of affiliated dentists to encourage patients to complete their diagnosed dental treatment plans.
Patient visits for the six months ended June 30, 2025 were 361,129, a decrease of (0.5)% from 362,868 for the six months ended June 30, 2024 due to one fewer business day during the six months ended June 30, 2025, compared to the six months ended June 30, 2024.
Dentist Count. Dentists operating in one of our affiliated dental practices are included in this calculation, which includes both full and part-time dentists. Measuring the year-over-year and quarter-over- quarter change in dentist count allows us to evaluate the production capacity of affiliated dental practices. It also influences decision-making relating to matters such as appropriate staffing levels and recruiting needs.
Dentist count as of June 30, 2025 was 203, three lower than the December 31, 2024 dentist count of 206, and an increase of one from June 30, 2024.
Patient Retention Rate. Patient retention rate is calculated by counting patients that remain active at the beginning and end of a twelve-month period. Active patients are defined as general dentistry patients having been seen by our affiliated dental practices within the past 36 months, or last 18 months for patients under the age of 18. Patients who have not been seen by our affiliated dental practices within these time periods are removed from our active patient lists. This methodology is aligned with ADA clinical procedure codes, and is consistent with treatment protocols for new patients, before being considered an active patient again. Measuring the year-over-year and quarter-over-quarter change in patient retention allows us to evaluate the recurring nature of patient visits at the dental practices and affiliated dentists which influences decision-making around matters such as appropriate levels of staffing, recruiting, advertising and facility expansion opportunities. Patient retention experience was stable with a retention rate for the six months ended June 30, 2025 of 89.7%, an increase of 0.8% from 88.9% for the six months ended June 30, 2024.
In assessing the performance of our business, we consider a variety of financial measures and performance indicators that directly or indirectly impact our revenue and profitability. The key financial and Non-GAAP financial measures and performance indicators we use are set forth below, as of and for the years ended December 31, 2024 and 2023:
| |
|
|
Years Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Increase /
(Decrease)
|
|
|
% Increase /
(Decrease)
|
|
|
Key Financial Measures
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
$ |
229,794 |
|
|
|
|
$ |
223,509 |
|
|
|
|
$ |
6,285 |
|
|
|
|
|
2.80% |
|
|
|
Gross Margin
|
|
|
|
$ |
35,679 |
|
|
|
|
$ |
28,846 |
|
|
|
|
$ |
6,833 |
|
|
|
|
|
23.70% |
|
|
|
Net income
|
|
|
|
$ |
4,363 |
|
|
|
|
$ |
4,889 |
|
|
|
|
$ |
(526) |
|
|
|
|
|
-10.80% |
|
|
|
Same Practice Revenue Growth
|
|
|
|
|
1.6% |
|
|
|
|
|
6.3% |
|
|
|
|
|
-4.7% |
|
|
|
|
|
-74.6% |
|
|
|
Patient Visits
|
|
|
|
|
713,118 |
|
|
|
|
|
707,325 |
|
|
|
|
|
5,793 |
|
|
|
|
|
0.80% |
|
|
|
Dentist Count
|
|
|
|
|
206 |
|
|
|
|
|
203 |
|
|
|
|
|
3 |
|
|
|
|
|
1.50% |
|
|
|
Patient Retention Rate
|
|
|
|
|
89.2% |
|
|
|
|
|
89.4% |
|
|
|
|
|
(0.2)% |
|
|
|
|
|
-0.20% |
|
|
|
General and Administrative Expenses Percentage(1)
|
|
|
|
|
11.10% |
|
|
|
|
|
11.20% |
|
|
|
|
|
-0.10% |
|
|
|
|
|
-0.90% |
|
|
|
Non-GAAP Measures
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted Gross Margin
|
|
|
|
$ |
44,008 |
|
|
|
|
$ |
43,066 |
|
|
|
|
$ |
963 |
|
|
|
|
|
2.20% |
|
|
|
Adjusted Gross Margin Percentage
|
|
|
|
|
19.20% |
|
|
|
|
|
19.30% |
|
|
|
|
|
-0.10% |
|
|
|
|
|
-0.50% |
|
|
|
Adjusted EBITDA
|
|
|
|
$ |
19,394 |
|
|
|
|
$ |
19,561 |
|
|
|
|
$ |
(167) |
|
|
|
|
|
-0.90% |
|
|
|
Adjusted EBITDA Percentage
|
|
|
|
|
8.40% |
|
|
|
|
|
8.80% |
|
|
|
|
|
-0.40% |
|
|
|
|
|
-4.50% |
|
|
(1)
General and administrative expenses percentage is equal to the amount obtained by dividing general and administrative expenses by total revenues.
For a reconciliation of Adjusted EBITDA to net income and Adjusted Gross Margin to Gross Margin, the most directly comparable GAAP measures, see “Summary Consolidated and Other Financial Data.”
Revenue Related Financial Measures and Performance Indicators
Same Practice Revenue Growth. Same Practice Revenues for the year ended December 31, 2024 grew 1.6%, which was lower than the 6.3% for the year ended December 31, 2023. Same Dental practice locations included in Same Practice Revenue for fiscal 2024 totaled 78, which was three higher than the Same Dental practice locations of 75 for 2023. Declines in Same Practice Revenue growth, in 2024, and lower clinical production growth in the second half of 2024 reflected lower revenue from hygiene services as our hygienist headcount growth was lowered in the second half of 2024. We do not anticipate the trends from the second half of 2024 to continue into 2025.
Patient Visits. Patient visits for the year ended December 31, 2024 was 713,118, an increase of 0.8% from 707,325 for the year ended December 31, 2023, attributable to increased clinical efficiency and capacity at our affiliated dental practices.
Dentist Count. Dentist count as of December 31, 2024 was 206, an increase of 1.5% from 203 as of December 31, 2023.
Patient Retention Rate. Patient retention was stable with retention rate for the year ended December 31, 2024 was 89.2%, a decrease of 0.2% from 89.4% for the year ended December 31, 2023.
Results of Operations
The following table sets forth, for the periods indicated, our condensed consolidated statements of operations and certain other information, each expressed as a percentage of total revenues. Amounts may not add to the totals due to rounding.
| |
|
|
Six Months Ended June 30,
|
|
|
(in thousands, except share and per share amounts)
|
|
|
2025
|
|
|
2024
|
|
|
Revenue |
|
|
|
$ |
122,035 |
|
|
|
|
$ |
117,541 |
|
|
|
Cost of Services
|
|
|
|
|
Salaries and benefits
|
|
|
|
|
72,733 |
|
|
|
|
|
70,765 |
|
|
|
Dental supplies and Laboratory fees
|
|
|
|
|
8,576 |
|
|
|
|
|
8,886 |
|
|
|
Office occupancy
|
|
|
|
|
8,090 |
|
|
|
|
|
7,699 |
|
|
|
Other practice expenses
|
|
|
|
|
7,015 |
|
|
|
|
|
6,772 |
|
|
|
Depreciation
|
|
|
|
|
3,859 |
|
|
|
|
|
3,568 |
|
|
|
Total Cost of Services
|
|
|
|
|
100,273 |
|
|
|
|
|
97,689 |
|
|
|
Gross Margin
|
|
|
|
|
21,762 |
|
|
|
|
|
19,851 |
|
|
|
General and administrative expenses
|
|
|
|
|
14,308 |
|
|
|
|
|
12,956 |
|
|
|
Depreciation and amortization
|
|
|
|
|
752 |
|
|
|
|
|
769 |
|
|
|
Operating income
|
|
|
|
|
6,702 |
|
|
|
|
|
6,127 |
|
|
|
Interest expense
|
|
|
|
|
(671) |
|
|
|
|
|
(703) |
|
|
|
Income before tax
|
|
|
|
|
6,031 |
|
|
|
|
|
5,424 |
|
|
|
Provisions/(benefit for income tax)
|
|
|
|
|
1,894 |
|
|
|
|
|
1,038 |
|
|
|
Net Income
|
|
|
|
$ |
4,136 |
|
|
|
|
$ |
4,386 |
|
|
|
Earnings per share attributable to common shareholders:
|
|
|
|
|
Basic
|
|
|
|
$ |
2.33 |
|
|
|
|
$ |
2.42 |
|
|
|
Diluted
|
|
|
|
$ |
2.33 |
|
|
|
|
$ |
2.42 |
|
|
Comparison of the Results of Operations for the Six Month Period Ended June 30, 2025 and the Six Month Period Ended June 30, 2024.
Revenues
Total revenues for the six months ended June 30, 2025, increased $4.5 million, or 3.8%, to $122.0 million from $117.5 million for the six months ended June 30, 2024. General Dentistry revenue increased $2.0 million and multi specialty dentistry revenue was higher by $2.5 million reflecting higher payor contractual rates, and higher patient visits at multi specialty. Same Practice Revenue Growth increased approximately 3.6%, or $4.2 million from the prior comparable period.
Cost of Services
Salaries and Benefits Salaries and benefits consist principally of affiliated dentist compensation, clinical team member compensation and related benefit costs. Salaries and benefits for the six months ended June 30, 2025 was $72.7 million, an increase of $2.1 million, or 2.8%, from $70.8 million for the six months ended June 30, 2024 attributable to higher production related compensation, higher clinical team member costs from annual salary increases, and higher employee benefit expenses.
Dental supplies and Laboratory fees Dental supplies and laboratory fees consists of variable costs associated with our affiliated dental practices providing dental services. Dental supplies and laboratory fees expense for the six months ended June 30, 2025 was $8.6 million, a decrease of $0.3 million, or 3.5% from $8.9 million for the six months ended June 30, 2024.
Office occupancy Office occupancy expense includes lease costs and other practice physical location expenses. Office occupancy expense for the six months ended June 30, 2025 was $8.1 million, an increase of $0.4 million, or 5.1%, from $7.7 million for the six months ended June 30, 2024, attributable to increased capacity expansion and slightly higher leasing costs.
Other practice expenses Other practice expenses include MinnesotaCare provider taxes, software and subscription costs, repairs and maintenance costs, recruiting, travel and entertainment, insurance and other operating costs.
Other practice expense for the six months ended June 30, 2025 was $7.0 million, an increase of $0.2 million, or 3.6%, from $6.8 million for the six months ended June 30, 2024 as a result of higher software costs, repairs and maintenance, and provider tax, offset in part by lower recruiting costs.
Depreciation encompasses depreciation associated with practice related assets such as dental equipment, and leasehold improvements, furniture and fixtures and computer equipment. Practice depreciation expense for the six months ended June 30, 2025 was $3.9 million, an increase of $0.3 million, or 8.1%, from $3.6 million for the six months ended June 30, 2024, attributable to increased capital investments in expanded production capacity within existing dental practices.
General and Administrative
General and administrative expenses consist of the costs of our centralized billing offices and call-centers, regional management marketing, and advertising expenses, executive and senior management, and centralized functions, such as accounting, finance, team member relations, information technology, operations, real estate and other similar functions. General and administrative expense for the six months ended June 30, 2025 was $14.3 million, an increase of $1.4 million, or 10.4%, to $13.0 million for the six months ended June 30, 2024. The increase in cost is attributable to higher professional fees, and salaries and wages for administrative personnel and to support and position the organization for this offering.
Depreciation and Amortization
Depreciation and amortization expenses are related to our non practice related investments in long- lived assets such as computer equipment, furniture and fixtures, and amortization of intangible assets.
Depreciation and amortization expense for the six months ended June 30, 2025 was $0.8 million, flat to the $0.8 million depreciation expense for the six months ended June 30, 2024.
Interest Expense
Interest expense for the six months ended June 30, 2025 was $0.7 million, flat to $0.7 million for the six months ended June 30, 2024. Flat interest expense to the comparable period was attributable to increased market interest rates offset by lower total interest-bearing debt under our term loan and line of credit.
Provision for Income Taxes
Income tax expense for the six months ended June 30, 2025 was $1.9 million compared to $1.0 million of income tax benefit for the six months ended June 30, 2024 due to higher taxable income, impacted by increased operating earnings and higher non-deductible expenses associated with the initial public offering process.
Liquidity and Capital Resources
We finance our operations and growth through a combination of cash provided by operating activities and borrowings under our revolving loan facility. Cash was $2.9 million at June 30, 2025, and $2.7 million at December 31, 2024. Unused availability under our line of credit was $15 million at June 30, 2025.
We believe that our existing cash and cash equivalents and our expected cash flows from operations and our credit facilities will be sufficient to meet our cash needs for at least the next 12 months. Over the longer term, our future capital requirements will depend on many factors, including our growth rate, the timing and extent of our dental services expenditures, the continuing market acceptance of our offerings, and any investments or acquisitions we may choose to pursue in the future. In the event that we need to borrow funds or issue additional equity, we cannot assure you that any such additional financing will be available on terms acceptable to us, if at all. In addition, any future borrowings may result in additional restrictions on our business and any issuance of additional equity would result in dilution to investors. If we are unable to raise additional capital when desired and on terms acceptable to us, our business, results of operations, and financial condition could be materially and adversely affected.
Cash flows from operating activities
Cash flows provided by operating activities were $9.2 million for the six months ended June 30, 2025, compared to $4.5 million for the six months ended June 30, 2024. The $4.7 million increase in cash flows provided by operating activities was due primarily to an increase from changes in operating assets and liabilities of $5.1 million, offset in part by lower addbacks for non-cash share based compensation of $0.5 million, and lower net income of $0.3 million.
Cash flows used in investing activities
Our investing activities are primarily related to capital expenditures for practice growth and expansion, replacing obsolescent assets, and adding capital improvements in existing facilities and technology related projects. Cash flows used in investing activities were $5.8 million and $2.8 million for the six months ended June 30, 2025 and 2024, respectively. Cash used in investing activities increased due to $1.8 million higher investments in property and equipment, primarily due to lower leasehold improvements at new and existing locations, and a $0.9 million increase in premiums paid on life insurance due primarily to lower contributions by participants in the non qualified deferred compensation plan, and higher consideration paid for business acquisitions ($0.3 million) due to the smaller size of acquired practices.
Cash flows used in financing activities
Cash flows used in financing activities primarily reflect our borrowings and repayments under our current and prior credit facilities which were refinanced in March 2024. Cash flows used in financing activities for the six months ended June 30, 2025 were $3.2 million due compared to cash generated from financing activities of $1.6 million for the six month period ended June 30, 2024. The $4.8 million change in finance cash usage reflecting increased checks issued in excess of cash of $1.3 million, cash paid for share repurchases of $0.4 million and net payments on debt of $1.0 million compared to a net drawdown of $2.2 million in the six months ended June 30, 2024.
Outstanding indebtedness
At June 30, 2025, and December 31, 2024, we had $12.9 million and $13.9 million outstanding under the respective term loans. At June 30, 2025, and December 31, 2024, we had $0 outstanding under the line of credit.
On March 27, 2024, we entered into a new credit agreement which amended the existing agreement and provided for a new $13 million term loan and amended the line of credit to $15 million from the prior $23 million. The term loan matures in March 2029 and carries an interest rate equal to the one-month SOFR rate plus 2.10%. The amended agreement also allows for an accordion right to increase the term loan by an additional $10 million. The amended line of credit extended the maturity from March 2024 to March 2027 and carries an interest rate equal to the one-month SOFR rate plus 2.00%.
The agreement requires that we comply with a minimum fixed charge coverage ratio and a total cash flow leverage ratio. In addition, the agreement contains standard negative covenants that limit our ability to undertake individual business combinations in excess of specified limits; incur and pay certain indebtedness; create, incur, or assume certain liens and negative pledges; sell, lease, convey, transfer or otherwise dispose of certain assets; liquidate or dissolve any of our subsidiaries; make certain loans and investments; make certain dividends and redemptions; and substantially change the nature of our business.
Proceeds from the term loan in March 2024 were used to pay off the line of credit. We were in compliance with all covenants specified in the credit agreement at June 30, 2025, and December 31, 2024 including the fixed charge coverage and cash flow leverage rations. We believe, based on our current financial forecasts and trends, that we will remain compliant with all covenants for the foreseeable future.
Our obligations under the credit facilities are secured by a first priority lien on substantially all of our tangible and intangible assets and the tangible and intangible business assets of the affiliated dental practices.
In addition to the aforementioned credit facilities, we have subordinated notes payable of $2.2 million due to related parties and certain current and former shareholders. The principal is due at maturity and interest is due quarterly through October 1, 2037. Interest is equal to the greater of 14% of the principal balance or an amount based on a formula using average dentist compensation or a formula based on total revenue. The subordinated debt effective interest rate for 2025 is 25.1% compared to 28.0% in 2024. The notes are secured by all of our business assets and the affiliated dental practices and are subordinated to the bank notes payable and the line of credit. The notes have significant prepayment obligations.
Deferred Compensation. Our deferred compensation was $69.7 million and $69.1 million at June 30, 2025 and December 31, 2024, respectively and primarily consists of a professional employee compensation plan and a non-qualified deferred compensation plan.
Professional Employee Compensation Plans — Our affiliated dental practices have Professional Employee Compensation Plans and executed employment agreements with certain dentists and professional employees.
These agreements provided for the creation of a deferred compensation balance for eligible employees in the event of separation from service. This deferred compensation plan was amended to cap the liability at its December 31, 2023 balance and is non-interest bearing. The deferred compensation balance is paid over a period of five years from the date of the participants separation from the group, subject to the limitation that the maximum amount we will be required to pay under the in each year is capped at 2% of the respective Company’s annual adjusted gross revenue, as defined in the agreement. At June 30, 2025, and December 31, 2024, the total deferred compensation liability related to the Professional Employee Compensation Plans was $48.2 million and $48.9 million, respectively.
Nonqualified Deferred Compensation Plans — We and our affiliated dental practices utilize nonqualified deferred compensation plans that provide participants the opportunity to defer compensation on a pretax basis. Benefit payments to participants are available upon termination of employment, disability, death, unforeseeable emergencies, a change-in-control event, as defined, or qualified planned in-service distributions.
The agreement provides eligible participants the option to receive payment in a lump sum distribution or up to five annual installments. Participants are immediately 100% vested in their voluntary deferred
compensation contributions, and are fully vested in employer credits after five years of service. Participant accounts are credited with deferred compensation contributions and earnings thereon, as defined. At June 30, 2025, and December 31, 2024, the total deferred compensation liability related to the nonqualified deferred compensation plan was $21.5 million and $20.2 million, respectively.
Results of Operations
The following table sets forth, for the periods indicated, our consolidated statements of operations and certain other information, each expressed as a percentage of total revenues. Amounts may not add to the totals due to rounding.
| |
|
|
Years Ended December 31,
|
|
|
($ amounts in thousands, except per share and other data)
|
|
|
2024
|
|
|
2023
|
|
|
Consolidated Statements of Operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
$ |
229,794 |
|
|
|
|
$ |
223,509 |
|
|
|
Cost of Services:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salaries and benefits
|
|
|
|
|
140,741 |
|
|
|
|
|
142,273 |
|
|
|
Dental supplies and Laboratory fees
|
|
|
|
|
17,093 |
|
|
|
|
|
17,121 |
|
|
|
Office occupancy
|
|
|
|
|
15,519 |
|
|
|
|
|
15,197 |
|
|
|
Other practice expenses
|
|
|
|
|
13,471 |
|
|
|
|
|
13,285 |
|
|
|
Depreciation
|
|
|
|
|
7,291 |
|
|
|
|
|
6,787 |
|
|
|
Total Cost of Services:
|
|
|
|
|
194,115 |
|
|
|
|
|
194,663 |
|
|
|
Gross Margin
|
|
|
|
|
35,679 |
|
|
|
|
|
28,846 |
|
|
|
General and administrative expenses
|
|
|
|
|
25,470 |
|
|
|
|
|
25,061 |
|
|
|
Depreciation and amortization
|
|
|
|
|
1,544 |
|
|
|
|
|
1,508 |
|
|
|
Operating income
|
|
|
|
|
8,665 |
|
|
|
|
|
2,277 |
|
|
|
Interest expense
|
|
|
|
|
(1,449) |
|
|
|
|
|
(1,208) |
|
|
|
Income before tax
|
|
|
|
|
7,216 |
|
|
|
|
|
1,069 |
|
|
|
Provision/(benefit for income tax)
|
|
|
|
|
2,853 |
|
|
|
|
|
(3,820) |
|
|
|
Net Income
|
|
|
|
$ |
4,363 |
|
|
|
|
$ |
4,889 |
|
|
Comparison of the Results of Operations for the Year Ended December 31, 2024 Compared to the Year Ended December 31, 2023.
Revenues
Total revenues for the year ended December 31, 2024, increased $6.3 million, or 2.8%, to $229.8 million from $223.5 million for the year ended December 31, 2023. General Dentistry revenue increased $2.6 million and multi-specialty dentistry revenue was higher by $3.7 million reflecting increased patient visits including from new acquisitions. Approximately $2.8 million of the increase was from recent acquisitions. Same Practice Revenue Growth increased approximately 1.6%, or $3.5 million from the prior year.
Cost of Services
Salaries and Benefits Salaries and benefits consist principally of affiliated dentist compensation, clinical team member compensation and related benefit costs. Salaries and benefits for the year ended December 31, 2024 was $140.7 million, a decrease of $1.5 million, or (1.1%), from $142.3 million for the year ended December 31, 2023, attributable to a reduction in bonus payments as the organization eliminated dentist shareholder bonus at the end of 2023 in relation to our reorganization under Park Dental Partners, Inc. In 2023, we recorded $6.0 million in dentist shareholder bonuses. No dental shareholder bonuses were recorded in 2024 as dentist shareholders received dividend distributions during the year under the updated legal structure completed in the fall of 2023. This decrease was partially offset by increased clinical team member costs.
Dental supplies and Laboratory Fees. Dental supplies and laboratory fees consists of variable costs associated with our affiliated dental practices providing dental services. Dental supplies and laboratory fees expense for the year ended December 31, 2024 was $17.1 million, flat from $17.1 million for the year ended December 31, 2023.
Office occupancy expenses. Office occupancy expenses include lease costs and other practice physical location expenses. Office occupancy expense for the year ended December 31, 2024 was $15.5 million, an increase of $0.3 million, or 2.1%, from $15.2 million for the year ended December 31, 2023, attributable to increased capacity expansion and slightly higher leasing costs.
Other practice expenses. Other practice expenses include MinnesotaCare provider taxes, software and subscription costs, repairs and maintenance costs, recruiting, travel and entertainments, insurance and other operating costs.
Other practice expense for the year ended December 31, 2024 was $13.5 million, an increase of $0.2 million, or 1.4%, from $13.3 million for the year ended December 31, 2023 as a result of $0.6 million higher provider tax, offset in part by lower filing and processing fees.
Depreciation encompasses depreciation associated with practice related assets such as dental equipment, and leasehold improvements, furniture and fixtures and computer equipment. Practice depreciation expense for the year ended December 31, 2024 was $7.3 million, an increase of $0.5 million, or 7.4%, from $6.8 million for the year ended December 31, 2023, attributable to increased capital investments in expanded production capacity within existing dental practices.
General and Administrative
General and administrative expenses consist of the costs of our centralized billing offices and call-centers, marketing and advertising expenses, regional management expenses, executive and senior management, and centralized functions, such as accounting, finance, team member relations, information technology, operations, real estate and other similar functions. General and administrative expense for the year ended December 31, 2024 was $25.5 million, an increase of $0.4 million, or 1.6%, to $25.1 million for the year ended December 31, 2023. The increase in cost is attributable to higher salaries and wages for administrative personnel and costs to support and position the organization for a public offering.
Depreciation and Amortization
Depreciation and amortization expenses are related to our non-practice related investments in long- lived assets such as computer equipment, furniture and fixtures, and amortization of intangible assets. Depreciation and amortization expense for the year ended December 31, 2024 was $1.5 million, flat to the $1.5 million depreciation expense for the year ended December 31, 2023.
Interest Expense
Interest expense for the year ended December 31, 2024 increased $0.2 million, or 20% to $1.4 million from $1.2 million for the year ended December 31, 2023. This increase was driven by a change in market interest rates and an increase in total interest-bearing debt under our term loan and line of credit.
Provision (Benefit) for Income Taxes
Provision (benefit) for income taxes. Income tax expense for the year ended December 31, 2024 was $2.9 million compared to $3.8 million of income tax benefit for the year ended December 31, 2023. The 2023 income tax provision included one-time items related to the initial recognition of deferred tax assets upon the conversion of certain legal entities from partnerships to C-Corporations as part our reorganization, resulting in a tax benefit and an increase in deferred tax assets. These 2023 tax items did not occur in 2024 and are not expected to recur in future periods.
Liquidity and Capital Resources
We finance our operations and growth through a combination of cash provided by operating activities and borrowings under our revolving loan facility. Cash was $2.7 million and $0.6 million at December 31, 2024 and 2023 respectively. Unused availability under our line of credit was $15 million at June 30, 2025.
We believe that our existing cash and our expected cash flows from operations will be sufficient to meet our cash needs for at least the next 12 months. Over the longer term, our future capital requirements will depend on many factors, including our growth rate, the timing and extent of our dental services expenditures, the continuing market acceptance of our offerings, and any investments or acquisitions we may choose to pursue in the future. In the event that we need to borrow funds or issue additional equity, we cannot assure you that any such additional financing will be available on terms acceptable to us, if at all. In addition, any future borrowings may result in additional restrictions on our business and any issuance of additional equity would result in dilution to investors. If we are unable to raise additional capital when desired and on terms acceptable to us, our business, results of operations, and financial condition could be materially and adversely affected.
Cash flows from operating activities
Cash flows provided by operating activities were $16.5 million for the year ended December 31, 2024, compared to $13.1 million for the year ended December 31, 2023. The $3.1 million increase in cash flows provided by operating activities was due primarily to an increase in addbacks for non-cash deferred tax expense ($5.6 million) due to the increase in deferred tax assets in 2023 by our legal entity reorganization, depreciation and amortization expense ($0.5 million) driven by increased investment in capital expenditures, and share based compensation ($0.5 million) due to an unrestricted stock grant in 2024, net of higher addbacks for increases in non cash surrender value of life insurance ($1.2 million), non-cash lease expense ($1.0 million) driven by timing differences between lease payments and expense recognition, lower net income ($0.5 million) and a $0.7 million decrease for the change in operating assets and liabilities.
Cash flows from investing activities
Our investing activities are primarily related to capital expenditures for practice growth and expansion, replacing obsolescent assets, and adding capital improvements in existing facilities and technology related projects. Cash flows used in investing activities were $7.7 million and $14.1 million for the years ending December 31, 2024 and 2023, respectively, lower by $6.4 million, due to lower investments in property and equipment ($3.1 million), primarily due to lower leasehold improvements at new and existing locations, lower premiums on life insurance premiums ($2.8 million) due primarily to lower contributions by participants in the non qualified deferred compensation plan, and lower consideration paid for business acquisitions ($0.6 million) due to the smaller size of acquired practices.
Cash flows from financing activities
Cash flows from financing activities primarily reflect our borrowings and repayments under our current and prior credit facilities which were refinanced in March 2024. Cash flows used in financing activities for 2024 were $6.7 million compared to cash from financing activities of $0.5 million, reflecting dividends paid in 2024 of $6.7 million for the first full year dividend distribution after the 2023 legal entity reorganization.
Outstanding indebtedness
At December 31, 2024 and 2023, respectively, we had $11.6 million and $0 outstanding under the respective term loans. At December 31, 2024 and 2023, respectively, we had $0 and $10.3 million, outstanding under the line of credit.
On March 27, 2024, we entered into a new credit agreement which amended the existing agreement and provided for a new $13 million term loan and amended the line of credit to $15 million from the prior $23 million. The term loan matures in March 2029 and carries an interest rate equal to the one-month SOFR rate plus 2.10%. The amended agreement also allows for an accordion right to increase the term loan by an additional $10 million. The amended line of credit extended the maturity from March 2024 to March 2027 and carries an interest rate equal to the one-month SOFR rate plus 2.00%.
The agreement requires, among other things, that we comply with a minimum fixed charge coverage ratio and a total cash flow leverage ratio. In addition, the agreement contains standard negative covenants that, among other things, limit our ability to undertake individual business combinations in excess of specified
limits; incur and pay certain indebtedness; create, incur, or assume certain liens and negative pledges; sell, lease, convey, transfer or otherwise dispose of certain assets; liquidate or dissolve any of our subsidiaries; make certain loans and investments; make certain dividends and redemptions; and substantially change the nature of our business.
Proceeds from the term loan were used to pay off the line of credit. We were in compliance with all covenants specified in the credit agreement at December 31, 2024 and 2023 including the fixed charge coverage and cash flow leverage ratios. We believe, based on our current financial forecasts and trends, that we will remain compliant with all covenants for the foreseeable future.
Our obligations under the credit facilities are secured by a first priority lien on substantially all of our tangible and intangible assets and the tangible and intangible business assets of the affiliated dental practices.
In addition to the aforementioned credit facilities, we have secured notes payable of $2.2 million due to certain current and former shareholders and related parties. The principal is due at maturity and interest is due quarterly through October 1, 2037. Interest is equal to the greater of 14% of the principal balance or an amount based on a formula using average dentist compensation or a formula based on total revenue. The effective interest rate for 2024 and 2023 was 28.0% and 28.1%, respectively. The notes are secured by all of our business assets and the affiliated dental practices and are subordinated to the bank note payable and the line of credit. These secured notes have significant prepayment restrictions whereby lender approval is required for any prepayment to occur, except for notes representing approximately 25% of the outstanding value may be prepaid by the Company upon the death of the holder.
Our primary sources of liquidity are cash provided by operations and available borrowings under our revolving loan facility. The support fees we receive from professional associations and their reimbursement to us of certain costs we incur on their behalf are our primary source of cash from operations. We do not, however, have direct recourse to the assets of affiliated dental practices, which consist primarily of cash and receivables from patients and third party payors. To the extent the affiliated dental practices do not generate sufficient revenues to pay a significant portion of our support fee, after paying for their expenses and reimbursing us for our costs, we may not have sufficient cash to meet our debt obligations.
Deferred Compensation — Our deferred compensation was $69.1 million on December 31, 2024 and $67.2 million on December 31, 2023 and primarily consists of a professional employee compensation plan and a non-qualified deferred compensation plan.
Professional Employee Compensation Plans — Our affiliated dental practices have Professional Employee Compensation Plans and executed employment agreements with certain dentists and professional employees. These agreements provided for the creation of a deferred compensation balance for eligible employees in the event of separation from service. In 2023, this plan was amended to cap the deferred contribution liability. At December 31, 2024 and 2023, the total professional employee compensation plans were $45.6 million and $46.1 million, respectively. No additional participants are expected to be added to the plan. There are 89 participants in this plan, with an average balance of $0.5 million per participant. This deferred compensation value is fixed and non-interest bearing. The deferred compensation balance is to be paid over a period of five years from the date of the participants separation from the groups, subject to certain limitation. The maximum amount we will be required to pay under the deferred compensation agreements in each year is capped at 2% of the respective Company’s annual adjusted gross revenue, as defined in the agreement.
Nonqualified Deferred Compensation Plans — We and our affiliated dental practices utilize nonqualified deferred compensation plans that provide participants the opportunity to defer compensation on a pretax basis. Benefit payments to participants are available upon termination of employment, disability, death, unforeseeable emergencies, a change-in-control event, as defined, or qualified planned in-service distributions. The agreement provides eligible participants the option to receive payment in a lump sum distribution or up to five annual installments. Participants are immediately 100% vested in their voluntary deferred compensation contributions. Participants are fully vested in employer credits after five years of service. Participant accounts are credited with deferred compensation contributions and earnings thereon, as defined. At December 31, 2024 and 2023, the total deferred compensation liability related to the nonqualified deferred compensation plan was $20.2 million and $17.5 million, respectively.
Finance Leases — We entered into a finance lease agreement in 2020 to fund the acquisition of furniture and fixtures and equipment. The cost of furniture and fixtures and equipment is included in property and equipment on the consolidated balance sheet and was approximately $0.2 million on December 31, 2024 and December 31, 2023. Accumulated amortization on the furniture and fixtures and equipment at December 31, 2024 and 2023, was approximately $0.2 million and $0.1 million. respectively. Amortization of assets under finance leases is included in depreciation within cost of services, and depreciation and amortization expense. The lease is secured by the furniture and fixtures and equipment. The effective interest rate of this lease is 2.38%.
Non-GAAP Financial Measures for the six month period ended June 30, 2025 and 2024.
Adjusted EBITDA. Adjusted EBITDA for the six month period ended June 30, 2025 was $13.0 million, an increase of $1.5 million, or 12.6%, from the $11.6 million Adjusted EBITDA for the six month period ended June 30, 2024.
Adjusted EBITDA Percentage. Adjusted EBITDA Percentage for the six month period ended June 30, 2025 was 10.7%, an 80 basis point increase from 9.8% for the six month period ended June 30, 2024 attributable primarily due to an improvement in Adjusted Gross Margin Percentage.
Adjusted Gross Margin. Adjusted Gross Margin for the six month period ended June 30, 2025 was $26.0 million, an increase of $2.1 million, or 9.0%, from $23.8 million for the six month period ended June 30, 2024, primarily attributable to increased revenue, and lower dental supplies and laboratory fees, net of higher cost of service Salaries and benefits. Measuring the year-over-year change in Adjusted Gross Margin allows us to evaluate the profitability of affiliated dental practices and their performance. It also influences our decision-making process related to cost management strategies and helps us with evaluating the effectiveness of those strategies.
Adjusted Gross Margin Percentage. Adjusted Gross Margin Percentage for the six month period ended June 30, 2025 was 21.3%, a 100 basis point increase from 20.3% for the six month period ended June 30, 2024, primarily reflecting lower dental supplies and laboratory fees and increased cost of service Salaries and benefits at a rate lower than increased revenue.
General and Administrative Expenses Percentages. General and Administrative Expense Percentage for the six month period ended June 30, 2025 was 11.7%, a 70 basis point increase from 11.0% for the six month period ended June 30, 2024, primarily attributable to higher professional fees, and salaries and wages for administrative personnel to support and position the organization for its public offering. Measuring the year-over- year change in general and administrative expenses as a percentage of revenues allows us to evaluate the efficiency of our support functions. It also influences our decision-making process related to cost management strategies and helps us with evaluating the effectiveness of those strategies.
Non-GAAP Financial Measures for the year ended December, 2024 and 2023.
Adjusted EBITDA. Adjusted EBITDA for the year ended December 31, 2024 was $19.4 million, a decline of $0.2 million from the $19.6 million Adjusted EBITDA for the year ended December 31, 2023.
Adjusted EBITDA Percentage. Adjusted EBITDA Percentage for the year ended December 31, 2024 was 8.4%, a 40 basis point decline from 8.8% for the year ended December 31, 2023, attributable primarily due to a decline in the Adjusted Gross Margin Percentage.
Adjusted Gross Margin. Adjusted Gross Margin for the year ended December 31, 2024 was $44.0 million, an increase of $0.9 million, or 2.2%, from $43.1 million for the year ended December 31, 2023, primarily attributable to increased revenue. Measuring the year-over-year change in Adjusted Gross Margin allows us to evaluate the profitability of affiliated dental practices and their performance. It also influences our decision-making process related to cost management strategies and helps us with evaluating the effectiveness of those strategies.
Adjusted Gross Margin Percentage. Adjusted Gross Margin Percentage for the year ended December 31, 2024 was 19.2%, a 10 basis point decrease from 19.3% for the year ended December 31, 2023, primarily reflecting a small increase in clinical team member costs and benefits as a percentage of revenue.
General and Administrative Expenses Percentages. General and Administrative Expense Percentage for the year ended December 31, 2024 was 11.1%, a 10 basis point decrease from 11.2% for the year ended December 31, 2023, attributable to lower professional fees, partly offset by higher compensation and benefits including shared based compensation. Measuring the year-over- year change in general and administrative expenses as a percentage of revenues allows us to evaluate the efficiency of our support functions. It also influences our decision-making process related to cost management strategies and helps us with evaluating the effectiveness of those strategies.
Critical Accounting Estimates
This discussion and analysis of financial condition and results of operations is based upon our consolidated financial statements, which have been prepared in accordance with GAAP. To prepare our financial statements in conformity with GAAP, we must make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses in the reporting period. Our actual results may differ from these estimates. We have provided a summary of our significant accounting policies in our consolidated financial statements included elsewhere in this prospectus. We describe below those accounting policies that require material subjective or complex judgments and that have the most significant impact on our financial condition and results of operations. Our management evaluates these estimates on an ongoing basis, based upon information currently available and on various assumptions management believes are reasonable as of the date on the front cover of this prospectus.
Accounts Receivable and Revenue Recognition. Accounts receivable include amounts due from patients and third-party payors, including indemnity and preferred provider organizations, and government plans. Most accounts, other than for orthodontic treatments, are due as services are provided. We estimate and typically collect patient payments at the time of service based on the insurance plan fee schedule, deductible provisions and list of covered benefits for each plan. If the proper patient payment amount is not fully collected at the time of service, the patient will be directly billed for the difference. Fees for any services not collected same-day are setup as an account receivable and established on such date of service. Patient accounts receivable are uncollateralized patient obligations that are stated at the amount we expect to collect from outstanding balances. These obligations are primarily from patients, most of whom are insured under third-party payor agreements. Park Dental Partners, Inc provides billing and collection services on behalf of the affiliated dental practices. We typically bill third-party payors on the patients’ behalf, or if a patient is uninsured, the patient is billed directly. Once claims are settled with the third-party payors, patients are billed for the remaining balance or reimbursed if overpayment was received. Payments on accounts receivable are applied to the specific claim identified on the remittance advice or statement. Park Dental Partners, Inc has the right to apply finance charges on patient past due accounts 90 days or older.
Dental services revenue is generally recognized as services are provided and reported at estimated net realizable amounts due from patients, third party payors and others for services rendered. Through our billing system, we record and report dental service revenue for each patient at rates that reflect the amount expected to be collected, based on unique fee schedules for each insurance plan which include pre-determined contractual rates with the insurance providers and co-payments and deductibles to be received from patients.
Our affiliated dental practices have agreements with third-party payors that typically provide for payments at amounts less than our established charges. Payment arrangements with major third-party payors consists of the following: (1) Medicaid: services are generally paid at prospectively determined rates per charge, per occasion of service, or per covered member and (2) Commercial insurance: payment agreements with certain insurance carriers provide for payment using prospectively agreed contractual rates per charge, discounts from established charges, and fee schedules.
We bill third party payors at our usual and customary rates and record an estimated allowance for price concessions and to align the net receivables presented to our best estimate of contractual rates to adjust for amounts that we expect will not be collected based on the contracts with the third party payors.
The process of estimating the ultimate amount of revenue to be collected is subjective and requires the application of judgment based on many factors, including contractual reimbursement rates, the determination
of covered and uncovered benefits under the insurance plans and other relevant information. As a result of the inherent complexity of these calculations, our actual revenues, net income, and accounts receivable could vary from the amounts reported. For fiscal 2024, a one percent change in contractual allowances, with no offsetting changes to billings or procedure mix, would impact Revenue by approximately 20 basis points.
Accounts receivable are presented net, and are reduced by contractual allowances and implicit price concessions that reflect our best estimate of the amounts that will not be collected. We calculate revenue and associated receivables utilizing contractual terms of third-party payer reimbursement agreements. In addition, we estimate uncollectible amounts, primarily for uninsured patients and amounts patients are personally responsible for, through a reduction in revenue and accounts receivable based on our assessment of historical collection experience, trends for each of its major payor sources of revenue, and the current status of the aging of individual accounts. Balances that are still outstanding after we have used reasonable collection efforts are written off. Write-offs have historically trended less than one (1%) percent of revenue. For fiscal 2024, a one percent change in write-offs would impact Gross profit by less than $0.1 million.
Receivables are presented in the accompanying consolidated balance sheet, net of allowances for contractual adjustments, concessions, and reserve for uncollectible accounts. At June 30, 2025 net accounts receivable were $7.2 million, after contractual allowances, concessions, and reserves for uncollectible accounts of $5.0 million. At December 31, 2024 net accounts receivable were $7.4 million, after contractual allowances, concessions, and reserves for uncollectible accounts of $6.7 million, and as of December 31, 2023 were $8.9 million, after contractual allowances, concessions, and reserves for uncollectible accounts of $3.2 million. The contractual allowance and reserve for uncollectible accounts represents 34.7%, 47.7% and 26.4% of gross accounts receivable, at June 30, 2025, December 31, 2024 and 2023, respectively.
The overall increase in the allowance at December 31, 2024 is primarily attributable to our transition to a new dental practice management and billing system in 2024 which had reduced automation functionality for applying contractual allowances to clear the remaining billing, and for providing monthly statements and overdue collection notices. The delays resulted in customers not being billed until after substantial time had passed from the date services were initially provided. This resulted in increased uncertainty regarding our ability to collect on outstanding receivables from the period impacted by the decrease in automation and the larger allowance recognized. In order to estimate increase in the allowance as a result of the delays in billing and sending overdue collection notices, we utilized historical collection rates for similarly aged receivables. In 2025, we resolved the issues which had resulted in delays in billing customers and sending overdue notices.
Goodwill is assessed for impairment annually and more frequently if events or changes in circumstances indicate that the asset might be impaired. The impairment test is performed at the reporting unit level, which has been determined to be the consolidated entity level. When testing goodwill for impairment, the Company may first assess qualitative factors to determine if it is more likely than not the carrying value of a reporting unit exceeds its estimated fair value. During a qualitative analysis, the Company considers the impact of changes, if any, to the following factors: macroeconomic, industry and market factors; cost factors; changes in overall financial performance; and any other relevant events and uncertainties impacting a reporting unit. If the qualitative assessment indicates goodwill impairment is more likely than not, additional quantitative analysis is performed. The Company may also elect to skip the qualitative testing and proceed directly to the quantitative testing. The annual impairment test for goodwill is completed as of October 1, each fiscal year
The fair values of the Company’s reporting unit is determined by using the income approach, discounting projected future cash flows based on management’s expectations of the current and future operating environment. The rate used to discount projected future cash flows reflect a weighted average cost of capital based on the Company’s industry, capital structure and risk premiums.
Fair value calculations include significant judgments and estimates related to the reporting unit’s projected weighted average cost of capital, future revenue, profitability, cash flows and fair values of assets and liabilities. When preparing these estimates, management considers the reporting unit’s historical results, current operating trends and specific plans in place. These estimates are impacted by variable factors, including inflation and the general health of the economy. The Company has sufficient current and historical
information available to support its judgments and estimates. However, if actual results are not consistent with the Company’s estimates, future operating results may be materially impacted.
We did not record an impairment in fiscal 2024 as a result of our review. The fair value of our reporting unit was substantially in excess of its carrying value. The Discount rate used in this analysis was 9.5 percent to discount projected future cash flows, and growth rates that ranged between 2 percent and 4.5 percent.
We performed sensitivity analyses on the fair value resulting from the discounted cash flow analysis utilizing alternate assumptions that reflect reasonably possible changes to future assumptions. Based upon our analysis, a 100 basis point increase in the discount rate utilized in the discounted cash flow analysis would not have resulted in failing the impairment test. Additionally, a 100 basis point decrease in the estimated perpetual sales growth rates utilized in the discounted cash flow analysis would not have resulted in failing the impairment test.
Equity-Based Compensation Plans. The 2023 Restricted Stock Plan allows us to grant equity-based awards to certain employees, consultants and directors. We have granted our employees equity-based incentive awards in the form of restricted shares. We measure equity-based compensation expense for all equity-based awards granted based on the estimated fair value of those awards on the date of grant. The fair value of the incentive units at each grant date is determined using market information, as discussed further below. We recognize the impact of forfeitures in equity-based compensation expense when they occur.
The restricted stock vest 25% upon the closing of an initial public offering of our Common Stock with the remaining grant vesting at the rate of 6.25% on each subsequent calendar quarter for the following 12 quarters. In the event of our change in control, the restricted shares vest immediately upon the date of the change of control. Stock based compensation cost to employees is measured at the date of grant, based on the calculated fair value of the stock-based award, and will be recognized as expense over the requisite service period (generally the vesting period of the award). The restricted stock does not vest in part or in whole until or unless there is a completed initial public offering, or change in control event.
The fair value of stock-based awards issued by us is determined as of the grant date.
The fair value of our equity-based awards has historically been determined by our Board, with input from management and third-party valuations, as there was no public market for our Common Stock.
In the absence of a public trading market of our Common Stock, our Board considered numerous objective and subjective factors to determine the best estimate of the fair value of our Common Stock at each incentive unit grant date, including:
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Independent third-party valuation of our shares
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the lack of marketability of our shares
In valuing our shares, the Board determined the value using the income, market and cost approach valuation methods.
The income approach estimates value based on the present worth of future economic benefits to be derived from ownership. Value indications were developed by discounting expected future net cash flows to their present worth at market-based rates of return. The market approach estimates value based on applying valuation multiples derived from an analysis of recent comparable sales or offerings and applying similar ratios to our financial results. The cost approach estimates value based on the summation of the fair market values of the organization’s net assets.
In the valuation of shares, the income, market and cost approach were considered and weighted, as applicable, based on their appropriateness considering relevant facts and circumstances.
We also considered an appropriate discount adjustment to recognize the lack of marketability and liquidity due to the fact that owners of private companies do not have access to trading markets similar to shareholders of public companies. The discount for marketability was determined using the quantitative marketability discount model.
Application of these approaches involves the use of estimates, judgments, and assumptions that are highly complex and subjective, such as those regarding our expected future revenue, expenses, and future cash flows, discount rates, discount for lack of marketability, market multiples, the selection of comparable companies, and the probability of possible future events. Changes in any or all of these estimates and assumptions or the relationships between those assumptions impact our valuations as of each valuation date and may have a material impact on the valuation of our restricted shares.
After the completion of this offering, we expect to use the closing price of our equity in the public market on the date of grant to determine the fair value of our awards. Future expense amounts for any particular period could be affected by changes in our assumptions or market conditions.
BUSINESS
Overview
As a dental resource organization (“DRO”) operating through Park Dental Partners, Inc. we provide comprehensive business support services including clinical team members, administrative personnel, facilities and equipment to our affiliated general and multi-specialty dental practices throughout Minnesota and Wisconsin. Our network of affiliated dental practices employs over 200 dentists across 85 practice locations, was ranked as one of Minnesota’s largest private companies by revenue by the Minneapolis/St Paul Business Journal, in June 2025. Our clinical support team includes over 900 hygienists, dental assistants, and patient care coordinators that support affiliated dentists in operating their dental practices. Our network of affiliated dental practices has been operating for over fifty years, beginning with the establishment of the general dentistry group in 1972. The mission of our affiliated dental practices since inception has been to ensure patients enjoy the benefits of a lifetime of good oral health. This mission continues to be the driving force behind our organization today.
Our network of affiliated dental practices provides both general and specialty dental services, including oral surgery, periodontics, pediatric dentistry, prosthodontics, endodontics, and orthodontics, under long-term agreements with initial terms of 30-years, with automatic 5-year renewals. We have established a significant footprint and brand awareness in our current markets. Our revenues, derived primarily from our affiliated dental practices’ provision of dental services, were approximately $122.0 million and $117.5 million for the six months ended June 30, 2025, and 2024, respectively, and $229.8 million and $223.5 million in 2024 and 2023, respectively.
We have steadily grown by adding new dentists and team members, expanding existing practices, implementing operating efficiencies, and by acquiring existing practices. Our organic expansion includes opening de novo practices, which are new dental practices in existing or new markets. Since the start of calendar 2014, we have acquired 40 practices and opened 11 de novo practices. On average, the consideration paid to acquire these 40 dental practices is approximately $850 thousand. On average, de novo practices require capital investments of approximately $800 thousand per locations, and are cash flow positive within approximately six months of opening. We attribute this success to our established model that streamlines day-to-day dental practice operations by providing key business and administrative resources, allowing dentists and team members to focus on patient care. We plan to expand our existing general and multi-specialty dental brands, establishing a group of successful, respected dental practices.
Dentists hold a majority interest in our organization, which we believe is a key differentiator between our model and those of our competitors. Our model provides our affiliated dentists with significant organizational input because our affiliated dentists, who are majority shareholders in the business, are directly involved in our governance through their right to appoint three directors to the Board of Directors. We believe this right helps ensure that our affiliated dentists maintain a professional voice in governance that helps focus the organization on ensuring patients enjoy the benefits of a lifetime of good oral health. We believe this compelling model allows for greater input and provides enhanced stewardship for dentists, which assists with attracting and retaining dental professionals and serves as a catalyst for future growth. By contrast, we believe traditional dental organization ownership structures, many of which are funded by private equity, introduce constraints and concessions that limit dentists’ clinical autonomy and can restrict or omit their professional voice in governance.
We were incorporated in Minnesota in 2023, combining the administrative resources of PDG, P.A. (Park Dental), Dental Specialists of Minnesota, PLLC (The Dental Specialists) and Orthodontic Specialists of Minnesota, PLLC (The Dental Specialists Orthodontics). These professional organizations were formed in Minnesota and have operated continuously since their respective dates of formation. We have long-term agreements to provide administrative services with each affiliated dental practice. Additionally, eighty-four affiliated dentists are shareholders in Park Dental Partners, Inc. We believe the ownership consolidation will further our ability to attract dentists and staff and grow through further affiliations with individual dentists and dental group practices.
The Dental Services Industry
Overview
The U.S. dental services industry remains a large, growing, and fragmented sector. According to 2023 estimates from the National Health Expenditure Data, Centers for Medicare & Medicaid Services (“CMS”) the U.S. dental services market is approximately $173 billion, and is expected to grow 4.9% annually to over $266 billion by 2032. The industry continues to be more consumer-driven compared to other healthcare sectors, with a significant portion of dental expenditures paid out-of-pocket by patients. This consumer-driven nature and the high prevalence of small, independent practices limit the opportunities for achieving economies of scale found in larger healthcare systems.
Factors Contributing to Continued Growth of the Dental Services Industry
We believe that demand for dental services will continue to grow as a result of the following key drivers.
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Aging Population: The U.S. Census Bureau projects that the population aged 65 and older will increase by about 43% from 2020 to 2040 (U.S. Census Bureau, 2020). As this age group grows and people retain their natural teeth longer, the demand for restorative procedures such as implants, crowns, and dentures is expected to rise significantly.
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Increased Awareness of Oral Health: Awareness of the connection between oral health and overall health has intensified. The American Academy of Periodontology notes that periodontal disease is linked to systemic conditions like cardiovascular disease, leading to increased focus on preventive and therapeutic dental care (American Academy of Periodontology, 2024). Public health campaigns and research continue to emphasize the importance of periodontal maintenance, boosting demand for dental services.
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Advancements in Dental Technology: Technological innovations in dental care are enhancing efficiency and comfort. The integration of AI, 3D printing, digital imaging, and advanced laser technology is making dental procedures more precise and less invasive. These advancements are expected to drive greater patient demand for both general and specialized dental treatments, including cosmetic procedures which continue to gain popularity.
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Growth in Dental Insurance Coverage: The expansion of dental insurance plans continues, with more employers offering dental benefits as part of their health packages. The National Association of Dental Plans reports an increase in the number of individuals covered by dental insurance, which is increasing access to dental care and leading to higher utilization of preventive and elective procedures (National Association of Dental Plans, 2024). Additionally, more comprehensive dental insurance plans are emerging, which may further boost the frequency of visits and the range of services utilized. Government sponsored plans also continue to grow, as the ADA reported a $4 billion increase in Medicare dental spending and a $2 billion increase in Medicaid dental spending in 2023.
Overall, the U.S. dental services industry is poised for continued growth, driven by demographic shifts, technological advancements, increased health awareness, and expanding insurance coverage.
Differentiating Factors from the Broader Healthcare Services Industry
The dental services industry is notably distinct from the broader healthcare services industry due to its consumer-driven nature and payment structure. As of recent data, approximately 38.9% of dental services payments are out-of-pocket by patients, compared to 12.3% for other medical services. Private sources continue to cover a large portion of dental financing, comprising about 44.3% of all dental expenditures, while government programs like Medicaid and Medicare account for only about 16.8% (Centers for Medicare & Medicaid Services, 2024).
The trend toward increased dental insurance coverage is evident. According to the National Association of Dental Plans (NADP), the number of Americans covered by dental benefit plans rose to approximately 293 million in 2023, up from 191 million in 2013 (National Association of Dental Plans, 2024). This increase in coverage has led to higher utilization of dental services, as more people have access to benefits that reduce out-of-pocket costs.
From a provider’s perspective, the dental services sector remains highly fragmented compared to other healthcare sectors. The American Dental Association (ADA) Health Policy Institute, approximately 75% of dentists work as sole practitioners or in practices with just one other dentist. This fragmentation contrasts with other healthcare sectors, where consolidation into larger practice groups and networks is more common. The high capital investment required to start and maintain a dental practice, coupled with rising operational costs, is leading some dentists to align with Dental Support Organizations (DSOs) and practice management groups for support and economies of scale.
Overall, these factors highlight the unique dynamics of the dental services industry, including its reliance on consumer payment, increasing insurance coverage, and persistent fragmentation among providers.
The Dental Support Organization Model
A dental support organization, which includes dental resource organizations, typically provides a suite of non-clinical functions, including marketing, staffing, scheduling, and billing, along with access to technology, facilities and equipment. This model allows dentists to focus on delivering high-quality care and professional development while increasing patient capacity. As of 2024, while dental support organizations support a growing portion of the dental industry, they still represent a smaller segment compared to independent practices. The following factors contribute to the expanding role of dental support organizations:
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Access to Underserved Demographic Sectors: The dental support organization model helps affiliated dental practices reach underserved populations by offering payment plans and financing alternatives that alleviate out-of-pocket expenses. According to the American Dental Association (ADA), cost is a major barrier to dental care, and the ability to provide flexible payment options helps attract and retain patients (ADA, 2024). Additionally, dental support organizations often employ retail-branded strategies to enhance visibility and attract new patients through comprehensive marketing efforts.
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Decreased Complexity and Cost of Establishing a Dental Practice: Recent dental school graduates face significant financial challenges. The American Dental Education Association reports that the average dental student debt in 2022 is approximately $300,000, nearly double the amount reported in 2006. Establishing a dental practice, which can cost upwards of $500,000, presents a considerable financial hurdle. Dental support organization models reduce or eliminate the need for large capital investments, providing new and transitioning dentists with marketing support, management systems, and training, thus lowering barriers to entry.
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Lower Operating Cost Structure: For solo practitioners, operating costs are typically approximately 22% more than group practices such as those supported by dental support organizations due to economies of scale achieved through shared infrastructure, bulk purchasing, and centralized marketing. This cost efficiency allows dentists to offer competitive pricing and maintain strong patient relationships.
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Flexible Work Opportunities:. According to the ADA, dental support organizations can better accommodate part-time schedules by providing a network of affiliated dentists to share shifts and manage patient flow.
In summary, the dental support organizational model is becoming increasingly relevant in the dental industry. By addressing financial barriers, providing operational efficiencies, and accommodating evolving workforce demographics, these organizations are poised to play a larger role in the dental sector’s future.
Our Competitive Strengths
We believe the following competitive strengths contribute significantly to our success and position us for growth:
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History of Growth Through Affiliated Dental Practices/Organization Support. We have over 50 years of experience supporting dental practices, and in that time have grown revenues from zero to over $229 million. Through centralized management, economies of scale, advanced technology, and
standardized clinical practices, we enable our practices to streamline operations, enhance patient care and drive growth and operating profits. This support has enabled the dental practices we support to grow from 192 dentists at the commencement of 2023 to 206 at the end of 2024, a 7% increase.
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Patient Centered Quality Care. For over 50 years, our affiliated dental practices have focused on patient-centered care and have been known to be leaders in oral health in the communities they serve, having been voted the Star Tribune Reader’s Choice — Minnesota’s Best “Gold Best Dentist” in each of the past 4 years. Patients at our affiliated dental practices typically return for preventative care treatment twice per year. As a result, our revenues are driven by a highly recurring patient base. In 2024, 89.2% of our general dentistry patients returned for subsequent appointments. As a result, our revenues are driven by a highly recurring patient base. Our affiliated dental practices have achieved industry-leading patient satisfaction scores with a 97th percentile ranking for 2024 in national Press Ganey Surveys, our practices are accredited with the Accreditation Association for Ambulatory Health Care (AAAHC) and we continually measure and seek to improve through internal quality assurance processes including on-going training, peer review and policy compliance assessments that assist our affiliated dental practices with delivering consistent care that benefits patient health outcomes.
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Leading market positions in large and growing markets. We support 85 practice locations in the states of Minnesota and Wisconsin. Our largest concentration of affiliated dentists is in Minnesota with 201 affiliated dentists, with most operating in the Minneapolis and St. Paul metro area. With more than 330,000 active patients, we hold a leading market position based on market share of active dental patients within the state of Minnesota. The concentrated presence of our affiliated dental practices within the markets we serve increases our internal patient referrals and makes our external marketing efforts more efficient and cost effective. The scale it provides enhances patient retention and new patient acquisition. Patient growth is supported primarily by “word of mouth” referrals by existing patients and is supplemented by marketing efforts online and in surrounding communities. The American Dental Association reports that nearly two-thirds (63.7%) of the new patients in general dentistry practices are referred by existing patients.
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Established infrastructure driving a low-cost operating structure. Our infrastructure creates a low-cost operating structure by centralizing administrative functions. We actively manage the supply chain of our affiliated dental practices, which allows us to leverage our purchasing volume to obtain favorable pricing from third party vendors. In addition to direct cost savings, we achieve operational efficiencies by sharing best practices across locations and provide centralized information technology support, advanced software applications, human resources, marketing, regulatory compliance, patient communication services, patient billing and other administrative services.
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Proven track record of acquiring and opening de novo practices with attractive unit economics. Since the start of calendar 2014, we have acquired 40 practices and opened and successfully operated 11 de novo practices. The acquisition of practices and roll-out of de novo practices allows us to leverage our existing management team and operating costs, utilize our knowledge of the local market to secure the most attractive locations, and to increase practice density in a market to drive additional operating and marketing efficiencies. We have internally funded all of our acquisitions which typically cost approximately $850 thousand, and funded the construction of our de novo practices which typically require capital investment of approximately $800 thousand. On average, our de novo practices have typically become cash flow positive within approximately six months.
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Innovative Governance Model for Professional Voice. We have created an innovative organizational structure that we believe provides an optimal environment for dentists to practice. We believe this structure will allow our affiliated dental practices to retain and attract dentists, our most valuable asset. Which in turn, will drive future growth for our organization. Our structure provides practicing dentists with clinical control over their practice and significant influence in the governance of the organization. Practicing dentists appointed to an advisory entity will appoint three directors to our seven person Board of Directors. We believe this unique structure is a key pillar of future growth through dentist recruitment and practice acquisition. We believe it will also reduce dentist turnover and ensures a long-term focus on quality care. Our leadership will continue to prioritize patient care and team member satisfaction, focusing on the same goals that have driven our affiliated dental
practices success over the past 50+ years. This stability helps ensure that our organization can pursue growth and innovation while fostering a familiar and supportive atmosphere for dentists, team members, and patients.
•
Dyad Leadership Model. We operate under a dyad leadership model where clinical leaders partner with administrative leaders to oversee support functions. This is a best-in-class healthcare operating model which has achieved both industry-leading patient satisfaction scores with a 97th percentile ranking for 2024 in national Press Ganey Surveys, and accreditation with the Accreditation Association for Ambulatory Health Care (AAAHC), allows each dentist to focus on core competencies to create a harmonious, patient- centered healthcare experience. With over 40 dentists actively involved in some leadership capacity in the business, this partnership ensures that our care is both clinically excellent and operationally efficient, always prioritizing the well-being and satisfaction of our patients. This collaboration ensures that every decision, from daily operations to strategic planning, is deeply rooted in our commitment to patient care.
•
Experienced and Proven Leadership Team. We are led by an experienced team of executives and dental professionals with an average of over 25 years of experience in successfully growing and supporting our affiliated dental practices. Our chief executive officer has served in leadership capacities within the organization for over two decades, steering executive and operational functions, and leading the growth of the group from 99 dentists to over 200 dentists with a clinical support team including over 900 hygienists, dental assistants, and patient care coordinators. In addition, our chief executive officer works in close collaboration with key dentist leaders in all facets of the governance and management of the organization.
Our Growth Strategy
Our growth strategy is built upon the following elements of our business strategy:
•
Leverage proven track record. We have a proven track record of achieving growth in revenues from existing locations. Same Practice Revenue increased by 3.6% for the six months ended June 30, 2025, compared to 3.4% for the six months ended June 30, 2024. Same Practice Revenue increased year over year by 1.6% and 6.3% for the years ended December 31, 2024 and 2023, respectively. We have also grown the number of practice locations within our organization from 60 to 85 since 2014 and the number of dentists within our affiliated dental practices has increased from 136 to 206 over the same timeframe. We plan to continue to support and assist our practices to build additional practice revenue by:
•
adding dentists and hygienists;
•
increasing patients’ completion of their diagnosed dental treatment plan;
•
introducing new specialty services;
•
improving dentist and hygienist efficiency and productivity through technology and workflow enhancements, and
•
opening de novo practices in existing markets.
Based on our experience in providing support to dental practices, we believe we have the capacity to more than double the number of dentists we support within our existing markets alone. U.S. dental services market growth is projected at 4.9% annually according to the National Health Expenditures Data, Centers for Medicare & Medicaid Services (CMS). If we are able to grow at industry growth rates and succeed in our practice acquisition strategy, and absent other circumstances, we currently believe that we will double the size of dentists we support within a seven to 10-year timeframe.
We believe preventive, general and specialty care offer substantial opportunities for growth within our Metropolitan Statistical Areas (“MSA”). This growth is driven by several factors, including increasing awareness of oral health’s connection to overall health, demographic shifts such as aging populations, and a growing demand for cosmetic and elective dental services. Additionally, as patient demand for specialized services such as oral surgery, endodontics, and prosthodontics increases, we
are well-positioned to capture additional market share through strategic investments in specialist recruitment, training, and service delivery models.
We also intend to focus on expanding our presence primarily in medium and large MSAs as delineated by the U.S. government through the U.S. Office of Management and Budget (OMB). We consider medium MSAs as metropolitan areas having populations between 250,000 and 999,999, while large MSAs are metropolitan areas with populations of 1,000,000 or more. These MSAs align with our strategic priorities by offering potential expansion areas with, favorable demographic trends, and an unmet need for accessible, high-quality dental care. We estimate there are approximately 230 medium and large MSAs across the United States that meet our criteria. These markets closely align with our core competencies in supporting preventive and comprehensive dental services, fostering a model of care that emphasizes long-term patient relationships and community integration. We are targeting the expansion around our core MSA’s today, as well as select national markets, which will be opportunistic based on acquisition opportunities, however we are unable to determine where future acquisition opportunities may arise, the timing of any opportunities, and we are also unable to quantify or disclose the number of future MSAs that may be targeted.
•
Leveraging our scalable infrastructure to improve operating margins. We will continue to leverage our infrastructure and the local market presence of our affiliated dental practices to obtain favorable pricing from vendors and suppliers and to secure leases with attractive terms. We also plan to continue to streamline local practice administrative work, such as patient scheduling, billing, collections, payroll and accounting. We have built an infrastructure that supports organic and inorganic practice growth, which will allow us to further leverage our operating costs. In addition, our scalable and integrated information systems technology tracks daily operational and financial performance by practice so that we can identify and respond quickly to changes in specific markets and continue to improve administrative efficiency and productivity.
•
Selectively acquiring or affiliating with existing dental practices. We have a proven ability and intent to grow by entering into exclusive, long-term support agreements and asset-purchase agreements with existing dental practices. Our ability to identify, acquire, integrate and affiliate with independent practices in a cost-effective manner will be an important element in our continued growth and our geographic expansion into other states. We continually evaluate and selectively pursue strategic growth opportunities, as we believe there is significant demand for our patient-centric care model in communities across the country. We intend to enter new markets through acquisition and partnership opportunities where we are confident that we can employ our best practices and established model to grow our market share. By focusing primarily on medium and large MSAs, our disciplined growth strategy promotes scalable, sustainable expansion while maintaining our commitment to supporting the delivery of high-quality care in a caring manner. This focus will enable us to address growing patient needs while solidifying our leadership in the dental services industry.
Affiliated Dental Groups
We provide business support services to affiliated dental practices operating across 85 practice locations. Affiliated dental practices are operated by legal entities organized under state laws as professional corporations. Each entity employs or contracts with dentists or specialists to provide dental services in multiple locations. Each entity has one owner, who is an affiliated licensed dentist. We do not own capital stock of any entity. We have support agreements with the entity owner pursuant to which the entity owner is prohibited from selling, transferring or encumbering the ownership interests of the entity to a third party without our consent. In addition, our agreements with the entity give us the right to designate the licensed dentist to whom the owner of an entity must sell his or her ownership interest in the entity. We can designate a licensed dentist upon notice to the entity owner of our intent to exercise our right to require the transfer of an entity’s ownership interest.
Our chief clinical officer, general practices, Dr. Christopher Steele, is the holder of the capital stock of PDG, P.A. (dba Park Dental) which provides dental services at 57 dental practice locations as of December 31, 2024, representing approximately 74% and 75% of our total revenues for the years ended December 31, 2024 and 2023, respectively. In addition, our chief clinical officer, specialty practices, Dr. Alan Law, is the holder of the capital stock of Dental Specialists of Minnesota, PLLC (dba The Dental Specialists) and
Orthodontic Specialists of Minnesota PLLC (dba TDS Orthodontics) which provide dental specialty services at 28 dental practice locations as of December 31, 2024, representing approximately 26% and 25% of our total revenues for the years ended December 31, 2024 and 2023, respectively.
Our rights with respect to the transfer of the ownership interests in, and designation of the owner of, the entity further the stability of the entity by assuring the integrity of its legal structure and its ability to sustain ongoing operations in the event of a change of ownership. If an event occurs that requires or leads to a change in the ownership of the entity, such as the retirement or death of the entity owner or the decision of an entity owner to leave the organization, these rights allow for a prompt, efficient and uninterrupted change of ownership, thereby sustaining the operations of the entity and preserving continuity for the dentists or specialists, their clinical staff and their patients.
Notwithstanding our rights regarding the transfer of the stock of entities and the designation of owner of the entity, we do not own any capital stock of any entity and we do not have any control over the clinical or professional decision making of the entities or their dentists or specialists. Under the terms of our administrative resources agreements, each entity retains full responsibility for all clinical decisions made by it and its professional staff and all other activities that are within the scope of the practice of dentistry, and we do not perform those activities. The ability of the entities and us to operate under our administrative resources agreements is dependent on our mutual compliance with these corporate practice restrictions. We believe that the stock transfer restrictions in place between the owners of the respective entities and us are consistent with corporate practice restrictions because we can designate only individuals that are permitted to be entity owners under applicable state law and we can never have an ownership interest in the entity. In addition, the transfer restrictions and our rights regarding the designation of the entity owner does not allow us in any way to control the clinical decisions of the dental practice and its professionals.
The practices generally compensate their dentists on a production-based model under which an individual dentist receives a percentage of the revenues attributable to the dentist. In addition, dentists in leadership roles are compensated by either a salary or stipend depending upon the level of their role including, chief clinical officers, regional dental directors, specialty clinic directors, quality of care dentists, dentist coaches, and various dentist workgroup participants and leads.
Employment Agreements with Affiliated Dentists and Specialists
Substantially all the dentists and specialists practicing with our affiliated dental practices have entered into employment agreements with the entity that controls the dental practice. Most of these employment agreements can be terminated by either party without cause with up to 90-180 days’ advance notice or upon the occurrence of certain events that would render the dentist or specialist unfit or unable to legally practice dentistry. The agreements typically restrict such dentist’s or specialist’s solicitation of patients, staff and employees of the contracting service provider. The enforceability of non-competition restrictions has come under added scrutiny in recent years, both on the federal level and at the state level. For example, Minnesota passed legislation effective July 1, 2023 that greatly restricts non-competition clauses entered into for the first time after that date, with some very limited circumstances for owners in the sale of a business.
Non-competition restrictions prior to July 1, 2023 will still be reviewed under Minnesota law under the old standard of review. Other states have also completely voided non-competition restrictions, such as California, North Dakota and Oklahoma. Other states still allow for non-competition restrictions, but with significant limitations. On the federal level the Federal Trade Commission (FTC) recently attempted to enact legislation that voided non-competition restrictions both retroactively and proactively on a large scale. The FTC’s legislation was ultimately defeated, but it may be appealed or resurface again. To summarize, there are on-going challenges to the enforceability of non-competition restrictions that will need to be assessed for the dentists and specialists. Those employment agreements entered into prior to July 1, 2023, may contain non-competition provisions for two years following such dentist’s or specialist’s termination within a specified geographic area, usually a specified number of miles from the affiliated dental practice. We are not a party to any of these employment agreements. These non-solicitation and non-competition covenants may not be enforceable or may be significantly limited by the courts of the states in which we operate or future limitations based upon federal law. See “Risk Factors — Risks Related to Our Business — If our affiliated dental practices are unable to attract and retain qualified dentists, specialists and hygienists, their ability to attract and maintain patients and generate revenue could be negatively affected.” Additionally, our
Administrative Resources Agreements with affiliated dental practices could be challenged by a state or dentist under laws regulating the practice of dentistry.
An affiliated dentist generally receives compensation from the entity based upon the percentage of adjusted gross revenues attributable to the dentist or, in certain cases, the greater of such percentage of adjusted gross revenue attributable to the dentist and a fixed amount. We do not determine the compensation level of dentists and specialists. We assist our affiliated dental practices, however, in deciding compensation by providing them with market data relating to the compensation levels of dentists and specialists in the markets in which the affiliated dental practice operates and among our affiliated dental practices as a whole. We also can develop compensation models for the practices that allow them to understand the impact on their profitability for different compensation levels and plans.
Support Agreements with the Professional Corporations
We have entered into an administrative resources agreement with each affiliated dental practice to provide on an exclusive basis all non-clinical support services of the dental practice. We anticipate that each new affiliated dental practice will enter into a similar administrative resources agreement. We are generally responsible for the following support services under these agreements:
•
providing offices and facilities, including dental equipment, office furnishings, and computer equipment, systems and information technology services;
•
ordering and purchasing all dental equipment and supplies on behalf of affiliated dental practices;
•
administering all billing and collection services primarily through our centralized revenue cycle services;
•
providing non-dentist personnel at each dental practice;
•
recruiting, training and retaining all non-dentist personnel, such as dental hygienists and assistants, patient care coordinators and office administrators;
•
providing cash management services, including the management of bank accounts in the name of, and on behalf of, the dental practice;
•
providing bookkeeping, tax, financial and corporate reporting services;
•
establishing and administering accounting controls and systems;
•
preparing annual capital and operating budgets for the dental practice;
•
implementing marketing, branding and public relations programs; and
•
negotiating and executing on behalf of an affiliated dental practice certain agreements in connection with, and in furtherance of, our business support services.
The affiliated dental practices have exclusive authority, management and control over the dental aspects of the professional services including all clinical aspects of dentistry and the provision of dental services, including:
•
providing all dental treatment, evaluation, examination and diagnostic procedures and all referrals to appropriate dental specialists and other health care professionals;
•
employing and contracting with all licensed providers of dental related services, such as dentists and specialists;
•
selecting dental equipment and supplies; and
•
ensuring the practices’ material compliance with all laws, rules and regulations relating to the professional activities of the dentists, specialists, hygienists and dental assistants and with the ethics and standard of care of the dental community in which the dental practice operates.
In addition, after consulting with us, each affiliated dental practice establishes the hours of operation of the dental locations and the fees, charges, premiums and other amounts due from patients in connection with the delivery of dental services by affiliated dentists and specialists.
As compensation for our support services under the Administrative Resources Agreement, the affiliated dental practice pays us a monthly service fee based upon the provider’s total net collections for the applicable month. We review the service fee annually and make mutually agreed adjustments to ensure that the service fee on a go-forward basis comports with the fair market value of the increased or decreased demand for administrative services based on material changes to the size and scope of the affiliated dental practice. In addition to our service fee, each affiliated dental practice reimburses us for all of the costs we incur while carrying out our obligations to the affiliated dental practices, such as the costs of clinical support staff and non-clinical staff at the dental practice, supplies, laboratory services, facilities, utilities, and other costs of dental practice operations. The service fee we charge to affiliated dental practices is not reflected in our revenues presented in our consolidated financial statements, because the fee is eliminated in consolidation.
The affiliated dental practices have also agreed to indemnify us for all liabilities, losses and expenses, including reasonable attorneys’ fees, caused by the performance of dental services or any other acts or omissions by the affiliated dental practice and/or its shareholders, directors, agents or employees during the term of such agreement.
Our Administrative Resources Agreement generally have an initial term of thirty years with successive automatic five-year renewal terms, unless terminated as provided in the agreements.
We have the ability to terminate each Administrative Resources Agreement, for any reason whatsoever, upon 60 days’ notice to the applicable affiliated dental practice. In addition, we have the ability to terminate each administrative resources agreement, effective immediately, upon providing notice to the applicable affiliated dental practice of any of the following: (i) cancellation or non-renewal of the professional or malpractice insurance of such affiliated dental practice (or an employee of such affiliated dental practice), (ii) dissolution of such affiliated dental practice, (iii) suspension or exclusion of such affiliated dental practice (or an employee of such affiliated dental practice) from any state or federal health care program, (iv) transfer or attempted transfer (voluntarily, by operation of law, or otherwise) of the capital stock of such affiliated dental practice without our approval, (v) merger, sale, liquidation, or other disposition of substantially all of the stock or assets of such affiliated dental practice without our approval, (vi) non-payment of our management fee in the applicable time frames, and (vii) breach by such affiliated dental practice of the protective covenants contained in the administrative resources agreement.
Each affiliated dental practice has the right to immediately terminate its administrative resources agreement upon our suspension or exclusion from any state or federal health care program. In addition, each administrative resources agreement may be terminated by either party upon (i) mutual agreement, (ii) filing of a petition in bankruptcy or the insolvency of the other party and such petition is not dismissed within 90 days of filing, and (iii) a material breach by the other party, provided that such breach continues for 30 days after written notice thereof has been provided, of the applicable parties.
Additional Benefits Provided to Affiliated Dental Practices
In addition to the administrative and operational support services enumerated in the administrative resources agreements, we provide the following additional benefits to affiliated dentists:
•
financing alternatives for affiliated dentists to offer their patients through arrangements with third party financing companies and by extending credit ourselves to qualified patients;
•
establishing guidelines for the selection, hiring and termination of the dentist employees of the dental group;
•
Dentist workgroups comprised of affiliated dentists that provide a forum for the sharing of “best practices” related to dental materials, technology and patient care workflows that will enhance the care and services provided to patients;
•
Centralized patient communication services that improve the efficiency of the dental practice by performing such functions as initial and existing patient scheduling through phone support, online chat, and online appointment requests.
•
Patient experience training and best practices to enhance the patient services at the affiliated practices;
•
Internal learning management system for training of affiliated dentists and providing training to clinical and non-clinical employees to ensure quality patient service; and
•
the use of Press Ganey patient satisfaction survey results and patient feedback to measure and improve patient satisfaction.
Payor Relationships and Reimbursement Mix
Affiliated dental practices accept a significant portion of payment for dental care through various payment methods to attract and retain patients, including indemnity and preferred provider plans, dental discount plans, direct reimbursement plans, government plans and direct payments from patients. We negotiate third party payor contracts on behalf of the affiliated dental practices, but the affiliated dental practice enters into contracts with the various insurance plans. Our inability to negotiate favorable prices or rates under third party payor plans could reduce the revenue of affiliated dental practices and therefore reduce our consolidated revenue. As a result, our revenues and profitability could be significantly impacted by our ability to negotiate favorable prices or rates under third party payor plans. Third-party payors can also deny reimbursement for dental services if they determine that a treatment was not performed in accordance with treatment protocols established by such payors or for other reasons. Loss of revenue by our affiliated dental groups caused by cost containment efforts could have an adverse effect on our consolidated revenue.
The following table sets forth information regarding the percentage of our general practice revenues represented by the type of patient coverage for the periods presented:
| |
|
|
Six Months Ended
June 30,
|
|
|
Years Ended
December 31,
|
|
|
Type of Patient Coverage
|
|
|
2025
|
|
|
2024
|
|
|
2024
|
|
|
2023
|
|
|
Indemnity and preferred provider plans
|
|
|
|
|
74.2% |
|
|
|
|
|
78.1% |
|
|
|
|
|
77.4% |
|
|
|
|
|
79.2% |
|
|
|
No third-party coverage (uninsured)
|
|
|
|
|
5.8% |
|
|
|
|
|
4.6% |
|
|
|
|
|
5.1% |
|
|
|
|
|
4.2% |
|
|
|
Government sponsored plans
|
|
|
|
|
17.9% |
|
|
|
|
|
14.9% |
|
|
|
|
|
15.2% |
|
|
|
|
|
14.1% |
|
|
|
Other
|
|
|
|
|
2.1% |
|
|
|
|
|
2.3% |
|
|
|
|
|
2.3% |
|
|
|
|
|
2.5% |
|
|
|
Total
|
|
|
|
|
100.0% |
|
|
|
|
|
100.0% |
|
|
|
|
|
100.0% |
|
|
|
|
|
100.0% |
|
|
The following table sets forth information regarding the percentage of our specialty practice revenues represented by the type of patient coverage for the periods presented:
| |
|
|
Six Months Ended
June 30,
|
|
|
Years Ended
December 31,
|
|
|
Type of Patient Coverage
|
|
|
2025
|
|
|
2024
|
|
|
2024
|
|
|
2023
|
|
|
Indemnity and preferred provider plans
|
|
|
|
|
61.3% |
|
|
|
|
|
68.8% |
|
|
|
|
|
67.2% |
|
|
|
|
|
71.3% |
|
|
|
No third-party coverage (uninsured)
|
|
|
|
|
7.1% |
|
|
|
|
|
6.4% |
|
|
|
|
|
6.6% |
|
|
|
|
|
6.4% |
|
|
|
Government sponsored plans
|
|
|
|
|
31.0% |
|
|
|
|
|
24.0% |
|
|
|
|
|
25.5% |
|
|
|
|
|
21.2% |
|
|
|
Other
|
|
|
|
|
0.6% |
|
|
|
|
|
0.8% |
|
|
|
|
|
0.7% |
|
|
|
|
|
1.1% |
|
|
|
Total
|
|
|
|
|
100.0% |
|
|
|
|
|
100.0% |
|
|
|
|
|
100.0% |
|
|
|
|
|
100.0% |
|
|
Each type of patient coverage, with the exception of government sponsored plans, generally includes a significant out-of-pocket component.
Marketing and Payor Relations
Marketing Team. Our marketing team is responsible for affiliated dental practice branding and communications within their individual markets. This team develops, implements and coordinates marketing plans to ensure consistency with advertising campaigns for each affiliated brand through marketing strategies, including direct, indirect and digital marketing. Our advertising and promotional efforts are
aimed at increasing patient awareness and brand recognition, as well as ensuring high levels of patient retention. The marketing team tracks and analyzes the effectiveness, distribution, coverage and performance of our various forms of advertising by affiliated dental practices. We use internal and external databases to help identify patient profiles which are used to target outreach to individuals likely to visit an affiliated dental practice. In addition, the marketing team monitors operational performance in terms of the overall patient experience through ongoing patient satisfaction and experience surveys.
Payor Relations Team. Our payor relations team establishes and builds strong relationships with key representatives of dental insurance plans and negotiates insurance reimbursement rates on behalf of the affiliated dental practices. The payor relations team also analyzes and reviews new and existing insurance plan opportunities to assist the affiliated dental practices in optimizing payor mix.
Training, Recruiting, and Quality Assurance Programs
The success of any dental practice relies heavily on the expertise and reputation of its dentists and specialists. While we do not employ dentists or control clinical decisions within affiliated dental practices, we play a critical role in supporting these practices by enhancing their recruiting, training, and quality assurance efforts.
Recruiting and Training
Our approach to recruiting is focused on attracting highly qualified dentists and specialists. Our talent acquisition specialists work closely with affiliated dental practices to recruit top-tier clinical personnel. This involves reaching out to experienced professionals and top graduates from dental schools through various channels, including:
•
Dental School Partnerships: Collaborating with dental schools to identify and recruit talented graduates.
•
Industry Events: Attending local dental seminars and conventions to connect with potential recruits.
•
Online Platforms: Utilizing online recruitment platforms for wider reach and visibility.
In terms of training, we provide comprehensive support by coordinating and arranging both non-clinical and clinical training. This includes:
•
Orientation and Development: Designing and implementing orientation programs and ongoing training to keep affiliated dentists abreast of the latest industry techniques and technologies.
•
Continuing Education: Facilitating internal and vendor-sponsored professional development and career growth opportunities in collaboration with our chief clinical officers and regional dental directors.
Quality Assurance and Best Practices
To ensure consistent, high-quality patient care across affiliated practices, we implement several quality assurance measures:
•
Dentist Workgroups: Organizing workgroups where dentists can share best practices and provide feedback on various aspects of dental care, including materials, technology, emergency dental services, and specialized treatments like implants.
•
Quality Review: Our chief clinical officers meet quarterly to review policies and procedures related to quality assurance and risk management. They provide recommendations and oversee the implementation of best practices.
Each affiliated dental practice has regional dental directors or specialty clinic directors, who are licensed dentists, as well as regional directors of operations, who handle administrative functions. These leaders work together in a dyad leadership model focusing on:
•
Compliance: Oversee adherence to regulations, protocols and policies.
•
Quality Assurance: Manage quality assurance functions, including patient record reviews and practice evaluations.
•
Training and Mentoring: Assist with recruiting, training, and mentoring new and existing dental professionals.
Additionally, we conduct ongoing patient satisfaction surveys to gather feedback on the performance and patient experience provided by affiliated dentists and their teams, helping to promote continuous improvement.
This structured approach to recruiting, training, and quality assurance ensures that our affiliated dental practices maintain high standards of patient care and operational excellence.
Technology, Management Information Systems and Facility Utilization
We seek to assist affiliated dental practices in improving facility utilization, primarily through our technology and management information systems. We maintain proprietary and third-party technology systems through which we receive uniform data that is analyzed to measure and improve the operating performance of each dental practice. The management information systems allow us to interface with each of the 85 affiliated dental practices daily and to track and report on their performances, including information relating to patient and dentist scheduling, service mix, specialty services provided and financial performance. The ability to provide extensive informational reports on a large number of locations helps to ensure that each location is operating as efficiently as possible. The information from these reports can be used by affiliated dental practices to improve their operational and financial performance and it also allows us to quickly identify growth opportunities.
Our technology systems also allows us to review metrics related to patient care, including the percentage of return appointments, the number of specialty referrals, and the percentage of patients seeking specialty care. By tracking these patient metrics on an individual location basis, our experienced management team can assist affiliated dental practices in identifying growth opportunities and pinpointing growth opportunities for underperforming locations. This then allows our operations team to continuously enhance our marketing strategy and recommendations and to provide training programs or increase quality assurance audits to improve patient experience and increase patient volumes for underperforming locations.
We also increase facility utilization through our patient communication services. Our patient communication services allow us to improve patient scheduling among affiliated dental practices, which increases dentist and clinical team member’s productivity and utilization in our affiliated practices. Our centralized billing services allow many administrative functions to be performed off-site, which allows the dentist and his or her clinical staff to focus on the patients and their care.
Regulation
General. The practice of dentistry in the U.S. is governed by a complex array of regulations at both state and federal levels. Key regulatory considerations include the corporate practice of dentistry, fee splitting, anti-kickback and anti-referral legislation, privacy and security requirements, health and safety regulations, state insurance laws, and professional licensing rules. Compliance with these regulations is crucial for maintaining eligibility to participate in federal and state healthcare programs and avoiding substantial legal and financial consequences.
We and our affiliated dental practices are committed to adhering to applicable laws and regulations. However, changes in regulatory environments or interpretations could necessitate modifications to our operations or legal arrangements. This may involve incurring legal fees, fines, or other costs, and could impact our business activities and profitability. In response to new or revised laws, regulations or interpretations, we could be required to revise the structure of our legal arrangements, incur substantial legal fees, fines or other costs, or curtail our business activities, reducing the potential profit to us of some of our legal arrangements, any of which could have a material adverse effect on our business, financial condition and results of operations.
The following is a summary of the principal regulatory issues affecting our operations and those of our affiliated dental practices.
Corporate Practice of Dentistry and Fee Splitting: Every state has a law prohibiting non-dentists from engaging in the practice of dentistry. In addition, many states have laws prohibiting non-dentist owned practices from employing dentists, or sharing professional fees (i.e., payments for the provision of dental care from patients and third-party payers). These laws exist to prevent non-dentist owned entities from controlling clinical decision-making and to ensure that only licensed dental professionals are involved in the diagnosis, treatment planning and provision of dental care. Restrictions also often include limitations on the delegation of tasks to dental hygienists and assistants. Similarly, state laws also often include other limitations, such as who can delegate tasks to allied personnel (National Conference of State Legislatures, 2024). For instance, Minnesota’s Dental Practice Act prohibits corporations from owning or operating a dental practice, although it does allow dental resource organizations to provide non-clinical support services (Minnesota Statute Section 150A.11, 2024).
A number of states impose further restrictions, such as limiting the ability of a person other than a licensed dentist to own dental equipment or practices. Some of these states allow leasing of equipment and office space under a bona fide lease. The laws of many states also prohibit dental practitioners from paying any portion of fees received for dental services in consideration for the referral of a patient. In addition, many states impose limits on the tasks that may be delegated by dentists to hygienists and dental assistants.
We provide business support services to affiliated dental practices and believe that the fees we charge for those services are consistent with the laws and regulations of the jurisdictions in which we operate. We do not control the clinical aspects of the practice of dentistry, the provision of dental services, including the diagnoses or treatment of dental disease, or employ dentists to practice dentistry.
The laws regarding fee splitting and the corporate practice of dentistry and their interpretation vary from state to state and are enforced by regulatory authorities with broad discretion. The legality of our business or our relationships with dentists or affiliated dental practices may be challenged in the future and the enforceability of the provisions of any administrative resources agreement could be limited. The laws and regulations of certain states in which we may seek to expand may require us to change the form of our relationships with affiliated dental practices. Such a change may restrict our operations or the way in which providers may be paid or may prevent us from acquiring the non-dental assets of dental practices or managing dental practices in those states. Similarly, the laws and regulations of the states in which we presently maintain operations could change or be interpreted in the future either to restrict or adversely affect our existing or future relationships with affiliated dental practices. See “Risk Factors — Risks Related to Our Business — We and our affiliated dental practices are subject to complex laws, rules and regulations, compliance with which may be costly and burdensome.”
Anti-Kickback and Anti-Referral Legislation: Federal and state laws prohibit the exchange of any form of remuneration for the referral of services reimbursed under Medicare, Medicaid, or other healthcare programs. These laws aim to prevent fraud and abuse in healthcare. For instance, the Federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b) and the Stark Law (42 U.S.C. § 1395nn) impose stringent restrictions on financial relationships between healthcare providers and entities receiving referrals (U.S. Department of Health & Human Services, 2024). Violations can lead to exclusion from federal programs and significant civil and criminal penalties.
Health Insurance Portability and Accountability Act (HIPAA): HIPAA establishes national standards for the protection of health information. The Privacy Rule sets standards for the confidentiality of patient information, while the Security Rule mandates safeguards to protect electronic health information (Health and Human Services, 2024). Recent updates include provisions extending compliance requirements to business associates of covered entities and allowing state attorneys general to enforce HIPAA regulations (American Recovery and Reinvestment Act of 2009).
We believe that we and our affiliated dental practices are in material compliance with applicable provisions of HIPAA, including the privacy rule, and the regulations promulgated under HIPAA, including the privacy rule and security rule.
Occupational Safety and Health Administration (OSHA): Dental practices must adhere to OSHA regulations, which include guidelines for sterilization, use of personal protective equipment, and maintaining a safe working environment. Compliance requires ongoing monitoring and investment in safety measures
(Occupational Safety and Health Administration, 2024). These regulations include the heat sterilization of dental instruments and the use of personal protective equipment, such as the use of masks, face shields and gloves by the dentists and clinical staff, and such regulations require us to incur ongoing monitoring and compliance expenses.
Civil False Claims Act: This Federal Act prohibits knowingly presenting false claims for payment to the government and imposes significant penalties for violations. The Act requires repayment of triple damages plus fines ranging from $13,946 to $27,894 per false claim (U.S. Department of Justice, 2024). Many states have similar laws addressing fraudulent claims.
State Insurance Laws and Regulations: State insurance laws can impact dental practices, especially regarding third-party payer contracts and claims administration. These laws are subject to interpretation and enforcement by state regulators, and changes or misinterpretations could affect operational and financial aspects of dental practices (National Association of Insurance Commissioners, 2024). Our failure to properly interpret and apply such requirements, as well as changes in such laws, or the extension or interpretation of such laws and regulations to cover additional parties and activities, could subject us or our affiliated dental practices to additional laws or regulations, licensure requirements or regulatory enforcement actions, which could increase our costs, damage our reputation or otherwise adversely affect our operations and our profitability.
MinnesotaCare Provider Tax: The MinnesotaCare Provider Tax, also known as the Health Care Provider Tax, is a state tax imposed on healthcare providers, including dentists, in Minnesota. It was originally designed to fund the state’s health care programs and help provide access to medical services for low-income individuals and families. For dentists, this tax is calculated as a percentage of their revenue from providing dental services. Each year the state sets the rate for the following year, with the maximum allowable tax rate of 2.0%. In 2025, the Health Care Provider Tax is 1.80% of applicable revenue. It is unknown if the state will increase the rate in subsequent years.
Advertising: State regulations govern the content and practices of dental service advertisements. These laws vary widely and are enforced by state authorities with broad discretion (American Dental Association, 2024).
State Licensing Boards: Each state requires dentists to be licensed and may impose disciplinary actions for improper conduct or ethical violations. Compliance with state-specific licensing requirements is essential for maintaining operational legitimacy.
Implications of Being an Emerging Growth Company
We qualify as an “emerging growth company” as defined in Section 2(a) of the Securities Act of 1933, as amended (the “Securities Act”), as modified by the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). As an emerging growth company, we may take advantage of specified reduced disclosure and other requirements that are otherwise applicable generally to public companies that are not emerging growth companies. These provisions include, among others:
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the requirement to present only two years of audited financial statements and only two years of related “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this prospectus;
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reduced disclosure about our executive compensation arrangements;
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no non-binding shareholder advisory votes on executive compensation or golden parachute arrangements; and
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exemption from the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”) in the assessment of our internal control over financial reporting.
We may take advantage of these provisions until such time that we are no longer an emerging growth company. We would cease to be an emerging growth company upon the earliest to occur of (1) the last day of the fiscal year in which we have more than $1.235 billion in annual revenue; (2) the date we qualify as a
“large accelerated filer,” with at least $700 million of equity securities; (3) the issuance, in any three-year period, by us of more than $1.0 billion in non-convertible debt securities held by non-affiliates; and (4) December 31, 2030.
In addition, Section 107 of the JOBS Act also provides that an emerging growth company can use the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended (the “Securities Act”) for complying with new or revised accounting standards. This permits an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies.
We have elected to take advantage of the exemptions discussed above. Accordingly, the information contained herein, and the documents incorporated herein by reference, may be different than the information you receive from other public companies.
Competition
The dental services industry remains large and highly fragmented, characterized by intense competition among providers. In this market, affiliated dental practices face competition from other local dental practitioners. We believe affiliated dental practices associated with dental resource or support organizations compete favorably with other providers of dental services on the basis of such factors as:
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Quality of Care and Reputation: This includes the delivery of high-quality dental services and the strength of recognizable brand names.
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Marketing and Advertising Strategy: Effective marketing and targeted advertising can significantly impact patient acquisition and retention.
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Location and Accessibility: The convenience, traffic flow, and visibility of practice locations play a critical role in attracting patients.
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Insurance Provider Relationships: Strong connections with insurance companies can enhance patient access and streamline reimbursement processes.
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Pricing: Competitive pricing of services can be a key differentiator in attracting and retaining patients.
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Hours of Operation: Extended and flexible hours can improve accessibility and convenience for patients.
There are currently over 100 large dental support organizations operating in the U.S.. The top three primary competitors are Heartland Dental, Aspen Dental, and Pacific Dental Services, all of which are active in our current markets. These competitors may possess significant financial resources, established affiliation models, strong reputations, or advanced management expertise, potentially giving them a competitive edge.
Affiliated dental practices also compete with other established dental practices for recruiting and retaining general dentists, specialists, hygienists, and non-clinical staff. A decline in the availability of qualified personnel could make it more challenging to staff affiliated practices adequately or support future expansion plans.
While the dental support organization model offers various advantages to dentists, such as reduced administrative burdens and operational support, it is uncertain how many dentists will be drawn to these benefits compared to the perceived loss of independence associated with solo practice. Many dentists value the autonomy of traditional solo practice and may be hesitant to shift to a dental resource organization model, which could impact our ability to attract new affiliates. See “Risk Factors — Risks Related to Our Business — If our affiliated dental practices are unable to attract and retain qualified dentists, specialists and hygienists, their ability to attract and maintain patients and generate revenue could be negatively affected.” We continue to work to increase awareness among dentists of the many benefits of affiliating with our innovative dental resource organization model.
Professional Liability and Other Insurance Coverage
We maintain insurance coverage that we believe is appropriate for our business, including professional liability, property, business interruption, and general liability, among others.
We arrange and are reimbursed for the cost of professional liability insurance for the affiliated dental practices and the dentists they employ. The standard policy provides coverage limits of $2.0 million per occurrence and $3.0 million annual aggregate. For dental specialists and general dentists providing sedation services, the policy includes higher coverage limits of $5.0 million per occurrence and $7.0 million annual aggregate. Each affiliated dental practice indemnifies us for any losses related to the performance of dental services not covered by insurance.
While we believe our insurance coverage is adequate for our current operations, it may not be sufficient for all future claims. Additionally, there is no guarantee that we will be able to secure coverage in adequate amounts or at reasonable costs in the future.
Legal Proceedings
We and our affiliated dental practices have been named as a defendant in various lawsuits in the normal course of business, primarily for employment liability, malpractice claims and contractual business disputes. We do not believe any pending lawsuits will have a material adverse effect on our operating results, cash flows, liquidity or financial position.
On or about August 9, 2024, we advised certain patients that certain information of our affiliated dental practices was the subject of a data breach. As a result of the incident, multiple claims were filed against us in state and federal courts in Minnesota. The claims were subsequently dismissed without prejudice and were subsequently refiled as a single, putative class action suit in Minnesota District Court entitled, In re Park Dental Data Breach Litigation, Case No. 27-CV-24-12335, Fourth Judicial District, County of Hennepin, State of Minnesota. Our recently filed a motion to dismiss this matter was recently heard by the court and taken under advisement. A loss contingency related to this incident is reasonably possible but given the litigation is in the early stages, we cannot reasonably estimate a range of possible loss. We will continue to evaluate information as it becomes known, and it is possible that future results of operations or cash flows for any particular interim or annual period could be materially affected by unfavorable resolutions of this matter.
Seasonality
Our results of operations fluctuate due to seasonal variations in our business. Absent the impact and timing of acquisitions, our total revenues have historically been lower in the third quarter of the year due to fluctuations in patient volumes, which are primarily impacted by the timing of holidays and the school year calendar.
Intellectual Property
We regard our copyrights, service marks and similar intellectual property as important to our success. We or our affiliated dental practices are the registered owner, or have filed for registration, of various marks in the United States, including PARK DENTAL PARTNERS™, PARK DENTAL®, WITH YOU EVERY SMILE OF THE WAY™, our Park Dental logo “P” design, and our Parker mascot. We use these trademarks to distinguish our business and our affiliated dental practices from competitors in their respective markets. We also promote brand awareness and generate demand using our marks through our marketing and advertising programs. See “Risk Factors — Risks Related to Our Business — Our inability or failure to protect our intellectual property could have a negative impact on our operating results.”
Properties
Our facilities are designed to convey professionalism and utilize state-of-the-art technology, aiming to instill confidence in our patients through a friendly and caring environment. We lease all but one of our properties, and as of December 31, 2024, the total number of leased spaces was 84 dental practices and one administrative office. Our corporate office is approximately 12,900 square feet in a leased office building
in Roseville, Minnesota. We generally lease dental locations used by affiliated dental practices for an initial term of five-to-ten years, with renewal options for two or three consecutive three-to-five-year terms. On average, each dental practice is approximately 3,785 rentable square feet, with approximately 8+ treatment rooms per location, and is typically located in highly visible medical, professional, or stand-alone buildings with convenient access and parking, good building signage, and high levels of vehicle and pedestrian traffic. This approach ensures that each practice upholds our core values and maintains a professional and inviting atmosphere for patients.
Human Capital Resources
As of June 30, 2025, we employed or contracted with 1,193 employees and independent contractors. As of June 30, 2025, our affiliated dental practices employed or contracted 203 dentists. We consider our employee relations to be very good based upon the results of annual team member engagement surveys administered by an external vendor.
MANAGEMENT
Executive Officers, Directors, and Key Employees
The following sets forth information about our directors, executive officers and key employees of the affiliated practices as of June 30, 2025:
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Name
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Age
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Position
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Directors and Executive Officers
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Peter G. Swenson
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54
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President, Chief Executive Officer and Chairman of the Board
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Dr. Alan Law
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60
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Director, Chief Clinical Officer – Specialty Practices
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Dr. Christopher Steele
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62
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Director, Chief Clinical Officer – General Practices
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Christopher J. Bernander
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43
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Chief Financial Officer, Treasurer
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Dr. Todd Gerlach
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54
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Director
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Philip I. Smith
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58
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Director
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Christopher C. Smith
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50
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Director
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Anna M. Schaefer
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66
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Director
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Executive Officers
Peter G. Swenson. Mr. Swenson serves as chairman and chief executive officer of Park Dental Partners, Inc. Mr. Swenson previously served as Chief Executive Officer and Chief Administrative Officer of Park Dental, The Dental Specialists and Orthodontic Specialists of Minnesota since 2008. He works in close collaboration with key dentist leaders involved in all facets of the governance and management of the DRO and affiliated dental practices. Mr. Swenson has served in dental leadership capacities for over three decades, supporting dental practices regionally and nationally. He has led the growth of the group practices from 99 dentists to more than 200 dentists and approximately 1,400 combined team members. Prior to joining Park Dental, Mr. Swenson was vice president of market development for American Dental Partners (ADPI), a dental practice management company now owned by Heartland Dental. During his tenure, he helped grow ADPI from start-up to over $300 million in revenues through its 1998 initial public offering. Mr. Swenson’s board memberships have included American Academy of Dental Group Practice and Voyageurs National Park Association. He currently serves as chair of the Park Dental Partners, Inc. Board of Directors and has served on the Park Dental Partners Foundation board since its inception in 2015. Mr. Swenson earned his bachelor’s degree in economics from St. Olaf College.
Dr. Alan Law. Dr. Alan Law serves as chief clinical officer, specialty practices. Dr. Law is responsible for overseeing clinical standards and practices, and ensuring quality patient care across all affiliated specialty dental practices. He also spearheads continuing education and professional development initiatives within the affiliated dental practices. Dr. Law has served in multiple operational and leadership capacities within the organization and continues to practice as an endodontist. Dr. Law originally joined the group in 1996, and since 2003 has served as president of The Dental Specialists, a multi-specialty dental practice with over 40 specialists. Dr. Law has served as a director on the Park Dental Partners, Inc. Board since inception. Dr. Law is a graduate of the University of Iowa where he also received his DDS degree, certificate in endodontics, and Ph.D. in Mechanisms and Modulation of Orofacial Pain. He is a past president of the American Association of Endodontists, American Board of Endodontics, and Minnesota Association of Endodontics. He has published several articles in scientific and clinical journals and textbooks, is an editor of Endodontics: Principles and Practice, and has lectured at over 300 local, national and international meetings.
Dr. Christopher Steele. Dr. Chris Steele serves as the chief clinical officer, general practices. He is responsible for overseeing clinical standards and practices, and ensuring quality patient care across all affiliated general dental practices. He also spearheads continuing education and professional development initiatives for general dentists within the affiliated dental practices. Dr. Steele has served in multiple operational and governance leadership capacities within the organization and continues to practice as a general dentist. He originally joined the group in 1991 and has led the Park Dental general dental group with over
160 dentists, as president since 2019. Dr. Steele has served as a director on the Board of Directors since inception and has also served on the Park Dental Partners Foundation Board since its inception in 2015. Dr. Steele holds a bachelor of science degree from Gustavus Adolphus College, and a DDS degree from the University of Minnesota, School of Dentistry. He completed a general practice residency program at the University of Minnesota, School of Dentistry.
Christopher J. Bernander. Mr. Bernander serves as chief financial officer for Park Dental Partners, Inc. He is responsible for managing our accounting, treasury, internal control, financial planning, and revenue cycle operations. Mr. Bernander joined the organization in 2022, after holding chief financial officer and financial leadership roles in technology and professional services organizations. Mr. Bernander previously served as the chief financial officer of Calabrio from 2021 to 2022, and the chief financial officer of Digital River from 2019 to 2021. Over the past twenty years, Mr. Bernander has worked in numerous publicly-held and private equity backed organizations, and has demonstrated ability to bring financial discipline and support operational execution to drive organizational growth and profitability. Mr. Bernander began his career in accounting, working at Ernst & Young and Bemis Company (now Amcor). With over two decades of financial leadership experience across technology, consumer and healthcare industries, Mr. Bernander brings a proven ability to drive strategy, efficiency and innovation to Park Dental Partners, Inc. A certified public accountant (inactive), Mr. Bernander holds a bachelor of business administration in accounting from the University of Wisconsin-Madison.
Directors
Dr. Todd Gerlach. Dr. Todd Gerlach has been a Director of Park Dental Partners, Inc. since inception and has been with The Dental Specialists since 2004. Dr. Gerlach was on The Dental Specialists Board of Governors for eight years. Dr. Gerlach serves as a Director on the Boards for Dental Building Fund I and Dental Building Fund II, two commercial real estate entities. Dr. Gerlach was previously on the Minnesota Society of Oral and Maxillofacial Surgeons Board for four years including as President in 2016-2017. Dr. Gerlach is a practicing Oral and Maxillofacial Surgeon with The Dental Specialists. Dr. Gerlach has experience in the clinical practice of Oral and Maxillofacial Surgery and the financial performance of The Dental Specialists and Park Dental Partners. Dr. Gerlach received his B.A. from St. Olaf College and his D.D.S. from The University of Minnesota School of Dentistry. His residency in Oral and Maxillofacial Surgery was at The University of Rochester, Strong Memorial Hospital.
Christopher C. Smith. Mr. Smith is President and CEO of Kipsu, a technology company he co-founded in 2010, which created the Frontline Customer Experience software category. He has worked as a venture capitalist with Coral Ventures, an associate with IBM’s venture capital group and a consulting manager with Accenture. He co-founded and serves on the board of DOCSI, a healthcare technology company, and has served on the boards for a number of for-profit venture-backed technology companies in Silicon Valley. Mr. Smith also chaired the Blake School Board of Trustees and chaired and co-founded Minnesota Comeback, a nonprofit addressing the educational achievement gap in Minneapolis. He received a B.S. from Syracuse University and an M.B.A. from the University of California at Berkeley’s Haas School of Business, where he was an IBM Venture Fellow.
Philip (Phil) I. Smith. Mr. Smith has over 30 years of board, strategic advisory and operational leadership experience in the healthcare industry, predominantly with medical device companies. Mr. Smith is currently Operating Partner at Altaris Capital Partners, LLC. Mr. Smith was a managing director at investment banking firms Kroll (formerly Duff & Phelps), BMO Capital Markets (formerly Greene Holcomb Fisher) and Piper Jaffray, where he advised healthcare clients and executed mergers, acquisitions and corporate finance transactions. Mr. Smith has significant experience as a board member, including nearly a decade on Delta Dental of Minnesota’s Board of Directors and currently serving on the Board of Directors of Winmark Corporation and Trean Insurance Group, Inc. Mr. Smith received a B.S. in Electrical & Electronics Engineering from the University of Florida, and an M.B.A. in Finance from The Wharton School, University of Pennsylvania.
Anna M. Schaefer. Ms. Schaefer is a retired finance professional with more than 20 years of leadership experience in financial planning, financial reporting, risk management and tax functions. Ms. Schaefer most recently served as VP & CFO of Kipsu, with prior experience as a finance leader at ConvergeOne Holdings Corp, Digital River, Inc., and Northwest Airlines where she held the position of Vice President Finance &
Chief Accounting Officer until the merger with Delta Airlines. Ms. Schaefer has significant experience in supporting board of directors and audit committees on finance and accounting matters. Ms. Schaefer received a bachelor’s degree in accounting and Finance from Minnesota State University, Mankato and is a Certified Public Accountant — State of Minnesota, (inactive).
We believe that each of Messrs. Gerlach, Smith, Smith, Steele, Swenson and Law and Ms. Schaefer are qualified to serve on our Board of Directors because of their industry, financial and business expertise.
Classified Board and Composition
Our Board of Directors currently consists of seven (7) persons divided into three classes designated as Class I, Class II, and Class III. Each class consists of, as nearly as possible, one-third of the total number of directors. Each director serves a three-year term and until their successors have been elected.
In addition to the staggered board structure, DDS Advisor LLC, a South Dakota limited liability company, has the right to appoint a minimum of three (3) directors (a “DDS Appointee”) and there shall be at all times a DDS Appointee in each of the three classes of directors. In the event that the number of directors constituting the whole Board is increased to more than seven (7) directors, then the number of directors that DDS Advisor is entitled to appoint increases proportionately so that for every two newly-created directorships DDS Advisor is entitled to appoint one of the two newly-created directorships.
Dentists of our affiliated dental practices meeting certain criteria principles focused on years of practice with the group elect a five (5) person Board of Governors of DDS Advisor. This Board then appoints one director in each class of our Board of Directors. Currently, Messrs. Swenson, Law and Steele have been appointed by DDS Advisor LLC which has the right to appoint three (3) directors (one in each class of directors) pursuant to their appointment rights in our Bylaws. Each director and their respective class are set forth below:
Current Board Composition
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Class I
(term expiring 2028)
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Class II
(term expiring 2026)
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Class III
(term expiring 2027)
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Dr. Christopher Steele*
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Dr. Alan Law*
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Peter G. Swenson, Chair*
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Dr. Todd Gerlach
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Christopher C. Smith
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Philip I. Smith
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Anna M. Schaefer
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*
DDS Advisor LLC Appointee
Officers are elected and serve at the discretion of the board of directors. There are no family relationships among any of our directors or executive officers. Currently three of our directors are independent. Mr. Phil Smith, Mr. Christopher Smith, and Ms. Anna Schaefer were appointed to the Board of Directors on March 5, 2025. We intend to comply with the independence requirements of the Nasdaq Stock Market.
Board Committees
Our Board of Directors has established the committees described below and may establish others from time to time.
Audit Committee
Upon completion of this offering, our audit committee will be composed of Messrs. Smith, Smith and Ms. Schaefer. Our board has determined that Messrs. Smith, Smith and Ms. Schaefer are independent directors. Ms. Schaefer has been appointed as the committee’s chairman and will also qualify as the “audit committee financial expert” as defined by the Securities and Exchange Commission (SEC).
Our audit committee will be responsible for, among other things, assisting our Board of Directors in its oversight of the integrity of our financial statements, our independent registered public accounting firm’s
qualifications and independence and the performance of our independent registered public accounting firm. In performing these duties, our audit committee will:
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review the audit plans and findings of our independent registered public accounting firm and our internal audit function, as well as the results of regulatory examinations and reports,
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review our financial statements, including any significant financial items and changes in accounting policies, with our senior management and independent registered public accounting firm,
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review our financial risk and control procedures, compliance programs and significant tax, legal and regulatory matters, and cybersecurity.
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have sole discretion to appoint annually our independent registered public accounting firm, evaluate its independence and performance and set clear hiring policies for employees or former employees of the independent registered public accounting firm.
Compensation Committee
Our compensation committee is composed of Mr. Phil Smith, who is the chairman of the committee, and Mr. Christopher Smith. Our Board of Directors has determined that the members of the committee are independent directors, are “non-employee directors” within the meaning of Rule 16b-3(b)(3) promulgated under the Securities Exchange Act of 1934 and are “outside directors” within the meaning of Section 162(m) of the Internal Revenue Code, as amended.
Our compensation committee will be responsible for reviewing and recommending policies relating to compensation and benefits of our officers and employees. In performing these duties, the compensation committee will review and approve corporate goals and objectives relevant to the compensation of our Chief Executive Officer and other executive officers, evaluate the performance of these officers in light of those goals and objectives, and recommend the compensation of these officers based on such evaluations. The compensation committee will also administer the issuance of restricted stock, stock options and other awards under our 2023 Equity Incentive Plan.
Corporate Governance and Nominating Committee
Our corporate governance and nominating committee is composed of Mr. Phil Smith, and Mr. Christopher Smith, who is the chairman of the committee. Our board has determined that Mr. Phil Smith and Mr. Christopher Smith are independent directors.
The corporate governance and nominating committee will be responsible for making recommendations to our board of directors regarding candidates for directorships and the size and composition of our Board of Directors. In addition, the corporate governance and nominating committee will be responsible for overseeing our corporate governance guidelines and reporting and making recommendations to our Board of Directors concerning governance matters.
Director Compensation
Compensation paid to the members of our Board of Directors in the six months ended June 30, 2025, and 2024, were $34,000, and $0, respectively. No compensation was paid to members of our Board of Directors in 2024 or 2023. During 2024 and 2023, no member of our Board of Directors was independent.
On August 7, 2024, our Board of Directors approved a compensation program for our directors who are not employees of us or our affiliated dental practices. The new director compensation program includes the following features:
Cash Compensation. Each independent non-employee director will receive an annual retainer of $25,000, plus a fee of $1,000 per meeting for attendance at meetings of the Board of Directors once the number of meetings has exceeded nine (9) meetings in a calendar year. We will also provide additional annual retainers to certain independent directors as follows: Audit Committee Chair, $12,000; Compensation Committee Chair, $8,000; Corporate Governance and Nominating Committee Chair, $5,000. Independent
directors will also receive annual retainers for committee membership as follows: Audit Committee, $4,000; Compensation Committee, $4,000; Corporate Governance and Nominating Committee, $2,500.
Equity Compensation. It is the current intent to annually grant each independent non-employee director a restricted stock award, with the number of restricted shares subject to the grant to be determined by dividing $25,000 by the closing price of our Common Stock on the date that is five trading days after the annual meeting. We also intend to grant new independent non-employee directors (appointed or elected to the board — other than in connection with an annual meeting) an inducement grant of restricted stock awards upon their appointment, with the number of units subject to the grant to be determined by dividing $25,000 by the closing price of our Common Stock on the date of grant (or, if the grant date is not a trading day, on the last trading day preceding the grant date). Restricted stock award granted prior to the initial public offering vest in a manner similar to our currently outstanding restricted stock awards 25% upon the initial public offering and 6.25% quarterly thereafter. Such units are subject to termination upon termination of the director’s service on the board, except that the restricted stock will fully vest and be paid on a change in control. Each of the grants described in this paragraph will be subject to the same vesting and payment terms as the annual grants described above. We also reimburse non-employee directors for travel expenses incurred in connection with their duties as directors.
On March 5, 2025, Messrs. Smith and Smith and Ms. Schaefer received an award of 2,800 restricted shares upon their appointment to the Board of Directors. Such shares vest (a) 25% upon the closing of this offering and 6.25% on subsequent quarters, and (b) 100% upon a change of control as defined in the agreement.
Limitation of Liability and Indemnification
Our amended and restated articles of incorporation provide that our officers and directors will be indemnified by us to the fullest extent authorized by Minnesota law, as it now exists or may in the future be amended, and that we will advance expenses, including attorneys’ fees, to our directors and to our officers, in connection with legal proceedings, subject to limited exceptions. In addition, our articles of incorporation provide that at the discretion of our Board of Directors, certain employees and agents may be indemnified to the fullest extent authorized by Minnesota law, as it now exists or may in the future be amended, and that we may advance expenses, including attorneys’ fees, to certain employees and agents, in connection with legal proceedings, subject to limited exceptions.
Our articles of incorporation also provide that our directors will not be personally liable for monetary damages to us or our shareholders for breaches of their fiduciary duty as directors, unless they violated their duty of loyalty to us or our shareholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived an improper personal benefit from their actions as directors.
In connection with this offering, we will enter into indemnification agreements with each of our executive officers and directors. These agreements will provide that we will indemnify each of our executive officers and directors to the fullest extent permitted by law and advance expenses to each indemnitee in connection with any proceeding in which indemnification is available.
We also maintain general liability insurance that covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act of 1933. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling the registrant pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Our indemnification and advance obligations may discourage shareholders from bringing a lawsuit against our directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our shareholders. Furthermore, a shareholder’s investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
We believe that these provisions, the indemnification agreements and the insurance are necessary to attract and retain talented and experienced directors and officers. At present, there is no pending litigation or proceeding involving any of our directors or officers where indemnification will be required or permitted. We are not aware of any threatened litigation or proceedings that might result in a claim for such indemnification.
Code of Ethical Conduct
In July 2025 the Company adopted a code of ethics and business conduct applicable to our non-employee directors, principal executive officer, principal financial officer and employees in accordance with applicable rules and regulations of the SEC and the Nasdaq Stock Market.
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Salary & Wages
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Bonus
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Stock Awards:
Number of Shares(1)
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Nonequity
Incentive
Plan
Compensation
|
|
|
Nonqualified
Deferred
Compensation
Earnings
|
|
|
All other
Compensation
|
|
|
Total
|
|
| |
|
|
|
|
|
|
|
|
Restricted
|
|
|
Unrestricted
|
|
| |
|
|
Year
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
Peter G. Swenson
Chairman of the Board, President and Chief Executive Officer
|
|
|
|
|
2024 |
|
|
|
|
$ |
604,576 |
|
|
|
|
$ |
200,000 |
|
|
|
|
$ |
1,072,738 |
|
|
|
|
$ |
529,055 |
|
|
|
|
|
— |
|
|
|
|
$ |
29,453 |
|
|
|
|
$ |
16,131 |
|
|
|
|
$ |
2,451,953 |
|
|
| |
|
|
2023 |
|
|
|
|
$ |
573,083 |
|
|
|
|
$ |
300,400 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
26,716 |
|
|
|
|
$ |
22,445 |
|
|
|
|
$ |
922,644 |
|
|
|
Christopher J. Bernander
Chief Financial Officer, Treasurer
|
|
|
|
|
2024 |
|
|
|
|
$ |
425,635 |
|
|
|
|
$ |
200,585 |
|
|
|
|
$ |
366,603 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
10,350 |
|
|
|
|
$ |
1,003,173 |
|
|
| |
|
|
2023 |
|
|
|
|
$ |
393,839 |
|
|
|
|
$ |
22,000 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
10,181 |
|
|
|
|
$ |
426,020 |
|
|
|
Dr. Alan Law
|
|
|
|
|
2024 |
|
|
|
|
$ |
779,677 |
|
|
|
|
$ |
64,289 |
|
|
|
|
$ |
109,328 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
35,729 |
|
|
|
|
$ |
12,103 |
|
|
|
|
$ |
1,001,126 |
|
|
| |
|
|
2023 |
|
|
|
|
$ |
775,007 |
|
|
|
|
$ |
257,871 |
|
|
|
|
$ |
277,644 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
35,937 |
|
|
|
|
$ |
11,574 |
|
|
|
|
$ |
1,358,033 |
|
|
|
Dr. Christopher Steele
|
|
|
|
|
2024 |
|
|
|
|
$ |
526,610 |
|
|
|
|
$ |
80,563 |
|
|
|
|
$ |
111,119 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
3,886 |
|
|
|
|
$ |
10,350 |
|
|
|
|
$ |
732,528 |
|
|
| |
|
|
2023 |
|
|
|
|
$ |
533,606 |
|
|
|
|
$ |
179,080 |
|
|
|
|
$ |
705,550 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
3,677 |
|
|
|
|
$ |
9,900 |
|
|
|
|
$ |
1,431,813 |
|
|
(1)
The amount reported in this column reflects the aggregate grant date fair value of all equity awards calculated in accordance with Topic 718. The restricted stock granted vests (a) 25% upon the closing of this offering and 6.25% in each subsequent quarter over three years, and (b) 100% upon a change of control as defined in the agreement.
Compensation of Named Executive Officers
The Summary Compensation table above quantifies the value of the different forms of compensation earned by or awarded to our named executive officers for 2024 and 2023. The primary elements of each named executive officer’s total compensation reported in the table are base salary, an annual bonus, equity incentives consisting of restricted stock and nonequity incentive plan compensation and nonqualified deferred compensation.
The Summary Compensation table should be read in conjunction with the tables and narrative descriptions that follow. The Grants of Plan-Based Awards table, and the accompanying description of the material terms of our restricted stock grants, provides information regarding the long-term equity incentives awarded to our named executive officers. The section entitled “Outstanding Equity Awards at Year-End 2024” provides further information on the named executive officers’ potential realizable value and actual value realized with respect to their equity awards.
Description of Employment Agreements
Mr. Swenson Employment Agreement:
On January 1, 2024, we entered into an employment agreement with Mr. Swenson. The initial term of Mr. Swenson’s employment under the agreement is three years, with automatic one-year extensions each year unless either party provides notice that the term will not be extended. The agreement provides that Mr. Swenson’s base salary will be reviewed each year by the Board of Directors, which has discretion to increase (but not reduce) the base salary from the rate then in effect. Mr. Swenson’s current annual rate of base salary is $602,550. The agreement also provides for annual bonuses for Mr. Swenson with a target annual bonus equal to 75% of his base salary. The amount of the bonus is determined by the Board of Directors, taking into account the business performance and Mr. Swenson’s contribution for the applicable fiscal year and applying considerations that are consistent with those applied for determining annual bonuses for our other executive officers. Mr. Swenson is also entitled to participate in our standard benefit programs for our employees and reimbursement of his business expenses.
In addition, Mr. Swenson was issued 77,668 shares of unrestricted Common Stock and 144,241 shares of restricted Common Stock. The restricted stock vests (a) 25% upon the closing of this offering and 6.25% each subsequent quarter and (b) 100% upon a change of control as defined in the agreement.
Under his employment agreement, if Mr. Swenson’s employment is terminated by us without cause or by Mr. Swenson for good reason (as the terms “cause” and “good reason” are defined in his employment agreement), or if we provide notice that the term of the employment agreement will not be renewed (other than a non-renewal for cause), Mr. Swenson would be entitled to severance benefits equal to (1) his annual rate of base salary in effect at the time of the termination; (2) annual bonus at the “target bonus” level, prorated for the portion of the year through the date of termination and payable within 30 days after the date of termination; (3) all shares in us vested prior to the date of such termination; (4) vesting of any unvested incentive granted under our Equity Incentive Plans and any other payment and/or benefits which Mr. Swenson is entitled to receive under any of the benefit plans. In the event that such a termination of Mr. Swenson’s employment occurs upon or within the one-year period following a change in control of us, he would be entitled to receive, after execution of a general release, (a) base salary in effect at the time of the termination period for a period of 12 months following the termination of employment; (b) a bonus at the “target bonus” level, prorated for the portion of such fiscal year through the date of termination and payable within 30 days after the date of termination a lump sum payment equal to two times the sum of (1) his annual rate of base salary in effect at the time of the termination (2) all shares in us vested prior to the date of such termination; (3) vesting of any unvested incentives granted under our Equity Incentive Plans and any other payment and/or benefits which Mr. Swenson is entitled to receive under any of the benefit plans.
Mr. Swenson’s employment agreement also provides that in the event of a termination of his employment due to death or disability, he or his estate would be entitled to: (a) any Base Salary earned but unpaid as of the date of death; (b) any other payments and/or benefits which he or his legal representative is entitled to receive under any of the Benefit Plans; (c) all shares in us vested prior to the date of such termination; (d) vesting of any unvested incentive grants granted under the initial equity awards; and (d) a bonus payable under the Incentive Bonus Plan for the fiscal year in which the termination occurred, prorated for the portion of such fiscal year through the date of termination and payable within thirty (30) days after the date of termination of employment.
Mr. Bernander Employment Agreement:
On January 1, 2024, we entered into an employment agreement with Mr. Bernander. The initial term of Mr. Bernander’s employment under the agreement is three years, with automatic one-year extensions each year unless either party provides notice that the term will not be extended. The agreement provides that after the first year of the agreement, the Chief Executive Officer may, subject to the review and approval of the Compensation Committee, make changes to the base salary amount. Mr. Bernander’s current annual rate of base salary is $425,000. The agreement also provides for annual bonuses for Mr. Bernander with a target annual bonus equal to 50% of his base salary. The amount of the bonus is determined by the Board of Directors, taking into account the performance of us and Mr. Bernander for the applicable fiscal year and applying considerations that are consistent with those applied for determining annual bonuses for our other executive officers. Mr. Bernander is also entitled to participate in our standard benefit programs for our employees and reimbursement of his business expenses.
In addition, Mr. Bernander was awarded an equity award of 53,247 restricted shares of Common Stock that vest (a) 25% upon the closing of this offering and 6.25% on subsequent quarters and (b) 100% upon a change of control as defined in the agreement.
Under his employment agreement, if Mr. Bernander’s employment is terminated by us without cause or by Mr. Bernander for good reason (as the terms “cause” and “good reason” are defined in his employment agreement), or if we provide notice that the term of the employment agreement will not be renewed (other than a non-renewal for cause), Mr. Bernander would be entitled to severance benefits equal to (1) his annual rate of base salary in effect at the time of the termination; (2) his annual bonus at the “target bonus” level, prorated for the portion of the year through the date of termination and payable within 30 days after the date of termination; (3) all shares in us vested prior to the date of such termination; (4) vesting of any unvested incentive granted under our Equity Incentive Plans and any other payment and/or benefits which Mr. Bernander is entitled to receive under any of the benefit plans. In the event that such a termination of Mr. Bernander’s employment occurs upon or within the one-year period following a change in control of us, he would be entitled to receive, after execution of a general release, (a) base salary in effect at the time of the termination period for a period of 12 months following the termination of employment; (b) a bonus at
the “target bonus” level, prorated for the portion of such fiscal year through the date of termination and payable within 30 days after the date of termination a lump sum payment equal to two times the sum of (1) his annual rate of base salary in effect at the time of the termination (3) all shares in us vested prior to the date of such termination; (4) vesting of any unvested incentive granted under our Equity Incentive Plans and any other payment and/or benefits which Mr. Bernander is entitled to receive under any of the benefit plans.
Mr. Bernander’s employment agreement also provides that in the event of a termination of his employment due to death or disability, he or his estate would be entitled to entitled to: (a) any Base Salary earned but unpaid as of the date of death; (b) any other payments and/or benefits which he or his legal representative is entitled to receive under any of the Benefit Plans; (c) all shares in us vested prior to the date of such termination; (d) vesting of any unvested incentive grants granted under the initial equity awards; and (d) a bonus payable under the Incentive Bonus Plan for the fiscal year in which the termination occurred, prorated for the portion of such fiscal year through the date of termination and payable within thirty (30) days after the date of termination of employment.
Provisions of the named executive officers’ employment agreements relating to outstanding equity incentive awards and post-termination of employment benefits are discussed below.
Grants of Plan-Based Awards in 2024
The following table presents information regarding awards of cash incentives and Common Stock granted to our named executive officers in 2024.
| |
|
|
Grant
Date
|
|
|
Estimated Potential Payouts
Under Non-Equity Incentive
Plan Awards
|
|
|
Stock Awards:
Number of
Shares (Restricted)
(#)
|
|
|
Stock Awards:
Number of
Shares (Unrestricted)
(#)
|
|
|
Exercise or
Base Price of
Option Awards
($/Sh)
|
|
|
Grant Date
Fair Value of
Stock and
Option Awards
($)(2)
|
|
|
Name
|
|
|
Threshold
($)(1)
|
|
|
Target
($)
|
|
|
Maximum
($)
|
|
|
Peter G. Swenson
|
|
|
|
|
1/1/24 |
|
|
|
|
|
|
|
$ |
451,913 |
|
|
|
|
$ |
621,380 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
1/1/24 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
77,688 |
|
|
|
|
|
|
|
$ |
529,281 |
|
|
| |
|
|
1/1/24 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
144,241 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
982,281 |
|
|
| |
|
|
2/1/24 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,283 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
90,457 |
|
|
|
Christopher J. Bernander
|
|
|
|
|
1/1/24 |
|
|
|
|
|
|
|
$ |
212,500 |
|
|
|
|
$ |
292,188 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
2/1/24 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
586 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,991 |
|
|
| |
|
|
2/12/24 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
53,247 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
362,612 |
|
|
|
Dr. Alan Law
|
|
|
|
|
1/1/24 |
|
|
|
|
|
|
|
$ |
75,000 |
|
|
|
|
$ |
103,125 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
2/1/24 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,054 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
109,328 |
|
|
|
Dr. Christopher Steele
|
|
|
|
|
1/1/24 |
|
|
|
|
|
|
|
$ |
150,000 |
|
|
|
|
$ |
206,250 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
2/1/24 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,317 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
111,119 |
|
|
(1)
The Non-Equity incentive plan does not have a minimum payment threshold, and accordingly participants may receive $0 under the plan.
(2)
The amount reported in this column reflects the grant date fair value of equity awards calculated in accordance with Topic 718. The restricted stock granted vests (a) 25% upon the closing of this offering and 6.25% in subsequent quarters over three years and (b) 100% upon a change of control as defined in the agreement.
Description of Stock Awards
Each of the awards reported in the Grants of Plan-Based Awards table was granted under our 2023 Equity Incentive Plan or 2023 Restricted Stock Plan (the “Equity Incentive Plans”). The material terms of each restricted stock award granted in 2024 was (a) 25% upon closing of this offering and 6.25% on subsequent quarters and (b) 100% upon a change of control as defined in the agreement.
After the consummation of this offering, the Equity Incentive Plans will be administered by the Compensation Committee. Prior to this offering, our Board of Directors administered the plans. The Compensation Committee will have authority to interpret the plans’ provisions and make all required determinations under the plans. This authority includes making required proportionate adjustments to outstanding awards upon the occurrence of certain corporate events such as reorganizations, mergers and stock splits, and making provision to ensure that any tax withholding obligations incurred in respect of awards are satisfied. Awards granted under the plans are generally only transferable to a beneficiary of a named executive officer upon his or her death. However, awards may be transferred under limited circumstances, provided that such transfers comply with applicable securities laws.
If we undergo a change in control, each named executive officer’s outstanding stock awards will generally become fully vested and exercisable, pursuant to the award agreements under which the restricted stock awards were granted.
Subject to any accelerated vesting that may apply in the circumstances, the unvested portion of a stock award will immediately terminate upon a termination of the named executive officer’s employment. If the named executive officer is terminated by us for cause, the shares of Common Stock (whether or not vested) will immediately terminate.
The restricted stock awards granted to the named executive officers do not include any dividend rights.
Outstanding Equity Awards At Year-End 2024
At December 31, 2024, our named executive officers held the following equity awards:
Peter G. Swenson — 77,688 unrestricted shares of common stock and 157,524 shares of restricted stock.
Christopher J. Bernander — 53,833 shares of restricted stock.
Such awards had a fair value at December 31, 2024 of $8.93 per share.
All shares of restricted common stock subject to continued performance obligations to vest. Restricted shares vest 25% upon completion of our initial public offering and 6.25% per quarter thereafter.
Stock Vested in 2024
No restricted stock held by our named executive officers vested during 2024.
Pre-IPO Restricted Stock
Shares of restricted Common Stock were granted to the named executive officers and certain dentists employed by our affiliated dental practices prior to this offering, to reflect prior securities issued to such persons prior to our October 1, 2023 formation. To the extent then outstanding and unvested, such restricted shares will become 25% vested upon completion of this offering and will vest 6.25% quarterly thereafter. Such shares also become fully vested upon a change in control.
2023 Restricted Stock Plan
The 2023 Restricted Stock Plan was originally adopted in October 2023. The 2023 Restricted Stock Plan was terminated as to future awards on April 23, 2025.
Total Shares Reserved for Issuance
Subject to equitable adjustment in the event of any stock split, stock dividend, or similar transaction, the total number of shares of Common Stock reserved for issuance in connection with awards under the 2023 Restricted Stock Plan is 6,625,000. If any awards are forfeited, canceled, terminated, exchanged, or surrendered, or such award is settled in cash or otherwise terminates without a distribution of shares to the participant, any shares counted against the number of shares reserved and available under the 2023 Restricted Stock Plan with respect to such award are, to the extent of any such forfeiture, settlement,
termination, cancellation, exchange, or surrender, again available for awards under the 2023 Restricted Stock Plan. Any shares of Common Stock issued pursuant to an award may be either authorized and unissued shares or treasury shares, including shares acquired by purchase in the open market or in private transactions.
Administration
The 2023 Restricted Stock Plan is administered by the Compensation Committee of the Board of Directors (the “Committee”), and the Committee has full and final authority to make all decisions and determinations as may be required under the terms of the 2023 Restricted Stock Plan or as the Committee may deem necessary or advisable for the administration of the 2023 Restricted Stock Plan, in each case subject to and consistent with the provisions of the 2023 Restricted Stock Plan. The Committee may allocate or delegate to any one or more of its members, the other members of the Board of Directors, or our senior officers or any of our subsidiaries or affiliates, all or any part of its responsibilities and powers under the 2023 Restricted Stock Plan, subject to such terms as the Committee shall determine; provided, however, that only the Committee, or other committee consisting of two or more of our directors, all of whom are “non-employee director” within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), may select and grant awards to participants who are subject to Section 16 of the Exchange Act. Subject to the provisions of the 2023 Restricted Stock Plan, the Committee may select employees to whom awards may be granted, determine the number of awards to be granted and the number of shares to which an award may relate, and determine the terms and conditions of any award granted under the 2023 Restricted Stock Plan.
Eligibility and Participation
Prior to the April 23, 2025 termination for future awards, the 2023 Restricted Stock Plan was open to any of our employees, employees of any of our subsidiaries, or employees of any of our affiliates. An award may be granted to an employee in connection with his or her employment or retention by us, our subsidiary, or our affiliate.
During the year ended December 31, 2024, two employees received awards under the 2023 Restricted Stock Plan. No grants were made under the 2023 Restricted Stock Plan during 2025.
Restricted Share Awards
Awards of restricted shares are subject to such restrictions on transferability and other restrictions, if any, as the Committee may impose. Such restrictions lapse under circumstances as the Committee may determine, including upon a specified period of continued employment or upon the achievement of performance criteria. An eligible employee granted restricted shares has all of the rights of a shareholder, with the exception of voting and dividend rights. Except as otherwise determined by the Committee, upon termination of service during the applicable restriction period, unvested restricted shares will be forfeited.
Restricted Stock Awards
Each restricted stock awarded represents a right for one share of common stock to be delivered upon settlement of the award, which right shall be subject to a risk of forfeiture and cancellation and to the other terms and conditions set forth in the 2023 Restricted Stock Plan and the award agreement. A restricted stock award agreement may provide for forfeiture and cancellation of the restricted stock award upon termination of the participant’s employment with us or nonperformance of specified performance measures established by the Committee. A restricted stock award agreement may also provide for vesting periods which require the passage of time and/or the occurrence of events in order for the restricted stock to vest and become no longer subject to forfeiture. Restricted stock units shall not be credited with dividend equivalents unless specifically provided for in the award agreement, and then only upon such terms and conditions as set forth in the award agreement.
Restricted stock awards (if not previously canceled or forfeited) shall be settled in accordance with the terms and conditions of the applicable award agreement. A restricted stock award agreement may provide
that settlement may be made solely through the issuance of shares or, at the mutual election of the participant and us, in a combination of shares and cash.
Nontransferability
Unless otherwise set forth by the Committee in an award agreement, awards are not transferable by an eligible employee (defined as individuals employed by the DRO or its affiliated dental practices) except by will or the laws of descent and distribution (except pursuant to a beneficiary designation). An eligible employee’s rights under the 2023 Restricted Stock Plan may not be pledged, mortgaged, hypothecated, or otherwise encumbered, and may not be subject to claims of the eligible employee’s creditors.
Amendment
The Committee may amend, alter, suspend, discontinue, or terminate the 2023 Restricted Stock Plan without the consent of our shareholders or participants, except that any such amendment or alteration shall be subject to the approval of our shareholders to the extent such shareholder approval is required under the rules of any stock exchange or automated quotation system on which the shares may then be listed or quoted. However, without the consent of an affected participant, no amendment, alteration, suspension, discontinuation, or termination of the 2023 Restricted Stock Plan may materially and adversely affect the rights of such participant under any award previously granted to the participant.
Duration
The 2023 Restricted Stock Plan was terminated as to future awards on April 23, 2025.
2023 Equity Incentive Plan
Upon the recommendation of the Compensation Committee, the Board adopted and the shareholders approved the 2023 Equity Incentive Plan for Park Dental Partners, Inc., which we refer to as the “2023 Equity Incentive Plan.” The material features of the Equity Incentive Plan are discussed below.
General
Purpose
The purpose of the 2023 Equity Incentive Plan is to advance our interests and increase shareholder value by providing additional incentives to attract, retain and motivate those qualified and competent employees (defined as individuals employed by the DRO or its affiliated dental practices), directors and consultants upon whose efforts and judgment our success is largely dependent.
Eligibility and Participation
Awards may be granted pursuant to the 2023 Equity Incentive Plan to any of our present or future employees, consultants and outside directors. Actual selection of any eligible individual to receive an award pursuant to the 2023 Equity Incentive Plan is within the sole discretion of the Compensation Committee or its authorized delegate (where applicable, references herein to the Compensation Committee are inclusive of its authorized delegate). “Incentive stock options” may be granted only to employees, and all other awards may be granted to either employees, employees of any of our affiliates, consultants or outside directors.
As of June 30, 2025, persons eligible to participate in the plan total approximately three (3) nonemployee directors and 1,195 employees and consultants.
During the six month period ended June 30, 2025, two employees, and three independent Board members received restricted awards under the 2023 Equity Incentive Plan.
Types of Awards
The 2023 Equity Incentive Plan authorizes the granting of restricted stock. A restricted stock award is the grant of shares of our Common Stock that are nontransferable and may be subject to substantial risk of
forfeiture until specific conditions are met. The vesting and number of shares of a restricted stock award may be determined by the Compensation Committee. An eligible employee granted restricted shares has all of the rights of a shareholder, with the exception of voting and dividend rights.
The 2023 Equity Incentive Plan also authorizes awards of “incentive stock options” and “non-qualified stock options” to purchase shares of our Common Stock. The maximum number of shares of Common Stock available for issuance pursuant to incentive stock options granted under then 2023 Equity Incentive Plan is the same as the number of shares of Common Stock available for issuance under the 2023 Equity Incentive Plan. In accordance with the rules under the Code, for incentive stock options, the 2023 Equity Incentive Plan provides that incentive stock options granted to any particular employee may not first become exercisable for more than $0.1 million in fair market value of the Common Stock (measured on the grant date) in any calendar year. If incentive stock options granted to a participant would vest for more than $0.1 million in any calendar year, then such incentive stock options will, to such extent, be treated as non-statutory stock options. Unless the context otherwise requires, the term “options” includes both incentive stock options and non-qualified stock options.
The 2023 Equity Incentive Plan also authorizes the granting of stock appreciation rights, or “SARs.” A SAR is the right to receive payment of an amount equal to the excess of the fair market value of a share of our Common Stock on the date of exercise of the SAR over the grant price of the SAR (which grant price may not be less than the fair market value of a share of our Common Stock on the date of grant of the SAR). SARs may be granted under the 2023 Equity Incentive Plan in tandem with other awards.
The 2023 Equity Incentive Plan also authorizes awards of restricted stock units that, once vested (based on the criteria the Compensation Committee establishes, which may be based on the passage of time or the attainment of performance-based conditions), may be settled in a number of shares of our Common Stock equal to the number of units earned, or in cash equal to the fair market value of the number of shares of our Common Stock (or a combination of stock and cash) earned in respect of the number of units earned.
The 2023 Equity Incentive Plan also authorizes awards of performance shares and awards intended to be performance-based awards that are payable in stock, cash, or a combination of stock and cash. Any performance-based awards granted will vest upon the achievement of performance objectives. The Compensation Committee will establish the performance measure as well as the length of the performance period.
Administration
The 2023 Equity Incentive Plan is administered by the Compensation Committee (or by the Board of Directors to the extent reserved or determined by the Board of Directors). The Compensation Committee has the authority to interpret and adopt rules and regulations for carrying out the 2023 Equity Incentive Plan. All decisions and acts of the Compensation Committee shall be final and binding on all participants under the 2023 Equity Incentive Plan.
The Compensation Committee will have the full power and authority under the 2023 Equity Incentive Plan to:
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designate participants to receive awards;
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determine the type or types of awards to be granted to each participant;
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determine the number of awards to be granted and the number of shares to which an award will relate;
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determine the terms and conditions of any award, including, but not limited to, the exercise price, grant price, or purchase price, any restrictions or limitations on the award, any schedule for lapse of forfeiture restrictions or restrictions on the exercisability of an award, and accelerations or waivers thereof, any provisions related to non-competition and recapture of gain on an award, based in each case on such considerations as the Compensation Committee in its sole discretion determines;
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determine whether, to what extent, and pursuant to what circumstances an award may be settled in, or the exercise price of an award may be paid in, cash, shares, other awards, or other property, or an award may be canceled, forfeited, or surrendered;
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prescribe the form of each award agreement, which need not be identical for each participant;
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decide all other matters that must be determined in connection with an award;
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establish, adopt, or revise any rules and regulations as it may deem necessary or advisable to administer the 2023 Equity Incentive Plan;
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suspend or terminate the 2023 Equity Incentive Plan at any time provided that such suspension or termination does not impair rights and obligations under any outstanding award without written consent of the affected participant;
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interpret the terms of, and any matter arising pursuant to, the 2023 Equity Incentive Plan or any award agreement thereunder; and
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make all other decisions and determinations that may be required pursuant to the Equity Incentive Plan or as the Compensation Committee deems necessary or advisable to administer the Equity Incentive Plan.
Authorized Shares and Share Counting Method
The number of shares of our Common Stock that may be issued pursuant to awards granted under the 2023 Equity Incentive Plan as of June 30, 2025 is 1,163,438 shares of our Common Stock, subject to adjustment as discussed below. The number of shares subject to the 2023 Equity Incentive Plan automatically increases on February 1st of each calendar year, for a period of not more than ten (10) years, beginning on February 1, 2024 and ending on (and including) February 1, 2033 (each, an “Evergreen Date”) in an amount equal to five percent (5%) of the total number of shares of our Common Stock outstanding on the January 31st immediately preceding the applicable Evergreen Date (the “Evergreen Increase”). The Board may act prior to the Evergreen Date of a given year to provide that there will be no Evergreen Increase for such year, or that the Evergreen Increase for such year will be a lesser number of shares of our Common Stock than would otherwise occur pursuant to the preceding sentence.
Authorized shares are counted and subject to adjustments, as described below:
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Shares that are subject to stock options, restricted stock awards, restricted stock unit awards, performance shares and other share-based awards and SARs shall be counted as one share for every one share subject to stock options and SARs.
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The following shares shall not be added back to the number of shares authorized: shares tendered or withheld to satisfy the grant or exercise price or tax withholding obligation related to any award; shares not issued or delivered as a result of the net settlement of an outstanding stock option or SAR; and shares repurchased by us on the open market with the cash proceeds of the exercise price from stock options.
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To the extent that any share-based award under the 2023 Equity Incentive Plan terminates, expires, is cancelled or is paid in cash, the available shares subject to such award shall remain available shares; shares will be added back as one share.
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Substitute awards issued in connection with acquiring other companies shall neither increase nor decrease the shares authorized under the 2023 Equity Incentive Plan.
Granting of Awards
The Compensation Committee may from time-to-time grant awards in its discretion. In granting awards, the Compensation Committee may take into consideration the contribution the eligible person has made or may be reasonably expected to make to our success and such other factors as the Compensation Committee determines. The number of discretionary grants to be made under the 2023 Equity Incentive Plan in the future to our directors and executive officers, including our named executive officers and employees of our affiliates, and the dollar values of such grants, are not determinable.
Exercise Price of Options and Grant Price of SARs
The exercise price of options granted under the 2023 Equity Incentive Plan shall be any price determined by the Compensation Committee, but may not be less than the fair market value of our Common Stock on the date of grant. The exercise price of incentive stock options shall not be less than 110% of the fair market value on the date of grant if the optionee owns, directly or indirectly, stock possessing more than 10% of the total combined voting power of all classes of our stock.
The grant price of SARs granted under the 2023 Equity Incentive Plan shall be determined by the Compensation Committee, and may not be less than the fair market value of our Common Stock on the date of grant.
Payment of Exercise Price
Unless further limited by the Compensation Committee, the exercise price of an option shall be paid solely in cash, by certified or cashier’s check, by wire transfer, by money order, by personal check, by delivery of shares of our Common Stock if expressly permitted by the terms of the option (including withholding of shares otherwise deliverable upon exercise of the option by “net exercise” or otherwise), by promissory note bearing interest at no less than such rate as shall then preclude the imputation of interest under the Code, other property acceptable to the Compensation Committee, or by a combination of the foregoing. If the exercise price is paid in whole or in part with shares of our Common Stock, the value of the shares surrendered shall be their fair market value on the date surrendered.
Exercisability of Options and SARs
Each option and SAR shall become exercisable in whole or in part and cumulatively, and shall expire, according to the terms of the option or the SAR, as applicable, to the extent not inconsistent with the express provisions of the 2023 Equity Incentive Plan. In addition, in the case of the grant of an option to an officer, the Compensation Committee may provide that no shares acquired on the exercise of such option shall be transferable during such six (6) month period following the date of grant of such option.
The Compensation Committee, in its sole discretion, may accelerate the date on which all or any portion of an otherwise unexercisable option or SAR may be exercised or a restriction will lapse.
Price of Restricted Stock
The price, if any, to be paid by a recipient for restricted stock awarded under the 2023 Equity Incentive Plan shall be determined by the Compensation Committee. As a condition to the grant of a restricted stock award, if required by applicable law, the Compensation Committee will require the person receiving the award to pay to us an amount equal to the par value of the restricted stock granted under the award.
Expiration of Options
The expiration date of an option will be determined by the Compensation Committee at the time of the grant. However, unless the terms of the option expressly provide for a different date of termination, the unexercised portion of the option shall automatically and without notice terminate and become null and void on the earlier of:
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the date that the holder ceases to be employed by or provide services to us, if such cessation is for “Cause,” as defined in the 2023 Equity Incentive Plan;
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three (3) months following the date on which the holder ceases to be employed by or provide services to us or any affiliate for any reason other than because of the holder’s death or disability or for Cause;
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the first anniversary of the date on which the holder ceased to be employed by or provide services to us or any affiliate by reason of the holder’s death or disability; or
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the tenth anniversary of the date of grant.
Restrictions on Transfer of Awards
No award granted under the 2023 Equity Incentive Plan is transferable otherwise than by will or by the laws of descent and distribution. However, the Compensation Committee by express provision in the award or an amendment thereto may permit awards to be transferred (without consideration) to, exercised by and paid to certain persons or entities related to the participant, including, but not limited to, members of the participant’s family, charitable institutions, or trusts or other entities whose beneficiaries or beneficial owners are members of the participant’s family and/or charitable institutions, or to such other persons or entities as may be expressly approved by the Compensation Committee, pursuant to such conditions and procedures as the Compensation Committee may establish.
During the lifetime of a participant, each award will be exercisable only by the participant or the guardian or legal representative of the participant.
Restrictions on Transfer of Restricted Stock
A participant may not sell, transfer, assign or pledge shares of restricted stock until the shares have vested. Stock certificates representing the restricted stock shall be held by us bearing a legend to restrict transfer of the certificate until the restricted stock has vested. At the time the restricted stock vests, a certificate for the vested shares will be delivered to the participant and, if the award agreement so provides, dividend equivalents accrued on the restricted stock from the date of grant.
Vesting of Restricted Stock and Restricted Stock Units
In granting restricted stock and restricted stock unit awards, the Compensation Committee, in its sole discretion, may determine the terms and conditions under which such awards shall vest.
The Compensation Committee also has the right, exercisable in its sole discretion, to accelerate the date on which restricted stock and restricted stock units may vest or otherwise waive or amend any conditions in respect of a grant of restricted stock or restricted stock units.
Dividends and Dividend Equivalents
The Compensation Committee may provide that any award (other than options and SARs) shall earn dividends or dividend equivalents (payable in cash or additional shares, or a combination of cash and shares). Notwithstanding the foregoing, dividends or dividend equivalents may not be paid with respect to any award that is subject to the achievement of performance criteria (including time-based vesting conditions), unless and until the relevant performance criteria have been satisfied. Generally, holders of restricted stock and restricted stock units do not receive dividend equivalents on unvested shares. No dividends or dividend equivalents will be paid on options or SARs.
Minimum Vesting Requirement
A one-year minimum vesting requirement will generally apply to all awards, with the exception of awards granted that vest based on a change of control or public transaction. In addition, the one-year minimum vesting requirement does not apply to awards granted to, among others, non-employee directors that vest on the earlier of the one-year anniversary of the grant date and the next annual meeting of shareholders that occurs at least 50 weeks after the prior year’s annual meeting. We anticipate that awards granted following our public offering will include a one-year minimum vesting requirement.
Terms of Performance Awards
The Compensation Committee may grant performance awards to any person who is eligible to receive an award pursuant to the Equity Incentive Plan which are conditioned on the satisfaction of performance objectives, including those comprising one or more of the performance measures under a performance-based award, as the Compensation Committee, in its sole discretion, may select.
Performance-based awards, in the sole discretion of the Compensation Committee, may be made in the form of:
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Shares or unit equivalents to shares of our Common Stock (including, without limitation, shares of restricted stock subject to restrictions that will lapse on the basis of the satisfaction of the selected performance measure(s));
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cash; or
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a combination of shares of our Common Stock and cash.
The Compensation Committee shall establish the performance measures which will be required to be satisfied during the performance period in order to earn the amounts specified in a performance-based award, as well as the duration of any performance period, each of which may differ with respect to each covered person, or with respect to separate performance-based awards issued to the same covered person.
Change in Control
In the event of the occurrence of a “change in control” as defined in the 2023 Equity Incentive Plan, absent a different provision in an award agreement, the Compensation Committee or the Board may, in its sole discretion, provide for any of the following to be effective upon the consummation of the event:
(i)
either (A) termination of any such award, whether or not vested, in exchange for an amount of cash and/or other property, if any, equal to the amount that would have been attained upon the exercise of such award or realization of the participant’s vested rights or (B) the replacement of such award with other rights or property selected by the Compensation Committee or the Board of Directors, in its sole discretion;
(ii)
that such award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;
(iii)
that the award shall be exercisable or payable or fully vested with respect to all shares covered thereby, notwithstanding anything to the contrary in the applicable award agreement; or
(iv)
that the award cannot vest, be exercised or become payable after a date certain in the future, which may be the effective date of such event.
Prohibition on Repricing
Repricing of outstanding stock options or SARs and repurchases of “underwater” stock options or SARs is prohibited without shareholder approval.
Clawback/Recovery
All awards granted under the 2023 Equity Incentive Plan will be subject to recoupment in accordance with any clawback policy that we adopt pursuant to the listing standards of any national securities exchange or association on which our securities are listed. In addition, the Compensation Committee may impose such other clawback, recovery or recoupment provisions on an award as the Compensation Committee determines necessary or appropriate in view of applicable laws, governance requirements or best practices, including, but not limited to, a reacquisition right in respect of previously acquired shares or other cash or property upon the occurrence of cause (as determined by the Compensation Committee).
Expiration of the Equity Incentive Plan
The Equity Incentive Plan terminates on September 13, 2033.
Adjustments
The 2023 Equity Incentive Plan provides for adjustments to (a) the aggregate number and kind of shares that may be issued, (b) the terms and conditions of any outstanding awards (including, any applicable performance targets or criteria with respect thereto), and (c) the grant or exercise price per share for
outstanding awards, in the event of any stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of our assets to shareholders, or any other change affecting the shares or the price of the shares other than an equity restructuring.
Amendments
The Compensation Committee (with the approval of the Board of Directors) may amend or modify the 2023 Equity Incentive Plan at any time, provided that no amendment may, without the approval of our shareholders:
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increase the number of shares available for issuance under the 2023 Equity Incentive Plan; or
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permit the Compensation Committee to extend the exercise period for an option beyond ten (10) years from the date of grant.
Notwithstanding any provision in the 2023 Equity Incentive Plan to the contrary, absent approval of our shareholders, no option or SAR may be amended to reduce the per-share exercise price of the shares subject to such option or SAR below the per-share exercise price as of the date of grant and, except as otherwise permitted in the 2023 Equity Incentive Plan, (a) no option or SAR may be granted in exchange for, or in connection with, the cancellation, surrender or substitution of an option or SAR having a higher per-share exercise price and (b) no option or SAR may be cancelled in exchange for, or in connection with, the payment of a cash amount or another award at a time when the option or SAR has a per-share exercise price that is higher than the fair market value of a share.
In addition, in general no amendment shall adversely affect in any material way any award previously granted pursuant to the 2023 Equity Incentive Plan without the prior written consent of the participant; provided, however, that an amendment or modification that may cause an incentive stock option to become a non-qualified stock option shall not be treated as adversely affecting the rights of the participant.
Securities Registration
We plan to register under the Securities Act of 1933, as amended (the “Securities Act”), the issuance of the shares of stock authorized for issuance under the 2023 Restricted Stock Plan, the 2023 Equity Incentive Plan, and the 2025 Employee Stock Purchase Plan. Accordingly, participants will be able to sell such shares issued under the plans, subject to other requirements of the Securities Act.
2025 Employee Stock Purchase Plan
We have adopted, and our shareholders have approved, an Employee Stock Purchase Plan (“ESPP”). The ESPP is designed to allow our eligible employees and employees of affiliated entities to purchase shares of our Common Stock, at periodic intervals, with accumulated payroll deductions. The ESPP consists of two components: a Section 423 component, which is intended to qualify under Section 423 of the Code and a non-Section 423 component, which need not qualify under Section 423 of the Code. The material terms of the ESPP as currently contemplated are summarized below. This summary is not a complete description of all provisions of the ESPP and is qualified in its entirety by reference to the ESPP, which is filed as an exhibit to the registration statement of which this prospectus is a part.
Shares Available; Administration
The aggregate number of shares of our Common Stock that will initially be reserved for issuance under the ESPP will be equal to 250,000 shares of Common Stock. Our Board of Directors or the Compensation Committee will have authority to interpret the terms of the ESPP and determine eligibility of participants. The Compensation Committee will be the initial administrator of the ESPP.
Eligibility
The plan administrator may designate certain of our subsidiaries or affiliated entities as participating entities in the ESPP and may change these designations from time to time. We expect that our employees and employees of our affiliates, other than employees who, immediately after the grant of a right to purchase common stock under the ESPP, would own (directly or through attribution) stock possessing 5% or more
of the total combined voting power or value of all classes of our common or other class of stock, will be eligible to participate in the ESPP.
Grant of Rights
The Section 423 component of the ESPP will be intended to qualify under Section 423 of the Code and shares of our Common Stock will be offered under the ESPP during offering periods. The length of the offering periods under the ESPP will be determined by the plan administrator and may be up to 6 months long. Employee payroll deductions will be used to purchase shares on each purchase date during an offering period. The purchase dates for each offering period will be the final trading day in each purchase period. Offering periods under the ESPP will commence when determined by the plan administrator. The plan administrator may, in its discretion, modify the terms of future offering periods. We do not expect that any offering periods will commence under the ESPP until January 1, 2026.
The ESPP will permit participants to purchase Common Stock through payroll deductions of up to a percentage of their eligible compensation, which includes a participant’s gross base compensation for services. Under the plan, no employee will be permitted to accrue the right to purchase stock under the ESPP at a rate in excess of $25,000 worth of shares during any calendar year during which such a purchase right is outstanding (based on the fair market value per share of our common stock as of the first trading day of the offering period).
Commencing January 1, 2026, each participant will automatically be granted an option to purchase shares of our Common Stock. The option will expire at the end of the applicable offering period and will be exercised on each purchase date during such offering period to the extent of the payroll deductions accumulated during the offering period. The purchase price will be the lower of 85% of the fair market value of a share on the first day of an offering period in which a participant is enrolled or 85% of the fair market value of a share on the purchase date, which will occur on the last day of each purchase period. Participants may voluntarily end their participation in the ESPP prior to the end of the applicable offering period and will be paid their accrued payroll deductions that have not yet been used to purchase shares of Common Stock.
Unless a participant has previously canceled his or her participation in the ESPP before the purchase date, the participant will be deemed to have exercised his or her option in full as of each purchase date. Upon exercise, the participant will purchase the number of whole shares that his or her accumulated payroll deductions will buy at the option purchase price, subject to the participation limitations listed above. Participation will end automatically upon a participant’s termination of employment.
A participant will not be permitted to transfer rights granted under the ESPP other than by will, the laws of descent and distribution or as otherwise provided under the ESPP.
Certain Transactions
In the event of reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, offerings of rights, or any other change in the structure of the Common Stock of the Company, the committee may make such adjustment, if any, as it may deem appropriate in the number, kind, and the price of shares available for purchase under the ESPP, and in the number of shares which a participant is entitled to purchase including, without limitation, closing an offering early and permitting purchase on the last business day of the reduced offering period, or terminating an offering and refunding participants’ account balances.
Plan Amendment and Termination
The plan administrator may amend, suspend or terminate the ESPP at any time. However, shareholder approval will be obtained for any amendment to the ESPP that increases the aggregate number or changes the type of shares that may be sold pursuant to rights under the ESPP or as may otherwise be required under Section 423(b) of the Code or other applicable law.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Promissory Notes
Between October 12, 2007 and January 1, 2008, we borrowed a total of $1,600,000 from Mr. Nick Swenson, who is the brother of Mr. Peter Swenson, our Chief Executive Officer and Chairman of the Board of Directors, under a series of secured promissory notes, each with a maturity date of October 1, 2037. These secured notes were established to provide us with capital and liquidity to continue operations after separation from American Dental Partners in 2007. Additional holders of secured promissory notes entered into in 2007 included:
$69,767 from Mr. Peter Swenson, who is our Chief Executive Officer and Chairman of the Board of Directors
$69,767 from Dr. Christopher Steele, who is a member of our Board of Directors
$69,767 from Dr. Alan Law, who is a member of our Board of Directors
Interest on each of the aforementioned notes is equal to the greater of 14% of the principal balance or an amount based on a formula using average dentist compensation or a formula based on total revenue of the DRO and affiliated dental practices. The effective interest rate for 2024 and 2023 was 28.0% and 28.1%, respectively. These subordinated notes have significant prepayment restrictions, whereby lender approval is required for any prepayment to occur, except as it relates to the outstanding notes above held by Mr. Peter Swenson, Dr. Steele, and Dr. Law may be prepaid by the Company upon the death of the respective holder.
The aggregate interest expense in connection with the aforementioned notes for the years ended December 31, 2024 and 2023 totaled $606,628 and $608,097, respectively.
Deferred Compensation Plans
As of December 31, 2024, Mr. Peter Swenson, Dr. Christopher Steele, and Dr. Alan Law participate in company sponsored deferred compensation plans, which obligates the Company to make future payments to the participants of $2,352,493, $921,208, and $2,090,737, respectively.
Building Funds
On or about June 12, 2018, Mr. Peter Swenson, who is our Chief Executive Officer and Chairman of the Board of Directors, contributed a total of $30,000 to Dental Building Fund I, LLC, and on or about May 18, 2021, contributed a total of $60,000 to Dental Building Fund II, LLC, both in exchange for units of limited liability company interest in the applicable entity.
On or about June 12, 2018, Dr. Christopher Steele, who is a member of our Board of Directors, contributed a total of $80,000 to Dental Building Fund I, LLC, and on or about May 18, 2021, contributed a total of $160,000 to Dental Building Fund II, LLC, both in exchange for units of limited liability company interest in the applicable entity.
On or about June 12, 2018, Dr. Alan Law, who is a member of our Board of Directors, contributed a total of $94,000 to Dental Building Fund I, LLC, and on or about May 18, 2021, contributed a total of $160,000 to Dental Building Fund II, LLC, both in exchange for units of limited liability company interest in the applicable entity.
On or about June 12, 2018, Dr. Todd Gerlach, who is a member of our Board of Directors, contributed a total of $30,000 to Dental Building Fund I, LLC, and on or about May 18, 2021, contributed a total of $40,000 to Dental Building Fund II, LLC, both in exchange for units of limited liability company interest in the applicable entity.
All of the above contributions were structured as passive real estate investments and were only offered to then-existing equity holders and key executives of each of the Professional Associations. Dental Building Fund I, LLC, owns a 49% passive ownership interest in five (5) different real estate ownership entities, and
the controlling 51% ownership interest in each such real estate ownership entity belongs to an unrelated third party. Dental Building Fund II, LLC, owns a 49% passive ownership interest in four (4) different real estate ownership entities, and the controlling 51% ownership interest in each such real estate ownership entity belongs to an unrelated third party.
Each real estate ownership entity owns a real estate asset, and each such underlying real estate asset is leased by us from the applicable real estate ownership entity. The aggregate rent expense in connection with the five (5) real estate assets that are indirectly partially owned by Dental Building Fund I, LLC, for the years ended December 31, 2024 and 2023 totaled $944,174 and $930,666, respectively. The aggregate rent expense in connection with the four (4) real estate assets that are indirectly partially owned by Dental Building Fund II, LLC, for the years ended December 31, 2024 and 2023 totaled $928.492 and $906,662, respectively.
Shareholder Promissory Notes
In connection with the vesting of the 869,313 shares of restricted stock upon the consummation of the offering, we intend to offer promissory notes to certain doctor/shareholders with a one-year maturity at market interest rates for one year duration to provide liquidity options for tax obligations that may be due in connection with vesting of such shares of restricted stock. The amount of the loan to each individual will be capped at 31% of the value of the vested stock and the Company presently estimates that the aggregate amount of such loans would not exceed $ , based on the sale of Common Stock in this offering (assuming an initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus). The loan plan will not be available to Executive Officers and Directors of the Company shareholders who opt to receive this promissory note will be subject to a 365 day lock-up restriction.
Directed Share Program
At our request, the underwriters have reserved in aggregate up to % of our shares of common stock offered by this prospectus for sale, at the initial public offering price, to certain individuals, including our directors, executive officers and employees, to the extent permitted under applicable laws and regulations in the United States and in various countries. These shares will be subject to a 180-day lock-up restriction. For additional information regarding the directed share program, please refer to section entitled “Underwriting.”
Review, Approval or Ratification of Related Party Transactions
Upon completion of this offering, our Corporate Governance and Nominating Committee will be responsible for reviewing all related party transactions that are required to be disclosed under the SEC rules. The Corporate Governance and Nominating Committee will, initially authorize or ratify all such related party transactions in accordance with written policies and procedures established by our Board of Directors from time to time.
We anticipate that the policies and procedures will provide that, in determining whether or not to recommend the initial approval or ratification of a related party transaction, the committee will consider all of the relevant facts and circumstances available, including (if applicable), but not limited to: (1) the nature of the related party’s interest in the transaction; (2) the approximate dollar value of the transaction; (3) the approximate dollar value of the related party’s interest in the transaction without regard to the amount of any profit or loss; (4) whether the transaction was or will be undertaken by us in the ordinary course of business; (5) whether the transaction was, or is proposed to be, entered into on terms no less favorable to us than terms that could have been reached with an unrelated third party; (6) the purpose and the potential benefits to us of the transaction; (7) the impact of the transaction on a director’s independence (in the event the related party is a director, an immediate family member of a director or an entity in which a director is a partner, shareholder or executive officer); (8) the availability of other sources for comparable products or services; (9) whether it is a single transaction or a series of ongoing, related transactions; (10) whether entering into the transaction would be consistent with our code of ethics and business conduct; and (11) any other information in the context of the transaction that would be material to investors in light of the circumstances of the particular transaction. In addition, our Corporate Governance and Nominating
Committee will review all related party transactions for which Corporate Governance and Nominating Committee approval is required by applicable law or Nasdaq Stock Market rules.
No member of our Corporate Governance and Nominating Committee may participate in the review, approval or ratification of a transaction with respect to which he or she is a related party, except that such member can be counted for purposes of a quorum and shall provide such information with respect to the transaction as may be reasonably requested by other members of the committee.
The policies described above have not yet been adopted, and as a result, the transactions described under “Certain Relationships and Related Party Transactions” were not reviewed under such policies.
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding the beneficial ownership of our Common Stock as of June 30, 2025 by:
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each person known by us to be a beneficial owner of more than 5.0% of our outstanding Common Stock;
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each of our directors;
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each of our named executive officers; and
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all directors and executive officers as a group.
The amounts and percentages of Common Stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares “voting power,” which includes the power to vote or to direct the voting of such security, or “investment power,” which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days after June 30, 2025. Under these rules, more than one person may be deemed a beneficial owner of the same securities and a person may be deemed a beneficial owner of securities as to which he or she has no economic interest. Except as indicated by footnote, the persons named in the table below have sole voting and investment power with respect to all shares of Common Stock shown as beneficially owned by them.
The percentage ownership information under the column titled “Percentage Prior to this Offering” is based on 2,621,390 shares of Common Stock outstanding as of June 30, 2025, which assumes the vesting of 869,313 shares of restricted Common Stock, which will occur automatically immediately upon the completion of this offering. The percentage ownership information under the column titled “Percentage After this Offering” is based on the sale of shares of Common Stock in this offering (assuming an initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus). The percentage ownership information assumes no exercise of the underwriters (i) option to purchase additional shares or (ii) the Underwriter’s Warrant to purchase shares of our Common Stock at an exercise price per share equal to 120% of the initial public offering price per share or $ , based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus. See, Underwriting. The table below does not reflect any shares of common stock that certain individuals may purchase in this offering through the directed share program, as described under the section entitled, “Underwriting — Directed Share Program.” Unless otherwise noted below, the address of the persons listed on the table is c/o Park Dental Partners, Inc., 2200 Country Road C West, Suite 2210, Roseville, MN 55113.
| |
|
|
Number
|
|
|
Total
Held at
Offering(1)
|
|
|
Percentage
Prior to this
Offering
|
|
|
Percentage
After this
Offering
|
|
|
Name of Beneficial Owner
|
|
|
Unrestricted
|
|
|
Restricted(1)
|
|
|
Executive Officers and Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter G. Swenson
|
|
|
|
|
77,688 |
|
|
|
|
|
157,524 |
|
|
|
|
|
117,069 |
|
|
|
|
|
4.47% |
|
|
|
|
|
%
|
|
|
|
Christopher J. Bernander
|
|
|
|
|
— |
|
|
|
|
|
53,833 |
|
|
|
|
|
13,458 |
|
|
|
|
|
* |
|
|
|
|
|
* |
|
|
|
Dr. Todd Gerlach
|
|
|
|
|
45,866 |
|
|
|
|
|
15,289 |
|
|
|
|
|
49,688 |
|
|
|
|
|
1.90% |
|
|
|
|
|
%
|
|
|
|
Dr. Alan Law
|
|
|
|
|
122,294 |
|
|
|
|
|
56,824 |
|
|
|
|
|
136,500 |
|
|
|
|
|
5.21% |
|
|
|
|
|
%
|
|
|
|
Dr. Christopher Steele
|
|
|
|
|
17,250 |
|
|
|
|
|
119,922 |
|
|
|
|
|
47,231 |
|
|
|
|
|
1.80% |
|
|
|
|
|
%
|
|
|
|
Philip I. Smith
|
|
|
|
|
— |
|
|
|
|
|
2,800 |
|
|
|
|
|
700 |
|
|
|
|
|
* |
|
|
|
|
|
* |
|
|
|
Christopher C. Smith
|
|
|
|
|
— |
|
|
|
|
|
2,800 |
|
|
|
|
|
700 |
|
|
|
|
|
* |
|
|
|
|
|
* |
|
|
|
Anna M. Schaefer
|
|
|
|
|
— |
|
|
|
|
|
2,800 |
|
|
|
|
|
700 |
|
|
|
|
|
* |
|
|
|
|
|
* |
|
|
|
All directors and executive officers as a group (8 persons)
|
|
|
|
|
263,098 |
|
|
|
|
|
411,792 |
|
|
|
|
|
366,046 |
|
|
|
|
|
13.96% |
|
|
|
|
|
%
|
|
|
*
Less than 1.0%.
(1)
The restricted stock awards held by our directors and named executive officers vest 25% upon completion of an initial public offering and thereafter at the rate of 6.25% quarterly commencing on the effective date of this offering. The restricted stock awards also are subject to accelerated vesting in connection with a change in control of us in accordance with the terms of the applicable option plan or agreement. The “Total Held at Offering” column reports each person’s unrestricted shares plus 25% of their restricted shares, which vest 25% upon completion of an initial public offering.
DESCRIPTION OF CAPITAL STOCK
General
Upon completion of this offering and the filing of our fourth amended and restated articles of incorporation, our authorized capital stock will consist of: 105,000,000 shares of capital stock, each with a par value of $0.0001, consisting of (a) 100,000,000 shares of Common Stock, and (b) 5,000,000 shares of preferred stock.
Common Stock
The holders of our Common Stock are entitled to one vote per share on all matters to be voted upon by shareholders. Subject to the relative rights, limitations and preferences of the holders of any then outstanding preferred stock, holders of our Common Stock are entitled, among other things, (i) to share ratably in dividends if, when and as declared by our Board of Directors out of funds legally available therefor and (ii) in the event of liquidation, dissolution or winding-up of the company, to share ratably in the distribution of assets legally available therefor, after payment of debts and expenses. Holders of our Common Stock have no preemptive, subscription, redemption or conversion rights. The holders of our Common Stock do not have cumulative voting rights in the election of directors and have no preemptive rights to subscribe for additional shares of our capital stock. The rights, preferences and privileges of holders of our Common Stock are subject to the terms of any series of preferred stock which we may issue in the future. Except as described below under “— Provisions of our Articles of Incorporation and Bylaws and Minnesota Anti-Takeover Law,” a majority vote of common shareholders is generally required to take action under our amended and restated articles of incorporation and amended and restated bylaws. As of June 30, 2025, we had 1,752,077 shares of Common Stock outstanding held of record by 81 shareholders.
We have 3,477,250 restricted shares outstanding at June 30, 2025. These shares automatically vest 25% (or 869,313 shares) immediately upon the completion of this offering and then 6.25% quarterly thereafter. In addition, the Compensation Committee approved a plan to grant 131,368 restricted shares to certain associated dentists at a future date coinciding with the initial public offering. These restricted shares would vest 25% on the first four anniversary dates of the grants.
Preferred Stock
Our Board of Directors has the authority, within the limitations and restrictions stated in our amended and restated articles of incorporation, to authorize the issuance of shares of preferred stock, in one or more classes or series, and to fix the rights, preferences, privileges and restrictions thereof, including dividend rights, conversion or exchange rights, voting rights, terms of redemption, liquidation preferences, preemptive rights and the number of shares constituting any series or the designation of such series. We currently have no shares of preferred stock outstanding. Our Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of Common Stock. The issuance of preferred stock, while providing flexibility in connection with possible future financings and acquisitions and other corporate purposes could, under certain circumstances, have the effect of delaying, deferring or preventing a change in control of our company and might harm the market price of our Common Stock.
Provisions of our Articles of Incorporation and Bylaws and Minnesota Anti-Takeover Law
We are subject to Minnesota Statutes Chapter 302A, the Minnesota Business Corporation Act (the “MBCA”). Some provisions of Minnesota law, our articles of incorporation and our bylaws contain provisions that could make the following transactions more difficult: acquisition of us by means of a tender offer; acquisition of us by means of a proxy contest or otherwise; or removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that shareholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our Common Stock.
Classified Board of Directors/Three Directors Appointed by Affiliated Entity
Our articles of incorporation provides that our Board of Directors be divided into three classes of directors, with the classes to be as nearly equal in number as possible, and with the directors serving three-year terms. As a result, approximately one-third of our Board of Directors is elected each year. The classification of directors has the effect of providing continuity and restricting short-term volatility in the composition of our Board of Directors.
Dentists of our affiliated dental practices meeting certain criteria principally focused on years of practice with the group elect a five (5) person Board of Governors of DDS Advisor LLC, a South Dakota limited liability company. This Board then appoints one director in each class of our Board of Directors, giving DDS Advisor LLC the right to appoint three (3) directors on our Board of Directors. In addition to the staggered board structure, DDS Advisor LLC, a South Dakota limited liability company, has the right to appoint a minimum of three (3) directors (a “DDS Appointee”) and there shall be at all times a DDS Appointee in each of the three classes of directors. In the event that the number of directors constituting the whole Board is increased to more than seven (7) directors, then the number of directors that DDS Advisor is entitled to appoint increases proportionately so that for every two newly-created directorships DDS Advisor is entitled to appoint one of the two newly-created directorships.
Special Shareholder Meeting
Under our bylaws, special meetings of our shareholders may be held at any time and for any purpose and may be called by the chairman of our board, our chief executive officer, majority of the directors, or by one or more shareholders holding at least a majority of the voting power of all shares entitled to vote on the matters to be presented at the meeting.
Advance Notice Procedures
Our bylaws provide that only those matters set forth in the notice of a special shareholders’ meeting may be considered or acted upon at such a special meeting. Our bylaws limit the business that may be conducted at an annual meeting of shareholders to those matters properly brought before the meeting.
Our bylaws also establish an advance notice procedure for shareholders to make nominations of candidates for election as directors, or bring other business before an annual or special meeting of the shareholders. This notice procedure provides that only persons who are nominated by, or at the direction of, our Board of Directors or any duly authorized committee of the Board of Directors, or by a shareholder who is entitled to vote at the meeting and who has given timely written notice to our secretary prior to the meeting at which directors are to be elected, will be eligible for election as directors. The procedure also requires that, in order to raise matters at an annual or special meeting, those matters must be raised before the meeting pursuant to the notice of meeting we deliver or by, or at the direction of, our Board of Directors or any duly authorized committee of the Board of Directors, chairman or by a shareholder who is entitled to vote at the meeting and who has given timely written notice to our secretary of his, her or its intention to raise those matters at the annual or special meeting. If the officer presiding at a meeting determines that a person was not nominated, or other business was not brought before the meeting, in accordance with the notice procedure, that person will not be eligible for election as a director, or that business will not be conducted at the meeting.
Supermajority Provisions
Our articles of incorporation provide that the following decisions shall require the affirmative vote of at least 662∕3% of the issued and outstanding Common Stock, voting together as a single class: (i) an increase in the total number of shares of capital stock with we are authorized to issue; (ii) effecting any reduction by amendment of the Articles of Incorporation, retirement or exchange or otherwise, in the number of outstanding shares of Common Stock in any manner; (iii) a merger or consolidation of us with or into any other company, or permit any other company to merge or consolidate with or into us (except, in the case of a merger solely to change our state of incorporation), (iv) a sale, lease or exchange of all or substantially all of our property and assets, (v) a transfer of assets to another company and in connection therewith the distribution of stock securities of such other company to the holders of our stock; (vi) make any decision to
move the executive offices and/or our headquarters outside of the State of Minnesota; or (vii) voluntarily dissolve or liquidate the Company.
These supermajority provisions may have the effect of deterring hostile takeovers, delaying or preventing changes in control of our management or us, such as a merger, reorganization or tender offer. These supermajority provisions are intended to discourage certain types of transactions that may involve us actually being acquired or our threatened acquisition. These supermajority provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. The supermajority provisions are also intended to discourage certain tactics that may be used in proxy fights. However, such supermajority provisions could have the effect of discouraging others from making tender offers for our shares and, as a consequence, they also may inhibit fluctuations in the market price of our shares that could result from actual or rumored takeover attempts. Such supermajority provisions may also have the effect of preventing changes in management.
Blank Check Preferred Stock
Our articles of incorporation provide for 5,000,000 authorized shares of preferred stock. The existence of authorized but unissued shares of preferred stock may enable our Board of Directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in the due exercise of its fiduciary obligations, our Board of Directors were to determine that a takeover proposal is not in the best interest of us and our shareholders, our Board of Directors could cause shares of preferred stock to be issued without shareholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer or insurgent shareholder or shareholder group. In this regard, our articles of incorporation grants our Board of Directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying, deterring or preventing a change in control of us.
Authorized but Unissued Shares
Our authorized but unissued shares of Common Stock are available for future issuance without shareholder approval. We may use these additional shares for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions, employee benefit plans, and affiliates employee benefit plans. The existence of authorized but unissued shares of Common Stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Provisions of Minnesota Law
We are governed by the provisions of Section 671 (Control Share Act), Section 673 (Business Combination Act) and Section 675 (Takeover Provisions) of the Minnesota Business Corporations Act (MBCA). These provisions may have an effect of delaying, deferring or preventing our unsolicited takeover and deprive our shareholders of an opportunity to sell their shares at a premium over the market price. The following description of certain provisions of the MBCA is only a summary and does not purport to be complete and is qualified in its entirety by reference to the MBCA.
In general, Section 671 of the MBCA provides that shares of an “issuing public corporation,” such as the Company, acquired by an “acquiring person” in a “control share acquisition” that exceed the threshold of voting power of any of the three ranges identified below will not have voting rights, unless the issuing public company’s shareholders vote to accord such shares the voting rights normally associated with such shares. A “control share acquisition” is an acquisition, directly or indirectly, by an “acquiring person” (as defined in the MBCA) of beneficial ownership of shares of an issuing public corporation that, but for Section 671, would, when added to all other shares of the issuing public corporation beneficially owned by the acquiring person, entitle the acquiring person, immediately after the acquisition, to exercise or direct the exercise of a new range of voting power of the issuing public corporation with any of the following three ranges: (i) at least 20 percent but less than 33.33 percent; (ii) at least 33.33 percent but less than or equal to
50 percent; and (iii) over 50 percent. Shares acquired in a control share acquisition in excess of any of the three thresholds will have no voting rights, unless voting rights are accorded such shares by an affirmative vote by the issuing public company’s shareholders. Acquisition of beneficial ownership of shares includes the acquisition of the power to vote or direct the voting of shares, whether that power is shared within a group or is held by one shareholder. Certain acquisitions of voting power are exempt from Section 671, including acquisitions directly from the issuing public company. The issuing public company also has an option to call for redemption all, but not less than all, shares acquired in the control share acquisition that exceed 20% of the outstanding voting power (or such higher threshold of voting power for which shareholder approval has not been obtained) at a price equal to the fair market value of the shares at the time the call is given if (i) the acquiring person fails to deliver the information statement to the issuing public company by the tenth day after the control share acquisition; or (ii) shareholders have voted not to accord voting rights to the shares acquired in the control share acquisition.
In general, Section 673 of the MBCA prohibits a public Minnesota corporation from engaging in a business combination with an interested shareholder for a period of four years after the date of the transaction in which the person became an interested shareholder, unless either the business combination or the acquisition by which such person becomes an interested shareholder is approved in a prescribed manner before the person became an interested shareholder. The term “business combination” includes mergers, asset sales and other transactions resulting in a financial benefit to the interested shareholder. An “interested shareholder” is a person who is the beneficial owner, directly or indirectly, of 10% or more of a corporation’s voting stock, or who is an affiliate or associate of the corporation, and who, at any time within four years before the date in question, was the beneficial owner, directly or indirectly, of 10% or more of the corporation’s outstanding voting stock. Section 673 does not apply if a committee of our Board of Directors consisting of one or more of our disinterested directors (excluding our current and former officers and employees) approves the proposed transaction or the interested shareholder’s acquisition of shares before the share acquisition date or on the share acquisition date but before the interested shareholder becomes an interested shareholder.
If a takeover offer is made for our stock, Section 675 of the MBCA precludes the offeror from acquiring additional shares of stock (including in acquisitions pursuant to mergers, consolidations or statutory share exchanges) within two years following the completion of the takeover offer, unless shareholders selling their shares in the later acquisition are given the opportunity to sell their shares on terms that are substantially the same as those contained in the earlier takeover offer. A “takeover offer” is a tender offer which results in an offeror who owned ten percent or less of a class of our shares acquiring more than ten percent of that class, or which results in the offeror increasing its beneficial ownership of a class of our shares by more than ten percent of the class, if the offeror owned ten percent or more of the class before the takeover offer. Section 675 does not apply if a committee of our Board of Directors approves the proposed acquisition before any shares are acquired pursuant to the earlier tender offer. The committee must consist solely of directors who were directors or nominees for our Board of Directors at the time of the first public announcement of the takeover offer, and who are not our current or former officers and employees, offerors, affiliates or associates of the offeror or nominees for our Board of Directors by the offeror or an affiliate or associate of the offeror.
The overall effect of the foregoing provisions may be to deter a future tender offer. Shareholders might view such an offer to be in their best interest should the offer include a substantial premium over the market price of our Common Stock at that time. In addition, these provisions may have the effect of assisting our management to retain its position and place it in a better position to resist changes that the shareholders may want to make if dissatisfied with the conduct of our business.
Transfer Agent and Registrar
The transfer agent and registrar for our Common Stock will be Equiniti Trust Company, LLC.
Listing
We intend to apply to have our shares of Common Stock quoted on the Nasdaq Stock Market under the symbol “PARK”.
DESCRIPTION OF CERTAIN INDEBTEDNESS
Bank Financing. At December 31, 2023, we had a $23.0 million line of credit. The line bears interest at the one-month Secured Overnight Financing Rate (SOFR) rate plus 1.90% and expired in March 2024. On March 27, 2024, we entered into a new credit agreement which amended the agreement and provided a $13.0 million term loan and a $15.0 million line of credit. The amended agreement also provides a company option to increase the term loan by an additional $10.0 million. The line of credit matures in March 2027 and carries an interest rate equal to the one-month SOFR rate plus 2.00%. The term loan matures in March 2029 and carries an interest rate equal to the one-month SOFR rate plus 2.10%.
The agreement requires, among other things, that we comply with a minimum fixed charge coverage ratio and a total cash flow leverage ratio. In addition, the agreement contains standard negative covenants that, among other things, limit our ability to undertake individual business combinations in excess of specified limits; incur and pay certain indebtedness; create, incur, or assume certain liens and negative pledges; sell, lease, convey, transfer or otherwise dispose of certain assets; liquidate or dissolve any of our subsidiaries; make certain loans and investments; make certain dividends and redemptions; and substantially change the nature of our business.
The loans are secured by all of our business assets. Proceeds from the term loan were used to pay off the line of credit. We were in compliance with all covenants specified in the credit agreement at December 31, 2024 and 2023, including the fixed charge coverage and cash flow leverage rations. We believe, based on our current financial forecasts and trends, that we will remain compliant with all covenants for the foreseeable future.
Our obligations under the credit facilities are secured by a first priority lien on substantially all of our tangible and intangible assets and the tangible and intangible assets of our wholly-owned subsidiaries.
Secured Note Financing. In addition to the aforementioned credit facilities, we have secured notes payable with certain of our current and former shareholders and related parties that total $2.16 million. The principal is due at maturity and interest is due quarterly through October 1, 2037. Interest is equal to the greater of 14% of the principal balance or an amount based on a formula using average dentist compensation or a formula based on total revenue. The effective interest rate for 2024 and 2023 was 28.0% and 28.1%, respectively. The notes are secured by all of our business assets and are subordinated to the bank notes payable and the line of credit. These subordinated notes have significant prepayment restrictions whereby lender approval is required for any prepayment to occur, except for notes representing approximately 25% of the outstanding value may be prepaid by the Company upon the death of the holder.
Deferred Compensation. Our deferred compensation was $69.7 million at June 30, 2025, and $69.1 million on December 31, 2024, and $67.2 million on December 31, 2023 and primarily consists of a professional employee compensation plan and a non-qualified deferred compensation plan.
Professional Employee Compensation Plans — Our affiliated dental practices have Professional Employee Compensation Plans and executed employment agreements with certain professional employees. These agreements provided for the creation of a deferred compensation balance for eligible employees in the event of separation from service.
These agreements were historically based on a formula that incorporates Earnings Before Interest, Taxes, Depreciation, and Amortization and adjusted gross revenues as defined by each of the eligible employee agreements. In 2023, this plan was amended to cap deferred compensation. There are 85 participants in this plan, with an average balance of approximately $0.5 million per participant. The deferred compensation balance is paid over a period of five years from the date of separation. This deferred compensation value is fixed and non-interest bearing. The maximum amount we will be required to pay under the deferred compensation agreements in each year is capped at 2% of the respective Company’s annual adjusted gross revenue, as defined in the agreement.
Nonqualified Deferred Compensation Plans — The DRO and its affiliated dental practices utilize nonqualified deferred compensation plans that provide participants the opportunity to defer compensation on a pretax basis. Benefit payments to participants are available upon termination of employment,
disability, death, unforeseeable emergencies, a change-in-control event, as defined, or qualified planned in-service distributions. The agreement provides eligible participants the option to receive payment in a lump sum distribution or up to five annual installments. Participants are immediately 100% vested in their voluntary deferred compensation contributions. Participants are fully vested in employer credits after five years of service. Participant accounts are credited with deferred compensation contributions and earnings thereon, as defined. At June 30, 2025, December 31, 2024, and 2023, the total deferred compensation liability related to the nonqualified deferred compensation plan was $21.5 million, $20.2 million and $17.5 million, respectively. Deferred compensation expense under the agreement was $1.9 million for the six month period ended June 30, 2025, and 2024, respectively, and $3.3 million, and $4.9 million for the years ended December 31, 2024 and 2023, respectively.
SHARES ELIGIBLE FOR FUTURE SALE
Prior to the offering made by this prospectus, there has been no market for our Common Stock, and we cannot assure you that a liquid trading market for our Common Stock will develop or be sustained after this offering. Future sales of substantial numbers of shares of our Common Stock, including shares issued upon exercise of options or vesting of restricted stock, in the public market after this offering, or the anticipation of those sales, could adversely affect market prices of our Common Stock prevailing from time to time and could impair our ability to raise capital through sales of our equity securities.
Upon completion of this offering, we will have outstanding shares of Common Stock.
All of the shares sold in this offering will be freely tradable without restriction under the Securities Act unless purchased by our “affiliates,” as that term is defined in Rule 144 under the Securities Act. All of the remaining shares of Common Stock to be outstanding after this offering will be deemed “restricted securities,” as that term is defined under Rule 144, and will be subject to the 180-day lock-up period, which may be extended in specified circumstances described below.
Restricted securities may be sold in the public market only if they have been registered or if they qualify for an exemption from registration under Rule 144 or 701 under the Securities Act, which are summarized below. Upon expiration of the lock-up agreements, approximately shares of Common Stock will be available for sale pursuant to Rule 144 and 701 excluding any shares held by affiliates.
Rule 144
In general, under Rule 144 under the Securities Act, a person (or persons whose shares are aggregated) who is not deemed to have been an affiliate of ours at any time during the three months preceding a sale, and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months (including any period of consecutive ownership of preceding non-affiliated holders) would be entitled to sell those shares, subject only to the availability of current public information about us. A non-affiliated person who has beneficially owned restricted securities within the meaning of Rule 144 for at least one year would be entitled to sell those shares without regard to the provisions of Rule 144.
A person (or persons whose shares are aggregated) who is deemed to be an affiliate of ours and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months would be entitled to sell within any three-month period a number of shares that does not exceed the greater of one percent of the then outstanding shares of our Common Stock or the average weekly trading volume of our Common Stock reported on all national securities exchanges during the four calendar weeks preceding such sale. Such sales are also subject to certain manner of sale provisions, notice requirements and the availability of current public information about us.
Rule 701
In general, under Rule 701 of the Securities Act, most of our employees, consultants or advisors who purchased shares from us in connection with a qualified compensatory stock plan or other written agreement are eligible to resell those shares 90 days after the date of this prospectus in reliance on Rule 144, but without compliance with the holding period or certain other restrictions contained in Rule 144.
Lock-Up Agreements
We, our directors and officers and our existing shareholders have agreed with the underwriters that, without the prior written consent of Northland Securities, Inc, we and they will not, subject to certain exceptions, during the period ending 180 days, after the date of this prospectus, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of directly or indirectly, or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
Northland Securities, Inc. does not have any pre-established conditions to waiving the terms of the lock-up agreements. Any determination to release any shares subject to the lock-up agreements would be based on a number of factors at the time of determination, including but not necessarily limited to the market price of the Common Stock, the liquidity of the trading market for the Common Stock, general market conditions, the number of shares proposed to be sold and the timing, purpose and terms of the proposed sale.
The 180-day restricted period described above will be extended if:
•
during the last 17 days of the restricted period, we issue an earnings release or material news or a material event relating to us occurs; or
•
prior to the expiration of the restricted period, we announce that we will release earnings results during the 16-day period beginning on the last day of the applicable restricted period,
in which case, the restrictions described above will, subject to limited exceptions, continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
Equity Plans
Following this offering, we intend to file a registration statement on Form S-8 under the Securities Act to register all of the shares of Common Stock issued or issuable under our Equity Incentive Plans.
MATERIAL U.S. FEDERAL TAX CONSEQUENCES FOR
NON-U.S. HOLDERS OF COMMON STOCK
The following is a general discussion of the material U.S. federal income and estate tax consequences relating to the ownership and disposition of our Common Stock by non-U.S. holders (as defined below) who purchase our Common Stock in this offering and hold such Common Stock as capital assets (generally for investment). This discussion is based on currently existing provisions of the Internal Revenue Code of 1986, as amended, applicable U.S. Treasury regulations promulgated thereunder, judicial decisions, and rulings and pronouncements of the U.S. Internal Revenue Service, or the IRS, all as in effect on the date hereof and all of which are subject to change, possibly with retroactive effect, or subject to different interpretation. This discussion does not address all the tax consequences that may be relevant to specific holders in light of their particular circumstances or to holders subject to special treatment under U.S. federal income or estate tax laws (such as financial institutions, insurance companies, tax-exempt organizations, controlled foreign corporations, passive foreign investment companies, retirement plans, partnerships and their partners, dealers in securities, brokers, U.S. expatriates, or persons who have acquired our Common Stock as part of a straddle, hedge, conversion transaction or other integrated investment). This discussion does not address the state, local or foreign tax or U.S. federal alternative minimum tax consequences relating to the ownership and disposition of our Common Stock. You are urged to consult your own tax advisor regarding the U.S. federal tax consequences of owning and disposing of our Common Stock, as well as the applicability and effect of any state, local or foreign tax laws.
As used in this discussion, the term “non-U.S. holder” refers to a beneficial owner of our Common Stock that for U.S. federal income tax purposes is not:
(i)
an individual who is a citizen or resident of the United States;
(ii)
a corporation (or other entity taxable as a corporation) created or organized in or under the laws of the United States, any state thereof, or the District of Columbia;
(iii)
an estate the income of which is subject to U.S. federal income tax regardless of the source thereof; or
(iv)
a trust (a) with respect to which a court within the United States is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all its substantial decisions, or (b) that has in effect a valid election under applicable Treasury regulations to be treated as a U.S. person.
An individual may be treated as a resident of the United States, among other ways, if present in the United States on at least 31 days in a calendar year and for an aggregate of at least 183 days during the three-year period ending in that calendar year (counting for such purposes all the days present in the current year, one-third of the days present in the immediately preceding year and one-sixth of the days present in the second preceding year).
If a partnership or other entity or arrangement treated as a partnership for U.S. federal income tax purposes holds our Common Stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding our Common Stock, we urge you to consult your own tax advisor.
Dividends
See “Dividend Policy”. Dividends paid by us to a non-U.S. holder, to the extent treated as dividends for U.S. federal income tax purposes, generally will be subject to U.S. federal withholding tax at a 30% rate, unless (i) an applicable income tax treaty reduces or eliminates such tax, and a non-U.S. holder provides us with an IRS Form W-8BEN (or successor form) certifying its entitlement to the benefit of such treaty, or (ii) the dividends are effectively connected with a non-U.S. holder’s conduct of a trade or business in the United States and the non-U.S. holder provides us with an IRS Form W-8ECI (or successor form). In the latter case, a non-U.S. holder generally will be subject to U.S. federal income tax with respect to such dividends in the same manner as a U.S. person, unless otherwise provided in an applicable income tax treaty. Additionally, a non-U.S. holder that is a corporation may be subject to a branch profits tax on its after-tax
effectively connected dividend income at a rate of 30% (or at a reduced rate under an applicable income tax treaty). If a non-U.S. holder is eligible for a reduced rate of U.S. federal withholding tax pursuant to an income tax treaty, such non-U.S. holder may obtain a refund of any excess amount withheld by filing an appropriate claim for refund with the IRS.
Sale, Exchange or Other Disposition
Generally, a non-U.S. holder will not be subject to U.S. federal income tax on gain realized upon the sale, exchange or other disposition of our Common Stock unless (i) such non-U.S. holder is an individual present in the U.S. for 183 days or more in the taxable year of the sale, exchange or other disposition and certain other conditions are met, (ii) the gain is effectively connected with such non-U.S. holder’s conduct of a trade or business in the United States and, where a tax treaty so provides, the gain is attributable to a U.S. permanent establishment of such non-U.S. holder, or (iii) we are or have been a “U.S. real property holding corporation” for U.S. federal income tax purposes at any time during the shorter of the five-year period ending on the date of disposition or the period that the non-U.S. holder held our Common Stock and either (a) our Common Stock has ceased to be traded on an “established securities market” prior to the beginning of the calendar year in which the sale, exchange or other disposition occurs, or (b) the non-U.S. holder owns (actually or constructively) more than five percent of our Common Stock. We believe that we are not a U.S. real property holding corporation, and we do not anticipate becoming a U.S. real property holding corporation.
Federal Estate Tax
Common Stock owned or treated as owned by an individual who is a non-U.S. holder at the time of his or her death generally will be included in the individual’s gross estate for U.S. federal estate tax purposes and may be subject to U.S. federal estate tax unless an applicable estate tax treaty provides otherwise.
Information Reporting and Backup Withholding
Information reporting and backup withholding (at the then applicable rate) may apply to certain payments made to a non-U.S. holder on or with respect to our Common Stock, unless the non-U.S. holder certifies as to its status as a non-U.S. holder under penalties of perjury or otherwise establishes an exemption and certain other conditions are satisfied. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a non-U.S. holder will be allowed as a refund or a credit against such non-U.S. holder’s U.S. federal income tax liability, provided that the required information is timely furnished to the IRS and other applicable requirements are satisfied.
New Legislation Regarding Withholding
Legislation was recently enacted into law that will materially change the requirements for obtaining an exemption from U.S. withholding tax and impose withholding taxes on certain types of payments made to “foreign financial institutions” and certain other non-U.S. entities. In general, and depending on the specific facts and circumstances, the failure to comply with certain certification, information reporting and other specified requirements will result in a 30% withholding tax being imposed on “withholdable payments” to such institutions and entities, including payments of dividends and proceeds from the sale of our Common Stock. Prospective investors should consult their tax advisers regarding this legislation and the potential implications of this legislation on their investment in our Common Stock.
UNDERWRITING
The underwriters named below have agreed to buy, subject to the terms of the underwriting agreement, the number of securities listed opposite its name below. The underwriters are committed to purchase and pay for all of the shares if any are purchased, other than those shares covered by the over-allotment option described below. Northland Securities, Inc. is the representative (the “representative”) of the underwriters for the offering.
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Underwriter
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Number of Shares of
Common Stock
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Northland Securities, Inc.
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Craig-Hallum Capital Group LLC
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Total
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The underwriters have advised us that they propose to offer the shares to the public at a price of $ per share. The underwriters propose to offer the shares to certain dealers at the same price less a concession of not more than $ per share. After the offering, these figures may be changed by the underwriters.
The shares of Common Stock sold in this offering are expected to be ready for delivery against payment in immediately available funds on or about , 2025 subject to customary closing conditions. The underwriters may reject all or part of any order.
We have granted to the underwriters an option to purchase up to additional shares of Common Stock from us at the same price to the public, and with the same underwriting discount, as set forth in the table below. The underwriters may exercise this option any time during the 30-day period after the date of this prospectus, but only to cover over-allotments, if any. To the extent the underwriters exercise the option, the underwriters will become obligated, subject to certain conditions, to purchase the shares for which is exercised the option.
Commissions and Discounts
The table below summarizes the underwriting discounts that we will pay to the underwriters. These amounts are shown assuming both no exercise and full exercise of the over-allotment option. In addition to the underwriting discount, we have agreed to pay up to $400,000 of the fees and expenses of the underwriters, which may include the fees and expenses of counsel to the underwriters.
Except as disclosed in this prospectus, the underwriters have not received and will not receive from us any other item of compensation or expense in connection with this offering considered by FINRA to be underwriting compensation under FINRA Rule 5110. The underwriting discount was determined through an arms’ length negotiation between us and the underwriters.
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Per Share
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Total with No
Over-Allotment
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Total with
Over-Allotment
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Underwriting discount to be paid by us(1)
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$ |
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$ |
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$ |
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(1)
This amount excludes the value of the underwriter’s warrant.
We estimate that the total expenses of this offering, excluding underwriting discounts, will be $ . This includes $400,000 of fees and expenses of the underwriters. These expenses are payable by us.
Underwriter’s Warrants
We have agreed to, upon the closing of this offering, including upon the closing of any offering of shares of Common Stock sold to cover over allotments, issue a warrant to the representative or the representative’s designee(s) to purchase a number of shares of Common Stock equal to 6% of the total number of shares of Common Stock sold in this offering. The underwriter’s warrants will be exercisable at 120% of the initial public offering price to the public and may be exercised on a cashless basis. The
underwriter’s warrants are exercisable at any time and from time to time, in whole or in part, during the five-year period commencing with the effective date of the registration statement related to this offering. The warrants and the shares underlying such warrants have been registered pursuant to this registration statement, so no further registration rights have been provided to the representative.
The underwriter’s warrants and the shares of Common Stock underlying the underwriter’s warrants will be deemed compensation by the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(e)(1) of FINRA. The representative, or permitted assignees under such rule, may not sell, transfer, assign, pledge, or hypothecate the underwriter’s warrants or the securities underlying the underwriter’s warrants, nor will the representative engage in any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the underwriter’s warrants or the underlying shares for a period of 180 days from the effective date of the registration statement. Additionally, the underwriter’s warrants may not be sold transferred, assigned, pledged or hypothecated for a 180-day period following the effective date of the registration statement except to any representative and selected dealer participating in this offering and their bona fide officers or partners. The underwriter’s warrants will provide for adjustment in the number and price of the underwriter’s warrants and the shares of Common Stock underlying such underwriter’s warrants in the event of recapitalization, merger, stock split or other structural transaction, or a future financing undertaken by us.
Right of First Refusal
Until one year from the expiration of the term of our engagement letter with the representative, the representative shall have an irrevocable right of first refusal to act as bookrunner in any public offering by us or our shareholders. If we terminate the engagement of the underwriter for cause, in compliance with FINRA Rule 5110(g)(5)(B), then no such right of first refusal will be granted to the representative.
Indemnification
We also have agreed to indemnify the underwriters against certain liabilities, including civil liabilities under the Securities Act of 1933, as amended, or to contribute to payments that the underwriters may be required to make in respect of those liabilities.
Lock-Up Agreements
We, each of our directors and officers and certain of our shareholders have agreed not to offer, sell, agree to sell, directly or indirectly, or otherwise dispose of any shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock for a period of 180 days after the date of this prospectus. The lock-up agreements that our directors, officers and certain of our shareholders have entered into and our lock-up pursuant to the underwriting agreement provide limited exceptions and their restrictions may be waived at any time by the representative.
Determination of Offering Price
The underwriters have advised us that they propose to offer the shares directly to the public at the estimated initial public offering price range set forth on the cover page of this preliminary prospectus. That price range and the initial public offering price are subject to change as a result of market conditions and other factors. Prior to this offering, no public market exists for our Common Stock. The initial public offering price of the shares was determined by negotiation between us and the underwriter. The principal factors considered in determining the initial public offering price of the shares included:
•
the information in this prospectus and otherwise available to the underwriter, including our financial information;
•
the history and the prospects for the industry in which we compete;
•
the ability and experience of our management;
•
the prospects for our future earnings;
•
the present state of our development and our current financial condition;
•
the general condition of the economy and the securities markets in the United States at the time of this initial public offering;
•
the recent market prices of, and the demand for, publicly-traded securities of generally comparable companies; and
•
other factors as were deemed relevant.
We cannot be sure that the initial public offering price will correspond to the price at which the shares of Common Stock will trade in the public market following this offering or that an active trading market for the shares of Common Stock will develop or continue after this offering.
Price Stabilization, Short Positions and Penalty Bids
To facilitate this offering, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of our Common Stock during and after the offering. Specifically, the underwriters may create a short position in our Common Stock for its own accounts by selling more shares of Common Stock than we have sold to the underwriters. The underwriters may close out any short position by purchasing shares in the open market.
In addition, the underwriters may stabilize or maintain the price of our Common Stock by bidding for or purchasing shares in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to broker-dealers participating in this offering are reclaimed if shares previously distributed in this offering are repurchased, whether in connection with stabilization transactions or otherwise. The effect of these transactions may be to stabilize or maintain the market price of our Common Stock at a level above that which might otherwise prevail in the open market. The imposition of a penalty bid may also affect the price of our Common Stock to the extent that it discourages resales of our Common Stock. The magnitude or effect of any stabilization or other transactions is uncertain. These transactions may be effected on Nasdaq or otherwise and, if commenced, may be discontinued at any time.
In connection with this offering, the underwriter and selling group members may also engage in passive market making transactions in our Common Stock on Nasdaq. Passive market making consists of displaying bids on Nasdaq limited by the prices of independent market makers and effecting purchases limited by those prices in response to order flow. Rule 103 of Regulation M promulgated by the Securities and Exchange Commission limits the amount of net purchases that each passive market maker may make and the displayed size of each bid. Passive market making may stabilize the market price of our Common Stock at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
Neither we nor the underwriters make any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of our Common Stock. In addition, neither we nor the underwriters make any representation that the underwriters will engage in these transactions or that any transaction, if commenced, will not be discontinued without notice.
Electronic Offer, Sale and Distribution of Shares
The underwriters or syndicate members may facilitate the marketing of this offering online directly or through one of their respective affiliates. In those cases, prospective investors may view offering terms and a prospectus online and place orders online or through their financial advisors. Such websites and the information contained on such websites, or connected to such sites, are not incorporated into and are not a part of this prospectus.
Other Relationships
The underwriters and their affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities. The underwriters have in the past, and may in the future, engage in investment banking and other commercial
dealings in the ordinary course of business with us or our affiliates. The underwriters have in the past, and may in the future, receive customary fees and commissions for these transactions.
In the ordinary course of their various business activities, the underwriters and their affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers, and such investment and securities activities may involve securities and/or instruments of the issuer. The underwriters and their affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that it acquires, long and/or short positions in such securities and instruments.
Directed Share Program
At our request, the underwriters have reserved in aggregate up to % of our shares of common stock offered by this prospectus for sale, at the initial public offering price, to certain individuals, including our directors, executive officers, employees, employees of the affiliated practices, and others to the extent permitted under applicable laws and regulations in the United States and in various countries. If purchased by these persons, these shares will be subject to a 180-day lock-up restriction. The number of shares of common stock available for sale to the general public will be reduced to the extent these persons purchase such reserved shares. Any reserved shares that are not purchased by these persons will be offered by the underwriters to the general public on the same basis as the other shares offered by this prospectus.
Listing
We intend to list our shares of Common Stock for trading on The Nasdaq Capital Market under the symbol “PARK” There can be no assurance that we will be successful in listing our Common Stock offered hereby on The Nasdaq Capital Market.
Transfer Agent and Registrar
The transfer agent and registrar for our Common Stock is Equiniti Trust Company LLC.
Selling Restrictions
Canada
The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45 106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31 103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the securities must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of National Instrument 33 105 Underwriting Conflicts (NI 33 105), the underwriters are not required to comply with the disclosure requirements of NI 33 105 regarding underwriter conflicts of interest in connection with this offering.
European Economic Area
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive, each, a Relevant Member State, an offer to the public of any shares of our Common Stock may not be made in that Relevant Member State, except that an offer to the public in that Relevant
Member State of any shares of our Common Stock may be made at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
•
to any legal entity which is a qualified investor as defined in the Prospectus Directive;
•
to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
•
in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of shares of our Common Stock shall result in a requirement for the publication by us or any underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer to the public” in relation to any shares of our Common Stock in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any shares of our Common Stock to be offered so as to enable an investor to decide to purchase any shares of our Common Stock, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.
United Kingdom
The underwriters have represented and agreed that:
•
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000, or FSMA) received by it in connection with the issue or sale of the shares of our Common Stock in circumstances in which Section 21(1) of the FSMA does not apply to us; and
•
it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the shares of our Common Stock in, from or otherwise involving the United Kingdom.
Switzerland
The shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange, or the SIX, or on any other stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland. Neither this document nor any other offering or marketing material relating to the shares or the offering may be publicly distributed or otherwise made publicly available in Switzerland.
Neither this document nor any other offering or marketing material relating to the offering, or the shares have been or will be filed with or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of shares will not be supervised by, the Swiss Financial Market Supervisory Authority FINMA, and the offer of shares has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes, or CISA. Accordingly, no public distribution, offering or advertising, as defined in CISA, its implementing ordinances and notices, and no distribution to any non-qualified investor, as defined in CISA, its implementing ordinances and notices, shall be undertaken in or from Switzerland, and the investor protection afforded to acquirers of interests in collective investment schemes under CISA does not extend to acquirers of shares.
Australia
No placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities and Investments Commission, or the ASIC, in relation to the offering.
This prospectus does not constitute a prospectus, product disclosure statement or other disclosure document under the Corporations Act 2001, or the Corporations Act, and does not purport to include the information required for a prospectus, product disclosure statement or other disclosure document under the Corporations Act.
Any offer in Australia of the shares may only be made to persons, the Exempt Investors, who are “sophisticated investors” (within the meaning of section 708(8) of the Corporations Act), “professional investors” (within the meaning of section 708(11) of the Corporations Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it is lawful to offer the shares without disclosure to investors under Chapter 6D of the Corporations Act.
The shares applied for by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the date of allotment under the offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act would not be required pursuant to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant to a disclosure document which complies with Chapter 6D of the Corporations Act. Any person acquiring shares must observe such Australian on-sale restrictions.
This prospectus contains general information only and does not take account of the investment objectives, financial situation or particular needs of any particular person. It does not contain any securities recommendations or financial product advice. Before making an investment decision, investors need to consider whether the information in this prospectus is appropriate to their needs, objectives and circumstances, and, if necessary, seek expert advice on those matters.
LEGAL MATTERS
Winthrop & Weinstine, P.A., will pass upon the validity of the shares of Common Stock offered hereby. Faegre Drinker Biddle & Reath LLP, will pass upon legal matters relating to this offering for the underwriters.
EXPERTS
The financial statements of Park Dental Partners, Inc. as of December 31, 2024 and 2023, and for each of the two years ended December 31, 2024, included in this prospectus have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report appearing herein. Such financial statements are included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We filed a registration statement on Form S-1 with the Commission with respect to the registration of the Common Stock offered for sale with this prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information about us, the Common Stock we are offering by this prospectus and related matters, you should review the registration statement, including the exhibits filed as a part of the registration statement. Statements contained in this prospectus about the contents of any contract or any other document that is filed as an exhibit to the registration statement are not necessarily complete, and we refer you to the full text of the contract or other document filed as an exhibit to the registration statement. The Securities and Exchange Commission maintains a website that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Securities and Exchange Commission. The address of the site is http://www.sec.gov. You may also request copies of these filings, at no cost, by telephone at (651) 663-0500 or by mail to: Park Dental Partners, Inc., 2200 Country Road C West, Suite 2210, Roseville, Minnesota 55113, Attention: Christopher J. Bernander; http://www.parkdentalpartners.com.
Upon completion of this offering, we will become subject to the information and periodic reporting requirements of the Exchange Act, and, in accordance with such requirements, will file periodic reports, proxy statements and other information with the Securities and Exchange Commission. These periodic reports, proxy statements and other information will be available for inspection and copying at the regional offices, public reference facilities and web site of the Securities and Exchange Commission referred to above. We intend to furnish our shareholders with annual reports containing consolidated financial statements audited by our independent registered accounting firm.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
Index to Consolidated Financial Statements
Unaudited Interim Condensed Consolidated Financial Statements for the Six Month Period ended June 30, 2024
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Page
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F-2
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F-3
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F-4
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F-5
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F-6
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Audited Consolidated Financial Statements for the years ended December 31, 2024 and 2023
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS (unaudited)
(in thousands, except share and per share amounts)
| |
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|
At June 30,
2025
|
|
|
At December 31,
2024
|
|
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ASSETS
|
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CURRENT ASSETS:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
|
|
$ |
2,892 |
|
|
|
|
$ |
2,672 |
|
|
|
Accounts receivable – net of allowance
|
|
|
|
|
7,181 |
|
|
|
|
|
7,401 |
|
|
|
Dental supplies
|
|
|
|
|
969 |
|
|
|
|
|
887 |
|
|
|
Prepaid and other current assets
|
|
|
|
|
2,457 |
|
|
|
|
|
1,619 |
|
|
|
Total current assets
|
|
|
|
|
13,499 |
|
|
|
|
|
12,579 |
|
|
|
OTHER ASSETS:
|
|
|
|
|
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|
|
|
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|
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Property and equipment – net
|
|
|
|
|
30,028 |
|
|
|
|
|
30,063 |
|
|
|
Cash surrender value of life insurance
|
|
|
|
|
17,809 |
|
|
|
|
|
16,046 |
|
|
|
Intangible assets – net
|
|
|
|
|
10,944 |
|
|
|
|
|
11,068 |
|
|
|
Goodwill
|
|
|
|
|
17,071 |
|
|
|
|
|
16,559 |
|
|
|
Deferred income taxes
|
|
|
|
|
18,158 |
|
|
|
|
|
18,158 |
|
|
|
Lease right of use asset
|
|
|
|
|
42,836 |
|
|
|
|
|
44,396 |
|
|
|
Total other assets
|
|
|
|
|
136,846 |
|
|
|
|
|
136,290 |
|
|
|
TOTAL ASSETS
|
|
|
|
$ |
150,345 |
|
|
|
|
$ |
148,869 |
|
|
|
LIABILITIES AND DEFICIT
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|
|
CURRENT LIABILITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and other accrued liabilities
|
|
|
|
$ |
4,167 |
|
|
|
|
$ |
4,663 |
|
|
|
Payroll, benefits and short term deferred compensation
|
|
|
|
|
13,972 |
|
|
|
|
|
13,930 |
|
|
|
Accrued taxes
|
|
|
|
|
2,246 |
|
|
|
|
|
1,981 |
|
|
|
Current debt
|
|
|
|
|
1,915 |
|
|
|
|
|
1,915 |
|
|
|
Current portion of lease liability
|
|
|
|
|
6,341 |
|
|
|
|
|
6,310 |
|
|
|
Deferred Revenue and other current liabilities
|
|
|
|
|
2,393 |
|
|
|
|
|
2,404 |
|
|
|
Total current liabilities
|
|
|
|
|
31,034 |
|
|
|
|
|
31,203 |
|
|
|
LONG TERM LIABILITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease liability
|
|
|
|
|
40,300 |
|
|
|
|
|
41,954 |
|
|
|
Deferred compensation
|
|
|
|
|
67,940 |
|
|
|
|
|
67,554 |
|
|
|
Long term debt
|
|
|
|
|
11,022 |
|
|
|
|
|
11,979 |
|
|
|
Other long-term liabilities
|
|
|
|
|
607 |
|
|
|
|
|
478 |
|
|
|
Total long-term liabilities
|
|
|
|
|
119,869 |
|
|
|
|
|
121,965 |
|
|
|
Total liabilities
|
|
|
|
$ |
150,903 |
|
|
|
|
$ |
153,168 |
|
|
|
Commitments and contingencies (Note 13)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SHAREHOLDERS’ DEFICIT:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock, $0.0001 par value, 100,000,000 shares authorized; 1,752,077
and 1,796,399 shares issued and outstanding at June 30, 2025 and
December 31, 2024, respectively
|
|
|
|
$ |
1 |
|
|
|
|
$ |
1 |
|
|
|
Preferred stock, $0.0001 par value, 5,000,000 shares authorized; no shares issued and outstanding
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Additional paid-in capital
|
|
|
|
|
1,464 |
|
|
|
|
|
1,521 |
|
|
|
Treasury stock
|
|
|
|
|
(429) |
|
|
|
|
|
(91) |
|
|
|
Accumulated shareholders’ deficit
|
|
|
|
|
(1,594) |
|
|
|
|
|
(5,730) |
|
|
|
Total shareholders’ deficit
|
|
|
|
|
(558) |
|
|
|
|
|
(4,299) |
|
|
|
TOTAL LIABILITIES AND SHAREHOLDERS’ DEFICIT
|
|
|
|
$ |
150,345 |
|
|
|
|
$ |
148,869 |
|
|
See accompanying notes to condensed consolidated financial statements.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited)
(in thousands, except share and per share amounts)
| |
|
|
Six Months Ended June,
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
REVENUE
|
|
|
|
$ |
122,035 |
|
|
|
|
$ |
117,541 |
|
|
|
COST OF SERVICES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salaries and benefits
|
|
|
|
|
72,733 |
|
|
|
|
|
70,765 |
|
|
|
Dental supplies and Laboratory fees
|
|
|
|
|
8,576 |
|
|
|
|
|
8,886 |
|
|
|
Office occupancy
|
|
|
|
|
8,090 |
|
|
|
|
|
7,699 |
|
|
|
Other practice expenses
|
|
|
|
|
7,015 |
|
|
|
|
|
6,772 |
|
|
|
Depreciation
|
|
|
|
|
3,859 |
|
|
|
|
|
3,568 |
|
|
|
TOTAL COST OF SERVICES
|
|
|
|
|
100,273 |
|
|
|
|
|
97,689 |
|
|
|
GROSS MARGIN
|
|
|
|
|
21,762 |
|
|
|
|
|
19,851 |
|
|
|
General and administrative expenses
|
|
|
|
|
14,308 |
|
|
|
|
|
12,956 |
|
|
|
Depreciation and amortization
|
|
|
|
|
752 |
|
|
|
|
|
769 |
|
|
|
OPERATING INCOME
|
|
|
|
|
6,702 |
|
|
|
|
|
6,127 |
|
|
|
INTEREST EXPENSE
|
|
|
|
|
(671) |
|
|
|
|
|
(703) |
|
|
|
INCOME BEFORE TAX
|
|
|
|
|
6,031 |
|
|
|
|
|
5,424 |
|
|
|
PROVISION FOR INCOME TAX
|
|
|
|
|
1,894 |
|
|
|
|
|
1,038 |
|
|
|
NET INCOME
|
|
|
|
$ |
4,136 |
|
|
|
|
$ |
4,386 |
|
|
|
Earnings per share attributable to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
$ |
2.33 |
|
|
|
|
$ |
2.42 |
|
|
|
Diluted
|
|
|
|
$ |
2.33 |
|
|
|
|
$ |
2.42 |
|
|
|
Basic weighted-average number of common shares outstanding
|
|
|
|
|
1,777,942 |
|
|
|
|
|
1,813,667 |
|
|
|
Diluted weighted-average number of common shares outstanding
|
|
|
|
|
1,777,942 |
|
|
|
|
|
1,813,667 |
|
|
See accompanying notes to condensed consolidated financial statements.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF SHAREHOLDERS’
DEFICIT FOR THE SIX MONTHS ENDED June 30, 2025 and 2024
(unaudited)
(in thousands)
|
(in thousands)
|
|
|
PDPI
Common
Stock
|
|
|
Treasury
Stock
|
|
|
Accumulated
Shareholders’
(Deficit)
|
|
|
Additional
Paid-in
Capital
|
|
|
Total
Shareholders’
(Deficit)
|
|
|
Balances – December 31, 2024
|
|
|
|
$ |
1 |
|
|
|
|
$ |
(91) |
|
|
|
|
$ |
(5,730) |
|
|
|
|
$ |
1,521 |
|
|
|
|
$ |
(4,299) |
|
|
|
Stock based compensation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share repurchase
|
|
|
|
|
(0) |
|
|
|
|
|
(338) |
|
|
|
|
|
— |
|
|
|
|
|
(57) |
|
|
|
|
|
(395) |
|
|
|
Net Income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
4,136 |
|
|
|
|
|
— |
|
|
|
|
|
4,136 |
|
|
|
Balances – June 30, 2025
|
|
|
|
$ |
1 |
|
|
|
|
$ |
(429) |
|
|
|
|
$ |
(1,594) |
|
|
|
|
$ |
1,464 |
|
|
|
|
$ |
(558) |
|
|
|
(in thousands)
|
|
|
PDPI
Common
Stock
|
|
|
Treasury
Stock
|
|
|
Accumulated
Shareholders’
(Deficit)
|
|
|
Additional
Paid-in
Capital
|
|
|
Total
Shareholders’
(Deficit)
|
|
|
Balances – December 31, 2023
|
|
|
|
$ |
1 |
|
|
|
|
$ |
— |
|
|
|
|
$ |
(3,351) |
|
|
|
|
$ |
1,055 |
|
|
|
|
$ |
(2,295) |
|
|
|
Stock based compensation
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
529 |
|
|
|
|
$ |
529 |
|
|
|
Net Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,386 |
|
|
|
|
|
|
|
|
|
|
|
4,386 |
|
|
|
Balances – June 30, 2024
|
|
|
|
$ |
1 |
|
|
|
|
$ |
— |
|
|
|
|
$ |
1,035 |
|
|
|
|
$ |
1,584 |
|
|
|
|
$ |
2,620 |
|
|
See accompanying notes to condensed consolidated financial statements.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)
(in thousands)
| |
|
|
For the Six Months Ended
June 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
CASH FLOWS FROM OPERATING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
$ |
4,136 |
|
|
|
|
$ |
4,386 |
|
|
|
Adjustments to reconcile net income to net cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
|
4,611 |
|
|
|
|
|
4,337 |
|
|
|
Change in cash surrender value of life insurance
|
|
|
|
|
(786) |
|
|
|
|
|
(956) |
|
|
|
Loss on disposal of property and equipment
|
|
|
|
|
63 |
|
|
|
|
|
7 |
|
|
|
Noncash lease expense
|
|
|
|
|
(62) |
|
|
|
|
|
90 |
|
|
|
Stock based compensation
|
|
|
|
|
— |
|
|
|
|
|
529 |
|
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
|
|
221 |
|
|
|
|
|
(2,890) |
|
|
|
Income tax receivable
|
|
|
|
|
(250) |
|
|
|
|
|
— |
|
|
|
Prepaid expenses and other current assets
|
|
|
|
|
(660) |
|
|
|
|
|
(700) |
|
|
|
Accounts payable and other accrued liabilities
|
|
|
|
|
996 |
|
|
|
|
|
(344) |
|
|
|
Payroll, benefits and deferred compensation
|
|
|
|
|
429 |
|
|
|
|
|
(198) |
|
|
|
Accrued taxes
|
|
|
|
|
265 |
|
|
|
|
|
337 |
|
|
|
Deferred revenue and other liabilities
|
|
|
|
|
270 |
|
|
|
|
|
(75) |
|
|
|
Net cash flows from operating activities
|
|
|
|
|
9,233 |
|
|
|
|
|
4,523 |
|
|
|
NET CASH FLOWS USED IN INVESTING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
|
$ |
(4,020) |
|
|
|
|
$ |
(2,200) |
|
|
|
Life insurance premiums paid
|
|
|
|
|
(978) |
|
|
|
|
|
(113) |
|
|
|
Payments for purchases of dental practices
|
|
|
|
|
(803) |
|
|
|
|
|
(490) |
|
|
|
Net cash flows used in investing activities
|
|
|
|
|
(5,801) |
|
|
|
|
|
(2,803) |
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross borrowings on line of credit
|
|
|
|
$ |
14,903 |
|
|
|
|
$ |
50,774 |
|
|
|
Gross repayments on line of credit
|
|
|
|
|
(14,903) |
|
|
|
|
|
(61,050) |
|
|
|
Dental practice purchase installment payments
|
|
|
|
|
(333) |
|
|
|
|
|
(294) |
|
|
|
Net change in checks issued in excess of cash balances
|
|
|
|
|
(1,504) |
|
|
|
|
|
(254) |
|
|
|
Proceeds from term loan
|
|
|
|
|
— |
|
|
|
|
|
13,000 |
|
|
|
Payments of long-term debt
|
|
|
|
|
(957) |
|
|
|
|
|
(521) |
|
|
|
Payments of capital lease obligation
|
|
|
|
|
(22) |
|
|
|
|
|
(24) |
|
|
|
Cash paid for share repurchase
|
|
|
|
|
(396) |
|
|
|
|
|
— |
|
|
|
Net cash flows (used in) from financing activities
|
|
|
|
|
(3,212) |
|
|
|
|
|
1,631 |
|
|
|
NET CHANGE IN CASH
|
|
|
|
|
220 |
|
|
|
|
|
3,351 |
|
|
|
CASH – Beginning of year
|
|
|
|
|
2,672 |
|
|
|
|
|
558 |
|
|
|
CASH – End of period
|
|
|
|
$ |
2,892 |
|
|
|
|
$ |
3,909 |
|
|
|
SUPPLEMENTAL CASH FLOW INFORMATION – Cash paid during the year for:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
|
|
$ |
658 |
|
|
|
|
$ |
638 |
|
|
|
Income taxes
|
|
|
|
$ |
2,056 |
|
|
|
|
$ |
891 |
|
|
See accompanying notes to condensed consolidated financial statements.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
(Amounts in Thousands)
1.
NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of Business — We are a dental resource organization that provides administrative and other business support services to affiliated general and multi-specialty dental practices. We currently have exclusive long-term agreements with the following affiliated dental practices — PDG, P.A., Dental Specialists of Minnesota, PLLC and Orthodontic Specialists of Minnesota, PLLC, (together “affiliated dental practices”). We currently support over 200 dentists across 85 practice locations. As a result of our exclusive, long-term agreements with our affiliated dental practices, our condensed consolidated financial results include the consolidated results of the affiliated dental practices, in which we do not hold an equity interest. References to “we”, “us”, and “our” refer to Park Dental Partners, Inc. (“PDPI”) and our affiliated general and multi-specialty dental practices PDG, P.A. (“PDG”), Dental Specialists of Minnesota, PLLC (“TDS”), and Orthodontic Specialists of Minnesota, PLLC (“OSM”). PDG, TDS, and OSM provide general and specialty dental care services to patients throughout the Minneapolis/St. Paul metropolitan area; Rochester, Minnesota; Duluth, Minnesota; Sartell, Minnesota; and western Wisconsin.
Basis of presentation — The accompanying condensed consolidated balance sheet as of June 30, 2025, the condensed consolidated statements of operations and the condensed consolidated statements of stockholders’ deficit, for the six months ended June 30, 2025 and 2024, and the condensed consolidated statements of cash flows for the six months ended June 30, 2025 and 2024 are unaudited. The unaudited interim condensed consolidated financial statements have been prepared on the same basis as the audited annual consolidated financial statements and, in the opinion of management, reflect all adjustments, which include normal recurring adjustments, necessary for the fair statement of the Company’s financial position as of June 30, 2025 and the results of its operations and cash flows for the six months ended June 30, 2025 and 2024. The financial data and other information disclosed in these notes related to the six months ended June 30, 2025 and 2024 are also unaudited. The results for the six month periods ended June 30, 2025 are not necessarily indicative of results to be expected for the year ending December 31, 2025, any other interim periods, or any future year or period.
The accompanying condensed consolidated balance sheet as of December 31, 2024 has been derived from the Company’s audited consolidated financial statements for the year ended December 31, 2024. These unaudited interim condensed consolidated financial statements should be read in conjunction with the audited annual consolidated financial statements for the year ended December 31, 2024.
Segment Reporting — We manage our operations on a company-wide basis, rather than at a product or business unit level, thereby making determinations as to the allocation of resources as one operating and reportable segment. Our segment derives revenues by providing general and specialty dental care services to patients. All financial information provided in the consolidated financial statements pertains to this single operating segment. All Company assets are located in the United States.
Our Chief Executive Officer and Chairman is the chief operating decision-maker (“CODM”). The CODM uses financial information at the consolidated level, including net income, gross margin, and Adjusted Earnings Before Interest Tax, Depreciation and Amortization (EBITDA), to assess performance and make key operating decisions, including approving annual operating plans, expanding into new markets, or pursuing business acquisitions. Net income and Adjusted EBITDA are used to monitor budget versus actual results, as well as trends versus historical performance, which are the CODM’s primary considerations to assess performance. There are no segment managers who are held accountable by the CODM, for operating results at levels or components below the consolidated unit level. The measure of segment assets is reported on the balance sheet as total consolidated assets. Our CODM does not review segment assets at a different asset level. Only the CODM has overall responsibility and accountability for the profitability and cash flows of the Company.
Expense Items
Significant segment level expense information provided to the CODM is consistent with our condensed consolidated statements of operations, as supplemented by the specified expense items provided to the CODM and disclosed in the table below:
| |
|
|
For the Six Months
Ended June 30,
|
|
| |
2025
|
|
|
2024
|
|
| |
|
|
(in thousands)
|
|
|
Salaries and Benefits
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Doctor Compensation and Benefits
|
|
|
|
$ |
32,666 |
|
|
|
|
$ |
31,624 |
|
|
|
Clinical Team Member Salaries & Benefits
|
|
|
|
|
40,067 |
|
|
|
|
|
39,141 |
|
|
|
Total Salaries & Benefits
|
|
|
|
$ |
72,733 |
|
|
|
|
$ |
70,765 |
|
|
|
Other Practice Expenses
|
|
|
|
|
MN Care Tax
|
|
|
|
$ |
2,180 |
|
|
|
|
$ |
2,093 |
|
|
|
Other expenses of practices(1)
|
|
|
|
|
4,835 |
|
|
|
|
|
4,679 |
|
|
|
Total – Other Operating expense
|
|
|
|
$ |
7,015 |
|
|
|
|
$ |
6,772 |
|
|
(1)
Other expenses of practices includes software and subscription costs, repairs and maintenance costs, recruiting, travel and entertainment, insurance, and other operating costs.
Other Current Liabilities and Other Long-Term Liabilities — Other current liabilities and other long-term liabilities include insurance and patient refunds, finance lease obligations, deferred rent, and practice acquisition installment notes. Practice acquisition installment notes are generally payable between 12 – 48 months after the date of the acquisition. The total liability of outstanding practice acquisition installment notes as of June 30, 2025 and December 31, 2024, included within the condensed consolidated balance sheet was $1,086 and $1,141, respectively, of which, the current portion was $531 and $668, respectively, and is included within other current liabilities. The following table provides details of the Company’s liability for outstanding practice acquisition installment notes:
| |
|
|
As of
June 30,
2025
|
|
|
As of
December 31,
2024
|
|
| |
|
|
(in thousands)
|
|
|
Practice acquisition installment notes – beginning balance
|
|
|
|
$ |
1,141 |
|
|
|
|
$ |
1,669 |
|
|
|
Additions related to acquisitions
|
|
|
|
|
1,006 |
|
|
|
|
|
390 |
|
|
|
Forfeiture / (Adjustment)
|
|
|
|
|
74 |
|
|
|
|
|
(74) |
|
|
|
Payments advanced to seller
|
|
|
|
|
(1,135) |
|
|
|
|
|
(844) |
|
|
|
Practice acquisition installment notes – ending balance
|
|
|
|
$ |
1,086 |
|
|
|
|
$ |
1,141 |
|
|
Recently Adopted Accounting Pronouncement — The Company has not adopted any new accounting standards in the six month period ended June 30, 2025
Recently Issued Accounting Pronouncements — In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures (“ASU 2023-09”). ASU 2023-09 includes amendments that further enhance income tax disclosures, primarily through standardization and disaggregation of rate reconciliation categories and income taxes paid by jurisdiction. ASU 2023-09 is effective for annual periods beginning after December 15, 2024, on either a prospective or retrospective basis, with early adoption permitted. We are currently evaluating the impact of ASU 2023-09 on our consolidated financial statements and related disclosures. We do not believe the adoption of ASU 2023-09 will have a material impact on the consolidated financial statements and disclosures.
In November 2024, the FASB issued ASU 2024-03, Income Statement-Reporting Comprehensive Income-Expense Disaggregation Disclosures (Subtopic 220-40): Disaggregation of Income Statement Expenses (“ASU
2024-03”), which requires the disaggregation, in the notes to the financial statements, of certain cost and expense captions presented on the face of the Company’s Statement of Operations, to provide enhanced transparency to investors. The update may be applied either prospectively or retrospectively. ASU 2024-03 is effective for fiscal years beginning after December 15, 2026, and interim periods within fiscal years beginning after December 15, 2027. Early adoption is permitted. We are currently evaluating the impact ASU 2024-03 will have on our disclosures.
2.
ACQUISITIONS
During the six months ended June 30, 2025, PDPI and affiliated dental practices acquired one general dental practice. The final purchase consideration for the practices was $1,006, of which $803 was settled in cash and $203 practice acquisition installment notes. In the six months ended June 30, 2024, our affiliated dental practices acquired one general dental practice. The final purchase consideration for the practices was $700, of which $490 was settled in cash and the $210 practice acquisition installment notes. Practice acquisition installment notes are generally payable between 12 and 48 months after the date of acquisition.
The results of operations and financial condition of acquired entities have been included in our condensed consolidated results as of the date of acquisition. For the six months ended June 30, 2024, and 2023, the acquired entities’ impact on revenues and net earnings was not material. Unaudited pro forma revenues and net earnings for the six months ended June 30, 2025, and 2024, as if the business combinations had occurred on the first of the year, were immaterial for the periods.
Goodwill arising from the acquisitions consists largely of the synergies and economies of scale expected from increased revenue and cost reductions. We anticipate that acquired goodwill will be deductible for tax purposes.
Acquisition completed in the six months ended June 30, 2025:
| |
|
|
June 30, 2025
|
|
| |
|
|
(in thousands)
|
|
|
Purchase price allocation
|
|
|
|
|
|
|
|
|
Dental supplies
|
|
|
|
$ |
10 |
|
|
|
Property and equipment
|
|
|
|
|
61 |
|
|
|
Right of use lease asset
|
|
|
|
|
68 |
|
|
|
Patient lists
|
|
|
|
|
434 |
|
|
|
Goodwill
|
|
|
|
|
512 |
|
|
|
Right of use lease liability
|
|
|
|
|
(68) |
|
|
|
Liabilities assumed
|
|
|
|
|
(11) |
|
|
|
Assets acquired and liabilities assumed
|
|
|
|
$ |
1,006 |
|
|
|
Total purchase price
|
|
|
|
$ |
1,006 |
|
|
| |
|
|
June 30, 2025
|
|
| |
|
|
(in thousands)
|
|
|
Consideration
|
|
|
|
|
|
|
|
|
Issuance of amounts due to sellers – acquisitions
|
|
|
|
$ |
203 |
|
|
|
Cash paid in business combinations
|
|
|
|
|
803 |
|
|
| |
|
|
|
$ |
1,006 |
|
|
Acquisition completed in the six months ended June 30, 2024:
| |
|
|
June 30, 2024
|
|
| |
|
|
(in thousands)
|
|
|
Purchase price allocation
|
|
|
|
|
|
|
|
|
Dental supplies
|
|
|
|
$ |
10 |
|
|
|
Property and equipment
|
|
|
|
|
160 |
|
|
|
Right of use lease asset
|
|
|
|
|
19 |
|
|
|
Patient lists
|
|
|
|
|
488 |
|
|
|
Goodwill
|
|
|
|
|
42 |
|
|
|
Right of use lease liability
|
|
|
|
|
(19) |
|
|
|
Assets acquired and liabilities assumed
|
|
|
|
$ |
700 |
|
|
|
Total purchase price
|
|
|
|
$ |
700 |
|
|
| |
|
|
June 30, 2024
|
|
| |
|
|
(in thousands)
|
|
|
Consideration
|
|
|
|
|
|
|
|
|
Issuance of amounts due to sellers – acquisitions
|
|
|
|
$ |
210 |
|
|
|
Cash paid in business combinations
|
|
|
|
|
490 |
|
|
| |
|
|
|
$ |
700 |
|
|
3.
REVENUE
Disaggregated Revenue Information: We view the following disaggregated disclosures as useful to understanding the composition of revenue:
| |
|
|
For the Six Months
Ended June 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
| |
|
|
(in thousands)
|
|
|
General dentistry
|
|
|
|
$ |
89,887 |
|
|
|
|
$ |
87,922 |
|
|
|
Multi-Specialty dentistry
|
|
|
|
|
32,148 |
|
|
|
|
|
29,619 |
|
|
|
Revenue
|
|
|
|
$ |
122,035 |
|
|
|
|
$ |
117,541 |
|
|
4.
CONCENTRATION OF CREDIT RISK
Financial instruments that potentially subject us to possible credit risk consist principally of accounts receivable and cash deposits in excess of insured limits.
Accounts receivable consist of amounts due from patients, their insurers, or governmental agencies for health care provided to the patients. The majority of patients are from Minneapolis/St. Paul, Rochester, Sartell, and Duluth, Minnesota, and western Wisconsin, and the surrounding areas.
The mix of receivables from patients and third-party payors are as follows:
| |
|
|
As of
June 30, 2025
|
|
|
As of
December 31, 2024
|
|
| |
|
|
(in thousands)
|
|
|
Patients
|
|
|
|
|
29% |
|
|
|
|
|
31% |
|
|
|
Third-party payors
|
|
|
|
|
71% |
|
|
|
|
|
69% |
|
|
|
Totals
|
|
|
|
|
100% |
|
|
|
|
|
100% |
|
|
One third-party payor and their affiliated entities accounted for 28% and 29% of our condensed consolidated net revenue for the six months ended June 30, 2025, and 2024.
Accounts receivable from one third-party payor and their affiliated entities accounted for 28% and 29% of total accounts receivable at June 30, 2025, and December 31, 2024, respectively.
We maintain a depository relationship with one primary financial institution. Operating cash requirements frequently require that amounts on deposit exceed Federal Deposit Insurance Corporation limits. We believe this financial institution has a strong credit rating and that credit risk related to these deposits is minimal. As of June 30, 2025, and December 31, 2024, cash deposits in excess of the federally insured amounts were $2,354 and $2,356, respectively.
5.
PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
| |
|
|
As of
June 30,
2025
|
|
|
As of
December 31,
2024
|
|
| |
|
|
(in thousands)
|
|
|
Land
|
|
|
|
$ |
46 |
|
|
|
|
$ |
46 |
|
|
|
Buildings
|
|
|
|
|
140 |
|
|
|
|
|
140 |
|
|
|
Computer equipment
|
|
|
|
|
17,255 |
|
|
|
|
|
16,877 |
|
|
|
Furniture and fixtures, and signage
|
|
|
|
|
7,482 |
|
|
|
|
|
7,379 |
|
|
|
Dental equipment
|
|
|
|
|
47,835 |
|
|
|
|
|
46,053 |
|
|
|
Leasehold improvements
|
|
|
|
|
43,996 |
|
|
|
|
|
42,263 |
|
|
|
Total property and equipment
|
|
|
|
|
116,753 |
|
|
|
|
|
112,758 |
|
|
|
Less accumulated depreciation
|
|
|
|
|
86,725 |
|
|
|
|
|
82,695 |
|
|
|
Property and equipment – net
|
|
|
|
$ |
30,028 |
|
|
|
|
$ |
30,063 |
|
|
Depreciation expense in the condensed consolidated statement of operations was $4,053 and $3,795 for the six months ended June 30, 2025, and 2024. All assets of the Company are located in the United States of America.
6.
GOODWILL AND INTANGIBLE ASSETS
Changes in the carrying value of Goodwill consisted of the following:
|
(in thousands)
|
|
|
Balance – beginning
December 31, 2024
|
|
|
Goodwill
acquired
|
|
|
Balance – ending
June 30, 2025
|
|
|
Goodwill
|
|
|
|
$ |
16,559 |
|
|
|
|
|
512 |
|
|
|
|
$ |
17,071 |
|
|
Changes in carrying value of Intangible assets consist of the following:
| |
|
|
June 30, 2025
|
|
|
December 31, 2024
|
|
| |
|
|
Gross
Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Net
|
|
|
Gross
Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Net
|
|
|
Amortizable intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trademarks
|
|
|
|
$ |
1,950 |
|
|
|
|
$ |
1,950 |
|
|
|
|
$ |
— |
|
|
|
|
$ |
1,950 |
|
|
|
|
$ |
1,950 |
|
|
|
|
$ |
— |
|
|
|
Patient lists
|
|
|
|
|
17,091 |
|
|
|
|
|
6,147 |
|
|
|
|
|
10,944 |
|
|
|
|
|
16,658 |
|
|
|
|
|
5,590 |
|
|
|
|
|
11,068 |
|
|
|
Total intangible assets
|
|
|
|
$ |
19,041 |
|
|
|
|
$ |
8,097 |
|
|
|
|
$ |
10,944 |
|
|
|
|
$ |
18,608 |
|
|
|
|
$ |
7,540 |
|
|
|
|
$ |
11,068 |
|
|
Trademark and patient list amortization expense were $557 and $542 for the six months ended June 30, 2025 and 2024, respectively.
Amortization expense on amortizable intangible assets for each of the next five years and thereafter is as follows (in thousands):
| |
Remaining 2025
|
|
|
|
$ |
958 |
|
|
| |
2026
|
|
|
|
|
1,895 |
|
|
| |
2027
|
|
|
|
|
1,884 |
|
|
| |
2028
|
|
|
|
|
1,857 |
|
|
| |
2029
|
|
|
|
|
4,178 |
|
|
| |
Thereafter
|
|
|
|
|
2,165 |
|
|
| |
Total
|
|
|
|
$ |
12,937 |
|
|
7.
INCOME TAXES
Our interim tax provision is determined using an estimate of the annual effective tax rate, adjusted for discrete items, if any, which are taken into account in the relevant period. Each quarter, we update an estimate of the annual effective tax rate, and if the estimated tax rate changes, we make a cumulative adjustment.
The Income tax expense was $1.9 million and $1.0 million in the six month period ended June 30, 2025 and 2024, respectively. Our year-to-date effective tax was 31.4% for the six month period ended June 30, 2025, compared to 19.1% for six months ended June 30, 2024. The change in the effective tax rate was primarily driven by higher discrete non deductible expenses in the six month period ended June 30, 2025 which were associated with our preparations for an initial public offering.
8.
LINE OF CREDIT
At June 30, 2025, we had a $15,000 available line of credit with a bank bearing interest at the one-month SOFR plus 2.00%. Our credit agreement with the bank provides for a $13,000 term loan and $15,000 line of credit with the right to request an additional $10,000. The line of credit matures in March 2027.
Activity on the line of credit for the first six months of 2025 included advances and repayments of $14,903. Activity on the line of credit for fiscal 2024 included advances of $63,239 and repayments of $73,515. No amounts were outstanding on the line of credit at June 30, 2025 and December 31, 2024.
The term loan matures in March 2029 and carries an interest rate equal to the one-month SOFR plus 2.10%. The agreement requires, among other things, that we comply with a minimum fixed charge coverage ratio, a total cash flow leverage ratio, and restriction on individual business combinations in excess of specified limits, as defined in the agreement. The loans are secured by all business assets of the Company and the affiliated dental practices. We were in compliance with all debt covenants as of June 30, 2025 and December 31, 2024.
9.
LONG-TERM DEBT
Long-term debt consisted of the following:
| |
|
|
As of June 30,
2025
|
|
|
As of December 31,
2024
|
|
| |
|
|
(in thousands)
|
|
|
Bank note payable, principal due in monthly installments of $155. The term loan matures in March 2029 and carries an interest rate equal to the one-month SOFR plus 2.10%
|
|
|
|
$ |
10,678 |
|
|
|
|
$ |
11,607 |
|
|
|
Subordinated notes payable, principal due at maturity and interest due
quarterly through October 1, 2037. The effective interest rate was 25.7%
for the first six months of 2025 and 28% for 2024
|
|
|
|
|
2,165 |
|
|
|
|
|
2,165 |
|
|
|
Notes payable to former dentist shareholders for the redemption of shares
|
|
|
|
|
94 |
|
|
|
|
|
122 |
|
|
|
Totals
|
|
|
|
|
12,937 |
|
|
|
|
|
13,894 |
|
|
|
Less – current maturities
|
|
|
|
|
1,915 |
|
|
|
|
|
1,915 |
|
|
|
Long-term portion
|
|
|
|
$ |
11,022 |
|
|
|
|
$ |
11,979 |
|
|
Scheduled principal payments on long-term debt at June 30, 2025, are summarized as follows (in thousands):
| |
|
|
As of
June 30, 2025
|
|
| |
|
|
(in thousands)
|
|
|
Remaining 2025
|
|
|
|
$ |
958 |
|
|
|
2026
|
|
|
|
|
1,895 |
|
|
|
2027
|
|
|
|
|
1,884 |
|
|
|
2028
|
|
|
|
|
1,857 |
|
|
|
2029
|
|
|
|
|
4,178 |
|
|
|
Thereafter
|
|
|
|
|
2,165 |
|
|
|
Total
|
|
|
|
$ |
12,937 |
|
|
10.
DEFERRED COMPENSATION
Park Dental Partners, Inc. and its affiliated dental practices have four deferred compensation plans. Only the Nonqualified Deferred Compensation Plan is still active, while balances in all other plans have been closed to new participation.
•
Active Deferred Compensation Plans:
Nonqualified Deferred Compensation Plan — We have adopted a nonqualified deferred compensation plan that provides for participant to defer compensation on a pretax basis. In addition, we may make discretionary credits to the compensation account of an active participant at any time. Participants are immediately 100% vested in their voluntary contributions, and are fully vested in employer credits after two years of service.
Benefit payments to participants are available upon termination of employment, disability, death, unforeseeable emergencies, a change-in-control event, or through a qualified in-service distribution, and have the option to receive payment in a lump sum distribution or up to five annual installments.
At June 30, 2025, the total deferred compensation liability related to the non-qualified plan was $21,523, of which $21,135 was presented as Deferred compensation and $263 as Payroll, benefits and short term deferred compensation. At December 31, 2024, the total deferred compensation liability related to the non-qualified plan was $20,177, of which $19,788 was presented as Deferred compensation and $388 as Payroll, benefits and short term deferred compensation.
•
Deferred Compensation Plans — Other:
We have several deferred compensation plans which have been closed to new participants and service crediting which are described collectively as Deferred Compensation Plans — Other.
Professional Employee Compensation Plan (the ‘PEC Plan’) — The PEC Plan provided for a deferred compensation benefit to certain employees of affiliated dental practices in the event of separation from service. The PEC Plan was closed to new participants on September 30, 2023. The PEC Plan was frozen as of December 31, 2022, and no expense was recognized for this plan since that date. The deferred compensation balance is paid over a period of five years from the date of separation. The maximum amount we will be required to pay under the PEC Plan in each year is capped at 2% of our annual adjusted gross revenue, as defined in the agreement.
Equity Accumulation Plan (the ‘Accumulation Plan’) — The Accumulation Plan provided for benefit payments to participants after termination of employment because of death, permanent disability or attainment of age 65. Alternatively, the value of the participant’s vested account is paid following termination of employment at or after age 55 with 20 years of service. The Accumulation Plan was closed to new participants and service crediting or earnings on March 1, 2008. We do not anticipate any future compensation expense under the Accumulation plan.
Phantom Equity Plan (‘Phantom Plan’) — The Phantom Plan provided certain clinical and nonclinical leaders with phantom equity awards. The plan provides for participants to receive benefits upon termination of employment, disability, death, a change-in-control event, as defined, or via a qualified in-service distribution election. The plan provides for annual installment payments over five years after separation of service, or upon in-service distribution election. The Phantom Plan was closed to new participants and service crediting or earnings in 2022. The sole remaining participant is fully vested. There was no deferred compensation expense under the Phantom Plan since closing to service credits were frozen.
Obligations to former employees of affiliated dental groups were $3,600 at June 30, 2025, and $3,399 at December 31, 2024. The short-term portion has been included in Payroll, benefits and short term deferred compensation on the condensed consolidated balance sheet.
The balance of Deferred compensation includes the professional employee compensation plan, equity accumulation plan, phantom equity plan, and amounts due to former shareholders of $46,680 at June 30, 2025, and $47,766 at December 31, 2024. Payments made under the deferred compensation plan were $682 and $742, for the six months ended June 30, 2025, and 2024.
The following table summarizes the composition of our Deferred Compensation Plans — Other:
| |
|
|
Deferred Compensation – Other
As of June 30, 2025
|
|
|
Deferred Compensation – Other
As of December 31, 2024
|
|
|
(in thousands)
|
|
|
Professional
Employee
Compensation
Plans
|
|
|
Equity
Accumulation
Plan
|
|
|
Phantom
Equity
|
|
|
Total
Deferred
Compensation –
Other Plans
|
|
|
Professional
Employee
Compensation
Plans
|
|
|
Equity
Accumulation
Plan
|
|
|
Phantom
Equity
|
|
|
Total Deferred
Compensation –
Other Plans
|
|
|
Deferred compensation
|
|
|
|
$ |
44,059 |
|
|
|
|
$ |
1,218 |
|
|
|
|
$ |
1,403 |
|
|
|
|
$ |
46,680 |
|
|
|
|
$ |
44,760 |
|
|
|
|
$ |
1,351 |
|
|
|
|
$ |
1,655 |
|
|
|
|
$ |
47,766 |
|
|
|
Payroll, benefits and short
term deferred compensation
|
|
|
|
|
1,139 |
|
|
|
|
|
89 |
|
|
|
|
|
254 |
|
|
|
|
|
1,482 |
|
|
|
|
|
857 |
|
|
|
|
|
52 |
|
|
|
|
|
207 |
|
|
|
|
|
1,116 |
|
|
|
Total Liability
|
|
|
|
$ |
45,198 |
|
|
|
|
$ |
1,307 |
|
|
|
|
$ |
1,657 |
|
|
|
|
$ |
48,162 |
|
|
|
|
$ |
45,617 |
|
|
|
|
$ |
1,403 |
|
|
|
|
$ |
1,862 |
|
|
|
|
$ |
48,882 |
|
|
11.
SHAREHOLDERS’ DEFICIT
Park Dental Partners, Inc. shares are comprised of 100 million Common shares, and 5 million preferred shares. All stock has a par value of $0.0001 per share. As of June 30, 2025 only Common shares are outstanding. Each holder of common stock is entitled to one vote for each share of Common stock held. See Note 16 — Subsequent Events.
The following table summarizes Common shares outstanding:
| |
|
|
Outstanding Shares
|
|
| |
|
|
As of
June 30,
2025
|
|
|
As of
December 31,
2024
|
|
|
Total Common unrestricted shares
|
|
|
|
|
1,752,077 |
|
|
|
|
|
1,796,400 |
|
|
Restricted Stock (“RSs”) — Restricted Park Dental Partners, Inc. shares vest 25% upon the closing of an initial public offering of our common stock and continue to vest at the rate of 6.25% on each subsequent calendar quarter for the following 12 quarters. In the event of a change in control, the restricted shares shall be vested immediately upon the date of the change in control. An initial public offering was not deemed probable in the six month period ended June 30, 2025 and 2024, and accordingly, no compensation cost was recognized.
The following table summarizes RS activity:
| |
|
|
Restricted Stock
|
|
| |
|
|
Number of
RSs
|
|
|
Weighted Average
Grant Date
Fair Value
Per Share
|
|
| |
|
|
(in thousands)
|
|
|
|
Unvested RSs at December 31, 2024
|
|
|
|
|
3,554 |
|
|
|
|
$ |
6.81 |
|
|
|
RSs granted
|
|
|
|
|
15 |
|
|
|
|
$ |
10.46 |
|
|
|
RSs vested
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
RSs canceled
|
|
|
|
|
(92) |
|
|
|
|
$ |
6.81 |
|
|
|
Unvested RSs at June 30, 2025
|
|
|
|
|
3,477 |
|
|
|
|
$ |
6.83 |
|
|
Unrecognized compensation expense related to outstanding RSs at June 30, 2025 was approximately $23,734 and was approximately $24,203 at December 31, 2024.
Unrestricted Stock Grant — During the six month period ended June 30, 2024 we issued 77,688 fully vested unrestricted common stock shares, and recognized $528 stock based compensation expense. No further unrestricted stock grants have been made through June 30, 2025.
12.
EARNINGS PER COMMON SHARE
Basic earnings per common share (“EPS”) is calculated based on the weighted average number of shares of common stock outstanding during the applicable period. Diluted EPS is calculated based on the weighted average number of shares of common stock outstanding plus potentially dilutive shares of common stock outstanding during the applicable period. The following table presents a reconciliation of the share amounts used in the computation of basic and diluted EPS:
| |
|
|
For the Six Months Ended June 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
| |
|
|
(in thousands except shares and
per share amounts)
|
|
|
Net income attributable to PARK common shareholders’
|
|
|
|
$ |
4,136 |
|
|
|
|
$ |
4,386 |
|
|
|
Earnings per share attributable to PARK common shareholders’
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
$ |
2.33 |
|
|
|
|
$ |
2.42 |
|
|
|
Diluted
|
|
|
|
$ |
2.33 |
|
|
|
|
$ |
2.42 |
|
|
|
Weighted-average number of common shares outstanding
|
|
|
|
|
1,777,942 |
|
|
|
|
|
1,813,667 |
|
|
|
Dilutive impact of share based awards
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Weighted-average number of common shares outstanding – diluted
|
|
|
|
|
1,777,942 |
|
|
|
|
|
1,813,667 |
|
|
|
Anti-dilutive restricted stock excluded from diluted earnings per share computation
|
|
|
|
|
3,538,618 |
|
|
|
|
|
3,681,710 |
|
|
13.
COMMITMENT AND CONTINGENCIES
Operating Leases
The Company leases all but one of its locations. Excluding renewal options that are not reasonably certain to be exercised, our leases have remaining contractual terms that primarily range from 2 to 14 years. Most of the leases contain renewal options and escalation clauses. Our property leases require payment of real estate taxes, insurance, and common area maintenance, in addition to rent. Our lease agreements do not contain any material residual value guarantees or material restrictive covenants.
Lease Cost — Lease cost included in our condensed consolidated statement of operations consisted of the following:
| |
|
|
For the Six Months Ended
June 30,
|
|
|
(in thousands)
|
|
|
2025
|
|
|
2024
|
|
|
Lease Costs
|
|
|
|
$ |
3,861 |
|
|
|
|
$ |
3,678 |
|
|
|
Lease Costs Included in:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Office occupancy
|
|
|
|
$ |
3,788 |
|
|
|
|
$ |
3,622 |
|
|
|
General and administrative expenses
|
|
|
|
|
73 |
|
|
|
|
|
56 |
|
|
| |
|
|
|
$ |
3,861 |
|
|
|
|
$ |
3,678 |
|
|
Lease cost associated with operating leases and short-term leases (i.e., leases with an initial term of 12 months or less) is recognized on a straight-line basis from the date we take possession of the property through the end of the lease term. Variable lease payments not recognized in the measurement of operating lease liabilities and are expensed as incurred.
Operating Right-of-Use Assets and Lease Liabilities — Operating right-of-use assets and lease liabilities included on our condensed consolidated balance sheet were as follows:
| |
|
|
June 30,
2025
|
|
|
December 31,
2024
|
|
| |
|
|
(in thousands)
|
|
|
Lease right-of-use assets – operating leases
|
|
|
|
$ |
42,836 |
|
|
|
|
$ |
44,396 |
|
|
|
Lease liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current operating leases
|
|
|
|
$ |
6,341 |
|
|
|
|
$ |
6,310 |
|
|
|
Non-current operating leases
|
|
|
|
|
40,300 |
|
|
|
|
|
41,954 |
|
|
|
Total lease liabilities
|
|
|
|
$ |
46,641 |
|
|
|
|
$ |
48,264 |
|
|
Remaining Lease Terms and Discount Rates — ASC 842 requires we recognize right of use assets and lease liabilities for its operating leases. A key component of this is to determine the incremental borrowing rate, which is used to discount future lease payments. The incremental borrowing rate is defined as the rate of interest that a lessee would have to pay to borrow over a similar term, with similar security, the funds necessary to purchase the underlying asset in a similar economic environment. Since the interest rate implicit in our lease contracts is typically not readily determinable, we reviewed existing debt financing arrangements and the types of leases as well as the lease term and type of collateral to calculate the incremental borrowing rate.
The weighted-average remaining lease terms and discount rates associated with our operating lease liabilities were as follows:
| |
|
|
June 30, 2025
|
|
|
December 31, 2024
|
|
|
Weight-average discount rate-operating leases
|
|
|
3.51%
|
|
|
3.36%
|
|
|
Weight-average remaining lease term-operating leases
|
|
|
9.81 years
|
|
|
10.08 years
|
|
Supplemental Cash Flow Information — Supplemental cash flow information associated with our operating leases is as follows:
| |
|
|
For the Six Months
Ended June 30, 2025
|
|
|
For the Year Ended
December 31, 2024
|
|
| |
|
|
(in thousands)
|
|
|
Non-cash information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Right-of-use assets obtained in exchange for lease liabilities – operating leases
|
|
|
|
$ |
4,110 |
|
|
|
|
$ |
5,552 |
|
|
|
Right-of-use asset impairment
|
|
|
|
$ |
(47) |
|
|
|
|
$ |
— |
|
|
Maturities of Operating Lease Liabilities — The following table summarizes our minimum lease payments under noncancelable operating leases with initial or remaining lease terms in excess of one year:
| |
|
|
As of June 30, 2025
|
|
| |
|
|
(in thousands)
|
|
|
Remaining 2025
|
|
|
|
$ |
3,969 |
|
|
|
Fiscal 2026
|
|
|
|
|
7,761 |
|
|
|
Fiscal 2027
|
|
|
|
|
7,075 |
|
|
|
Fiscal 2028
|
|
|
|
|
6,058 |
|
|
|
Fiscal 2029
|
|
|
|
|
4,817 |
|
|
|
Thereafter
|
|
|
|
|
25,867 |
|
|
|
Total lease payments
|
|
|
|
|
55,547 |
|
|
|
Less liability accretion
|
|
|
|
|
(8,906) |
|
|
|
Present value of lease liabilities
|
|
|
|
$ |
46,641 |
|
|
Legal Contingencies — In the normal course of business, we may be involved in various legal proceedings such as, but not limited to, the following: lawsuits alleging negligence in care or general liability, violation of regulatory bodies’ rules and regulations, or violation of federal and/or state laws.
We and our affiliated dental practices have been named as a defendant in various lawsuits in the normal course of business, primarily for employment liability, malpractice claims and contractual business disputes. At the present time, we do not believe any pending lawsuits will have a material adverse effect on our operating results, cash flows, liquidity or financial position.
On or about August 9, 2024, we advised certain patients that certain information of our affiliated dental practices was the subject of a data breach. As a result of the incident, multiple claims were filed against us in state and federal courts in Minnesota. The claims were dismissed without prejudice and were subsequently refiled as a single, putative class action suit in Minnesota District Court entitled, In re Park Dental Data Breach Litigation, Case No. 27-CV-24-12335, Fourth Judicial District, County of Hennepin, State of Minnesota. We recently filed a motion to dismiss this matter. A loss contingency related to this incident is reasonably possible but given the litigation is in the very early stages, we cannot reasonably estimate a range of possible loss. We will continue to evaluate information as it becomes known, and it is possible that future results of operations or cash flows for any particular interim or annual period could be materially affected by unfavorable resolutions of this matter.
14.
VARIABLE INTEREST ENTITIES
Our affiliated dental practices employ dentists, contract with payors and deliver dental services to patients throughout the Minneapolis/St. Paul Metropolitan area; Rochester, Minnesota; Duluth, Minnesota; Sartell, Minnesota; and western Wisconsin. Park Dental Partners, Inc. provides a wide range of support services to the affiliated dental practices. Activities include but are not limited to operational support of clinical facilities, marketing, information technology infrastructure, and the sourcing and managing of dental plan contracts.
We evaluated whether we have a variable interest in our affiliated dental practices, whether practices are VIEs, and whether we have a controlling financial interest in them. We concluded that there are variable interests in the affiliated dental practices on the basis of the Administrative Resources Agreements between Park Dental Partners, Inc. and the affiliated dental practice which provides for reimbursement of costs and management fee payable to us in exchange for providing management and administrative services related to the growth of the patient population, development of all necessary policies and operating procedures, including development and implementation of clinical practice guidelines, and quality assurance and utilization management programs. We have concluded that the success or failure of the dental resource organization (DRO) in conducting these support activities will most significantly impact the economic performance of our affiliated dental practices. In addition, our variable interests in these practices provide us with the right to receive benefits that could potentially be significant. We also note there are no assets of the
affiliated dental practices that can not be used to settle obligations of the Company, and there are no liabilities of the affiliated dental practices for which creditors do not have recourse to the general credit of Park Dental Partners, Inc. as the primary beneficiary. The single member of each of the respective affiliated dental practices is a shareholder of the Park Dental Partners, Inc. As a result of this analysis, Park Dental Partners, Inc. concluded that it is the primary beneficiary of the affiliated dental practices and therefore consolidates their balance sheets, results of operations and cash flows. We perform a qualitative assessment of VIEs on an ongoing basis to determine if we continue to be the primary beneficiary. The combined assets and liabilities of the affiliated dental practices of PDG, TDS and OSM which are included within the condensed consolidated financial statements of Park Dental Partners, Inc. are as follows:
| |
|
|
At June 30,
2025
|
|
|
At December 31,
2024
|
|
| |
|
|
(in thousands)
|
|
|
TOTAL ASSETS
|
|
|
|
$ |
42,131 |
|
|
|
|
$ |
37,581 |
|
|
|
TOTAL LIABILITIES
|
|
|
|
$ |
34,658 |
|
|
|
|
$ |
29,601 |
|
|
Due to the nature of the minority ownership in the affiliated dental practices, whereby a single designated doctor holds one share of the affiliate entity, but has no right to receive any economic benefit, or interest in the profits generated by the affiliated dental practices, we have not assigned any value to the non-controlling interests in the condensed consolidated operations.
15.
RELATED-PARTY TRANSACTIONS
We have lease agreements with entities that are minority owned by certain shareholders, members, and officers of the Company. Total lease liabilities for these properties were $22,378 at June 30, 2025, and $22,799 at December 31, 2024. As described in Note 9 — Long-term debt, we have outstanding subordinated Notes Payable. A portion of these subordinated Notes are due to certain related parties, the principal balance of which is $2,012, due at maturity and interest due quarterly through October 1, 2037.
16.
SUBSEQUENT EVENTS
We have evaluated events occurring subsequent to the date of the condensed consolidated financial statements through September 3, 2025, which is the date the condensed consolidated financial statements were issued.
During August 2025, the shareholders of Park Dental Partners, Inc. approved:
•
The conversion of all outstanding shares of our Class A-1, Class A-2 and Class A-3 to new Common Stock on a 1:1 basis. The conversion had no impact on the number of outstanding shares or number of weighted average basic or diluted outstanding shares.
•
The adoption of the PDPI Employee Stock Purchase Plan, which will include both a qualified and non-qualified component, and will allow for not more than 250,000 shares of Common Stock to be issued under the terms of the plan.
In August 2025, the Compensation Committee approved a plan to grant 131,368 restricted shares to certain associate dentists at a future date coinciding with an initial public offering. The approval to grant these restricted shares was made for retention purposes. As the grant has not yet occurred no grant date fair value has been established.
******
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and the Board of Directors of Park Dental Partners, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Park Dental Partners, Inc. and subsidiaries (the “Company”) as of December 31, 2024 and 2023, the related consolidated statements of operations, shareholders’ deficit, and cash flows, for the years then ended, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2024 and 2023, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Deloitte & Touche LLP
Minneapolis, Minnesota
May 21, 2025 (July 28, 2025 as to the effects of the revision discussed in Note 1, and September 3, 2025 as to the effects of the stock conversion described in Note 1)
We have served as the Company’s auditor since 2022.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share amounts)
| |
|
|
At December 31,
2024
|
|
|
At December 31,
2023
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CURRENT ASSETS:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
|
|
$ |
2,672 |
|
|
|
|
$ |
558 |
|
|
|
Accounts receivable – net of allowance
|
|
|
|
|
7,401 |
|
|
|
|
|
8,931 |
|
|
|
Dental supplies
|
|
|
|
|
887 |
|
|
|
|
|
1,062 |
|
|
|
Income taxes receivable
|
|
|
|
|
228 |
|
|
|
|
|
258 |
|
|
|
Prepaid rent
|
|
|
|
|
— |
|
|
|
|
|
637 |
|
|
|
Prepaid expenses and other current assets
|
|
|
|
|
1,391 |
|
|
|
|
|
1,263 |
|
|
|
Total current assets
|
|
|
|
|
12,579 |
|
|
|
|
|
12,709 |
|
|
|
OTHER ASSETS:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment – net
|
|
|
|
|
30,063 |
|
|
|
|
|
31,515 |
|
|
|
Cash surrender value of life insurance
|
|
|
|
|
16,045 |
|
|
|
|
|
14,123 |
|
|
|
Intangible assets – net
|
|
|
|
|
11,068 |
|
|
|
|
|
11,607 |
|
|
|
Goodwill
|
|
|
|
|
16,559 |
|
|
|
|
|
16,057 |
|
|
|
Deferred income taxes
|
|
|
|
|
18,158 |
|
|
|
|
|
18,937 |
|
|
|
Lease right of use asset
|
|
|
|
|
44,396 |
|
|
|
|
|
44,277 |
|
|
|
Other assets
|
|
|
|
|
1 |
|
|
|
|
|
1 |
|
|
|
Total other assets
|
|
|
|
|
136,290 |
|
|
|
|
|
136,517 |
|
|
|
TOTAL ASSETS
|
|
|
|
$ |
148,869 |
|
|
|
|
$ |
149,226 |
|
|
|
LIABILITIES AND DEFICIT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and other accrued liabilities
|
|
|
|
$ |
4,663 |
|
|
|
|
$ |
6,229 |
|
|
|
Accrued payroll and benefits
|
|
|
|
|
12,425 |
|
|
|
|
|
11,843 |
|
|
|
Deferred compensation – short term
|
|
|
|
|
1,505 |
|
|
|
|
|
438 |
|
|
|
Accrued taxes
|
|
|
|
|
1,981 |
|
|
|
|
|
1,604 |
|
|
|
Deferred Revenue
|
|
|
|
|
1,432 |
|
|
|
|
|
1,487 |
|
|
|
Current debt
|
|
|
|
|
1,915 |
|
|
|
|
|
10,376 |
|
|
|
Current portion of lease liability
|
|
|
|
|
6,310 |
|
|
|
|
|
6,287 |
|
|
|
Other current liabilities
|
|
|
|
|
972 |
|
|
|
|
|
1,455 |
|
|
|
Total current liabilities
|
|
|
|
|
31,203 |
|
|
|
|
|
39,719 |
|
|
|
LONG-TERM LIABILITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lease liability
|
|
|
|
|
41,954 |
|
|
|
|
|
42,104 |
|
|
|
Non Qualified Deferred Compensation Plan
|
|
|
|
|
19,788 |
|
|
|
|
|
17,471 |
|
|
|
Deferred compensation – Other Plans
|
|
|
|
|
47,766 |
|
|
|
|
|
49,271 |
|
|
|
Long-term debt
|
|
|
|
|
11,979 |
|
|
|
|
|
2,287 |
|
|
|
Other long-term liabilities
|
|
|
|
|
478 |
|
|
|
|
|
669 |
|
|
|
Total long-term liabilities
|
|
|
|
|
121,965 |
|
|
|
|
|
111,802 |
|
|
|
Total liabilities
|
|
|
|
$ |
153,168 |
|
|
|
|
$ |
151,521 |
|
|
|
Commitments and contingencies (Note 12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SHAREHOLDERS’ DEFICIT:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock, $0.0001 par value, 100,000,000 shares authorized; 1,796,399 and 1,735,979
shares issued and outstanding at December 31, 2024 and 2023, respectively
|
|
|
|
|
1 |
|
|
|
|
|
1 |
|
|
|
Class B Common stock, $0.0001 par value, 1,000,000 shares authorized; no shares issued and outstanding
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Preferred stock, $0.0001 par value, 5,000,000 shares authorized; no shares issued and outstanding
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Additional paid-in capital
|
|
|
|
|
1,521 |
|
|
|
|
|
1,055 |
|
|
|
Treasury stock
|
|
|
|
|
(91) |
|
|
|
|
|
— |
|
|
|
Accumulated shareholders’ deficit
|
|
|
|
|
(5,730) |
|
|
|
|
|
(3,351) |
|
|
|
Total shareholders’ deficit
|
|
|
|
|
(4,299) |
|
|
|
|
|
(2,295) |
|
|
|
TOTAL LIABILITIES AND SHAREHOLDERS’ DEFICIT
|
|
|
|
$ |
148,869 |
|
|
|
|
$ |
149,226 |
|
|
See accompanying notes to consolidated financial statements.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except share and per share amounts)
| |
|
|
Years Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
REVENUE
|
|
|
|
$ |
229,794 |
|
|
|
|
$ |
223,509 |
|
|
|
COST OF SERVICES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salaries and benefits
|
|
|
|
|
140,741 |
|
|
|
|
|
142,273 |
|
|
|
Dental supplies and Laboratory fees
|
|
|
|
|
17,093 |
|
|
|
|
|
17,121 |
|
|
|
Office occupancy
|
|
|
|
|
15,519 |
|
|
|
|
|
15,197 |
|
|
|
Other practice expenses
|
|
|
|
|
13,471 |
|
|
|
|
|
13,285 |
|
|
|
Depreciation
|
|
|
|
|
7,291 |
|
|
|
|
|
6,787 |
|
|
|
TOTAL COST OF SERVICES
|
|
|
|
|
194,115 |
|
|
|
|
|
194,663 |
|
|
|
GROSS MARGIN
|
|
|
|
|
35,679 |
|
|
|
|
|
28,846 |
|
|
|
General and administrative expenses
|
|
|
|
|
25,470 |
|
|
|
|
|
25,061 |
|
|
|
Depreciation and amortization
|
|
|
|
|
1,544 |
|
|
|
|
|
1,508 |
|
|
|
OPERATING INCOME
|
|
|
|
|
8,665 |
|
|
|
|
|
2,277 |
|
|
|
INTEREST EXPENSE
|
|
|
|
|
(1,449) |
|
|
|
|
|
(1,208) |
|
|
|
INCOME BEFORE TAX
|
|
|
|
|
7,216 |
|
|
|
|
|
1,069 |
|
|
|
PROVISION/(BENEFIT) FOR INCOME TAX
|
|
|
|
|
2,853 |
|
|
|
|
|
(3,820) |
|
|
|
NET INCOME
|
|
|
|
$ |
4,363 |
|
|
|
|
$ |
4,889 |
|
|
|
Earnings per share attributable to common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
$ |
2.42 |
|
|
|
|
$ |
2.82 |
|
|
|
Diluted
|
|
|
|
$ |
2.42 |
|
|
|
|
$ |
2.82 |
|
|
|
Basic weighted-average number of common shares outstanding
|
|
|
|
|
1,806,449 |
|
|
|
|
|
1,735,979 |
|
|
|
Diluted weighted-average number of common shares outstanding
|
|
|
|
|
1,806,449 |
|
|
|
|
|
1,735,979 |
|
|
See accompany notes to consolidated financial statements.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ DEFICIT
FOR THE YEARS ENDED DECEMBER 31, 2024 and 2023
(in thousands)
| |
|
|
PDPI
Common
Stock
|
|
|
PDG
Common Stock
|
|
|
NMN Stock
|
|
|
Member Units
|
|
|
Treasury
Stock
|
|
|
Accumulated
Shareholders’
(Deficit)
|
|
|
Additional
Paid-
in Capital
|
|
|
Total
Shareholders’
(Deficit)
|
|
| |
|
|
Class A
|
|
|
Class B
|
|
|
Preferred
|
|
|
Common
|
|
|
DSM
|
|
|
OSM
|
|
|
BALANCES – January 1, 2023
|
|
|
|
$ |
— |
|
|
|
|
$ |
621 |
|
|
|
|
$ |
8 |
|
|
|
|
$ |
38 |
|
|
|
|
$ |
22 |
|
|
|
|
$ |
283 |
|
|
|
|
$ |
41 |
|
|
|
|
$ |
(326) |
|
|
|
|
$ |
(7,863) |
|
|
|
|
$ |
— |
|
|
|
|
|
(7,176) |
|
|
|
Issuance
|
|
|
|
|
— |
|
|
|
|
|
155 |
|
|
|
|
|
3 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
96 |
|
|
|
|
|
114 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
368 |
|
|
|
Exchange
|
|
|
|
|
1 |
|
|
|
|
|
(776) |
|
|
|
|
|
(11) |
|
|
|
|
|
(38) |
|
|
|
|
|
(22) |
|
|
|
|
|
(379) |
|
|
|
|
|
(155) |
|
|
|
|
|
326 |
|
|
|
|
|
(1) |
|
|
|
|
|
1,055 |
|
|
|
|
|
— |
|
|
|
Dividends
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(376) |
|
|
|
|
|
— |
|
|
|
|
|
(376) |
|
|
|
Net income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
4,889 |
|
|
|
|
|
— |
|
|
|
|
|
4,889 |
|
|
|
BALANCES – January 1, 2024
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(3,351) |
|
|
|
|
|
1,055 |
|
|
|
|
|
(2,295) |
|
|
|
Stock based compensation
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
529 |
|
|
|
|
|
529 |
|
|
|
Share Repurchase
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(91) |
|
|
|
|
|
— |
|
|
|
|
|
(63) |
|
|
|
|
|
(154) |
|
|
|
Dividends
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(6,742) |
|
|
|
|
|
— |
|
|
|
|
|
(6,742) |
|
|
|
Net income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
4,363 |
|
|
|
|
|
— |
|
|
|
|
|
4,363 |
|
|
|
BALANCES – December 31, 2024
|
|
|
|
$ |
1 |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
(91) |
|
|
|
|
$ |
(5,730) |
|
|
|
|
$ |
1,521 |
|
|
|
|
$ |
(4,299) |
|
|
See accompanying notes to consolidated financial statements.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
| |
|
|
For the Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
CASH FLOWS FROM OPERATING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
$ |
4,363 |
|
|
|
|
$ |
4,889 |
|
|
|
Adjustments to reconcile net income to net cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
|
8,835 |
|
|
|
|
|
8,295 |
|
|
|
Deferred income taxes
|
|
|
|
|
779 |
|
|
|
|
|
(4,844) |
|
|
|
Change in cash surrender value of life insurance
|
|
|
|
|
(1,315) |
|
|
|
|
|
(153) |
|
|
|
Loss on disposal of property and equipment
|
|
|
|
|
89 |
|
|
|
|
|
9 |
|
|
|
Noncash lease expense
|
|
|
|
|
(246) |
|
|
|
|
|
720 |
|
|
|
Stock based compensation
|
|
|
|
|
529 |
|
|
|
|
|
— |
|
|
|
Changes in operating assets and liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
|
|
1,530 |
|
|
|
|
|
(1,442) |
|
|
|
Income tax receivable
|
|
|
|
|
30 |
|
|
|
|
|
225 |
|
|
|
Prepaid rent
|
|
|
|
|
637 |
|
|
|
|
|
(93) |
|
|
|
Prepaid expenses and other current assets
|
|
|
|
|
66 |
|
|
|
|
|
(360) |
|
|
|
Other assets
|
|
|
|
|
— |
|
|
|
|
|
1,111 |
|
|
|
Accounts payable and other accrued liabilities
|
|
|
|
|
(1,422) |
|
|
|
|
|
(370) |
|
|
|
Accrued payroll and benefits
|
|
|
|
|
582 |
|
|
|
|
|
1,410 |
|
|
|
Deferred compensation
|
|
|
|
|
1,878 |
|
|
|
|
|
2,739 |
|
|
|
Accrued taxes
|
|
|
|
|
377 |
|
|
|
|
|
745 |
|
|
|
Deferred revenue
|
|
|
|
|
(54) |
|
|
|
|
|
(7) |
|
|
|
Other long-term liabilities
|
|
|
|
|
(189) |
|
|
|
|
|
181 |
|
|
|
Net cash flows from operating activities
|
|
|
|
|
16,469 |
|
|
|
|
|
13,055 |
|
|
|
NET CASH FLOWS USED IN INVESTING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
|
$ |
(6,156) |
|
|
|
|
$ |
(9,228) |
|
|
|
Proceeds from sale of property and equipment
|
|
|
|
|
1 |
|
|
|
|
|
14 |
|
|
|
Life insurance premiums paid
|
|
|
|
|
(606) |
|
|
|
|
|
(3,383) |
|
|
|
Payments for purchases of dental practices
|
|
|
|
|
(910) |
|
|
|
|
|
(1,455) |
|
|
|
Net cash flows used in investing activities
|
|
|
|
|
(7,671) |
|
|
|
|
|
(14,052) |
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross borrowings on line of credit
|
|
|
|
$ |
63,239 |
|
|
|
|
$ |
148,607 |
|
|
|
Gross repayments on line of credit
|
|
|
|
|
(73,515) |
|
|
|
|
|
(147,384) |
|
|
|
Dental practice purchase installment payments
|
|
|
|
|
(844) |
|
|
|
|
|
(1,321) |
|
|
|
Net change in checks issued in excess of cash balances
|
|
|
|
|
(143) |
|
|
|
|
|
775 |
|
|
|
Proceeds from term loan
|
|
|
|
|
13,000 |
|
|
|
|
|
— |
|
|
|
Payments of long-term debt
|
|
|
|
|
(1,493) |
|
|
|
|
|
(157) |
|
|
|
Payments of capital lease obligation
|
|
|
|
|
(32) |
|
|
|
|
|
(47) |
|
|
|
Issuance of ownership Interest
|
|
|
|
|
— |
|
|
|
|
|
368 |
|
|
|
Cash paid for Share Repurchase
|
|
|
|
|
(154) |
|
|
|
|
|
— |
|
|
|
Dividends paid
|
|
|
|
|
(6,742) |
|
|
|
|
|
(376) |
|
|
|
Net cash flows from financing activities
|
|
|
|
|
(6,684) |
|
|
|
|
|
465 |
|
|
|
NET CHANGE IN CASH
|
|
|
|
|
2,114 |
|
|
|
|
|
(532) |
|
|
|
CASH – Beginning of year
|
|
|
|
|
558 |
|
|
|
|
|
1,090 |
|
|
|
CASH – End of year
|
|
|
|
$ |
2,672 |
|
|
|
|
$ |
558 |
|
|
|
SUPPLEMENTAL CASH FLOW INFORMATION – Cash paid during the year for:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
|
|
$ |
1,143 |
|
|
|
|
$ |
1,245 |
|
|
|
Income taxes
|
|
|
|
$ |
1,806 |
|
|
|
|
|
— |
|
|
See accompanying notes to consolidated financial statements.
PARK DENTAL PARTNERS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED DECEMBER 31, 2024 AND 2023
(Amounts in Thousands)
1. NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of Business — We are a dental resource organization that provides administrative and other business support services to affiliated general and multi-specialty dental practices. We currently have exclusive long-term agreements with the following affiliated dental practices — PDG, P.A., Dental Specialists of Minnesota, PLLC and Orthodontic Specialists of Minnesota, PLLC, (together “affiliated dental practices”). We currently support over 200 dentists across 85 practice locations. As a result of our exclusive, long-term agreements with our affiliated dental practices, our consolidated financial results include the consolidated results of the affiliated dental practices, in which we do not hold an equity interest. References to “we”, “us”, and “our” refer to Park Dental Partners, Inc. and our affiliated general and multi-specialty dental practices PDG, P.A. (“PDG”), Dental Specialists of Minnesota, PLLC (“TDS”), and Orthodontic Specialists of Minnesota, PLLC (“OSM”). PDG, TDS, and OSM provide general and specialty dental care services to patients throughout the Minneapolis/St. Paul metropolitan area; Rochester, Minnesota; Duluth, Minnesota; Sartell, Minnesota; and western Wisconsin. PDG Northern Minnesota, PLLC (“NMN”), was a provider of general dental care services in the Duluth, Minnesota area, and was merged into PDG effective September 29, 2023.
In May 2023, shareholders of our affiliated dental practices established a dental resource organization 100% owned by dentists and management, through the creation of Park Dental Partners, Inc. and transitioned to our current operating structure.
Park Dental Partners, Inc. was formed on June 20, 2023. It issued stock: Class A-1, Class A-2, Class A-3 (collectively ‘Class A’) and Class B. Class A common represented 49% of the voting power, and Class B common represented 51% of the voting power. On November 25, 2024, Park Dental Partners, Inc. shareholders voted to eliminate the Class B shares. In August 2025, the shareholders of Park Dental Partners, Inc. approved the conversion of all previously outstanding Class A-1, Class A-2 and Class A-3 shares to new Common Stock on a 1:1 basis. The conversion had no impact on the number of outstanding shares or number of weighted average basic or diluted outstanding shares.
Prior to October 1, 2023, PDG, TDS, and OSM prepared combined financial statements as they were entities under common control by virtue of their common ownership pursuant to the Financial Accounting Standards Board (“FASB”) Accounting Standard Codification (“ASC”) 805-50, Business Combinations — Related Issues. The historical results and financial position of PDG, TDS, and OSM have been presented on a combined basis, after the elimination of all intercompany accounts and transactions.
On October 1, 2023, PDG contributed certain assets and liabilities to Park Dental Partners, Inc. followed by a distribution of Park Dental Partners, Inc. stock to PDG’s shareholders in a transaction structured under IRC Section 355 and 368 (a)(1)(D). TDS and OSM also contributed certain assets and liabilities to Park Dental Partners, Inc. followed by a liquidating distribution to the unit holders in exchange for shares in Park Dental Partners, Inc.
Also on October 1, 2023, we executed 30-year agreements (“Administrative Resource Agreements”) that appoints us as the sole and exclusive provider of administrative and other business services for PDG, TDS, and OSM (the “Restructuring”). These agreements establish a controlling financial interest in PDG, TDS, and OSM and are the basis of the financial statement consolidation. Through this Restructuring, each holder of previously outstanding PDG, TDS, and OSM common stock or ownership units exchanged their ownership interests in the individual entity for an equivalent interest in Park Dental Partners, Inc. common stock.
The Restructuring was accounted for pursuant to ASC 805-50. The Company evaluated the guidance in ASC 805-50 with respect to the transaction between entities under common control and concluded that since all shareholders of PDG, TDS, and OSM have nearly identical ownership percentages and interests before and after the transaction, the Restructuring lacks economic substance and represents a transaction
between entities with common ownership and should be accounted for in a manner consistent with common control transaction and did not result in a change in control at the ultimate parent or the controlling shareholder level.
Common control transactions are not accounted for at fair value. Rather, common control transactions are generally accounted for at the carrying amount of the net assets or equity interests transferred.
Principles of Consolidation — We evaluate ownership, contractual and other interests in entities to determine if it has any variable interest in variable interest entities (“VIEs”). These evaluations are complex, involve judgment, and the use of estimates and assumptions based on available historical information, among other factors. We assess control through means other than voting rights, i.e., a variable interest, and determines which business entity is the primary beneficiary of the VIE. The Company consolidates VIEs when it is determined that the Company is the primary beneficiary of the VIE. We perform ongoing reassessments of whether changes in the facts and circumstances regarding our involvement with a VIE will cause the consolidation conclusion to change.
Use of Estimates in Preparation of Consolidated Financial Statements — The preparation of the accompanying consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that directly affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. Critical estimates include the determination of contractual allowances as included in the recognition of accounts receivable and revenue, goodwill impairment and stock-based compensation. These estimates, assumptions and judgments are evaluated on an ongoing basis and based on historical experience, current conditions, and various other assumptions, and form the basis for estimating the carrying values of assets and liabilities. Actual results may differ from these estimates.
Segment Reporting — We manage our operations on a company-wide basis, rather than at a product or business unit level, thereby making determinations as to the allocation of resources as one operating and reportable segment. Our segment derives revenues by providing general and specialty dental care services to patients. All financial information provided in the consolidated financial statements pertains to this single operating segment. All Company assets are located in the United States.
Our Chief Executive Officer and Chairman is the chief operating decision-maker (“CODM”). The CODM uses financial information at the consolidated level, including net income, gross margin, and Adjusted Earnings Before Interest Tax, Depreciation and Amortization (EBITDA), to assess performance and make key operating decisions, including approving annual operating plans, expanding into new markets, or pursuing business acquisitions. Net income and Adjusted EBITDA are used to monitor budget versus actual results, as well as trends versus historical performance, which are the CODM’s primary considerations to assess performance. There are no segment managers who are held accountable by the CODM, for operating results at levels or components below the consolidated unit level. The measure of segment assets is reported on the balance sheet as total consolidated assets. Our CODM does not review segment assets at a different asset level. Only the CODM has overall responsibility and accountability for the profitability and cash flows of the Company.
Disaggregation of Revenue
The majority of our services are affiliated dental practice services which share similar patients and delivery of services. All revenue is generated in the United States. The principal components that comprise the Company’s service revenues are as follows:
•
General Dentistry Services, including dentist and hygiene revenues
•
Specialty Dentistry Services, including oral surgery, periodontics, pediatric dentistry, prosthodontics, endodontics, and orthodontics.
Revenue disaggregated by service category is as follows:
|
($ 000’s)
|
|
|
2024
|
|
|
2023
|
|
|
General Dentistry Revenue
|
|
|
|
$ |
170,809 |
|
|
|
|
$ |
168,192 |
|
|
|
Multi-Specialty Revenue
|
|
|
|
|
58,985 |
|
|
|
|
|
55,316 |
|
|
|
Revenue
|
|
|
|
$ |
229,794 |
|
|
|
|
$ |
223,509 |
|
|
Specified Expense Items
Significant segment level expense information provided to the CODM is consistent with our consolidated statements of operations, as supplemented by the specified expense items provided to the CODM and disclosed in the table below:
|
($ 000’s)
|
|
|
2024
|
|
|
2023
|
|
|
|
|
Salaries and Benefits
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Doctor Compensation and Benefits
|
|
|
|
$ |
61,785 |
|
|
|
|
$ |
65,974 |
|
|
|
|
|
Clinical Team Member Salaries & Benefits
|
|
|
|
|
78,956 |
|
|
|
|
|
76,299 |
|
|
|
|
|
Total Salaries & Benefits
|
|
|
|
$ |
140,741 |
|
|
|
|
$ |
142,273 |
|
|
|
|
|
Other Practice Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MN Care Tax
|
|
|
|
$ |
4,092 |
|
|
|
|
$ |
3,535 |
|
|
|
|
|
Other expenses of practices(1)
|
|
|
|
|
9,379 |
|
|
|
|
|
9,750 |
|
|
|
|
|
Total – Other Operating expense
|
|
|
|
$ |
13,471 |
|
|
|
|
$ |
13,281 |
|
|
|
|
(1)
Other expenses of practices includes software and subscription costs, repairs and maintenance costs, recruiting, travel and entertainment, insurance, and other operating costs.
Cash — Cash includes cash on hand.
Dental Supplies — Dental supplies are valued at cost, using the first-in, first-out method.
Property and Equipment — Property and equipment purchases are recorded at cost. Depreciation is provided over the estimated useful life of each class of depreciable asset and is computed using the straight-line method. Estimated useful lives range from 3 to 7 years for computers, vehicles, equipment, and furniture, 15 years for signage, and 20 years for buildings. Amortization of leasehold improvements is computed using the straight-line method over the shorter of the remaining lease term or the estimated useful lives of the improvements.
Cash Surrender Value of Life Insurance — In connection with our non-qualified deferred compensation plan, we are the beneficiary of corporate owned life insurance policies on several affiliated dentists and leadership. The face value of the policies is $43,500 at December 31, 2024, and December 31, 2023.
Trademarks and Patient Lists — Our definite-lived intangible assets, which include trademarks and patient lists (see Note 2), are capitalized and amortized over 15 years on a straight-line basis.
Goodwill — Goodwill is recognized for the excess of the purchase price over the fair value of tangible and identifiable intangible net assets of businesses acquired. Goodwill is assessed for impairment annually at the reporting unit level, which has been determined to be the consolidated entity level. When testing goodwill for impairment, we first assess qualitative factors to determine if it is more likely than not the carrying value of a reporting unit exceeds its estimated fair value. During a qualitative analysis, we considers the impact of changes, if any, to the following factors: macroeconomic, industry and market factors; cost factors; changes in overall financial performance; and any other relevant events and uncertainties impacting a reporting unit. If the qualitative assessment indicates goodwill impairment is more likely than not, additional quantitative analysis is performed. We may also elect to bypass the qualitative testing and proceed directly to the quantitative testing. The annual impairment test for goodwill was completed as of October 1, 2024 and
2023, and it was determined the reporting unit has fair value substantially in excess of the carrying value, thus no impairment adjustment was deemed necessary.
Other Current Liabilities and Other Long-Term Liabilities — Other current liabilities and other long-term liabilities include insurance and patient refunds, finance lease obligations, deferred rent, and practice acquisition installment notes. Practice acquisition installment notes are generally payable between 12 – 48 months after the date of the acquisition. The total liability of outstanding practice acquisition installment notes as of December 31, 2024, and December 31, 2023, included within the consolidated balance sheet was $1,141 and $1,669, respectively, of which, the current portion was $668 and $1,005, respectively, and is included within other current liabilities. The following table provides details of the Company’s liability for outstanding practice acquisition installment notes:
| |
|
|
For the Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Practice acquisition installment notes – beginning balance
|
|
|
|
$ |
1,669 |
|
|
|
|
$ |
2,378 |
|
|
|
Additions related to acquisitions
|
|
|
|
|
390 |
|
|
|
|
|
612 |
|
|
|
Forfeiture
|
|
|
|
|
(74) |
|
|
|
|
|
— |
|
|
|
Payments advanced to seller
|
|
|
|
|
(844) |
|
|
|
|
|
(1,321) |
|
|
|
Practice acquisition installment notes – ending balance
|
|
|
|
$ |
1,141 |
|
|
|
|
$ |
1,669 |
|
|
Deferred Compensation — We’ve entered into certain deferred compensation arrangements whereby portions of compensation, primarily to our affiliated dentists, are deferred and paid in later periods. The deferred compensation amounts are charged to expense over the required service period. Refer to Note 9 — Deferred Compensation for further information.
Revenue Recognition — Our affiliated dental practices generate their revenue from services provided to patients. Generally, dental practices bill the patients and third-party payors after the services are performed. Revenue is recognized as performance obligations are satisfied. Patient care service revenue is reported at the amount that reflects the consideration to which the affiliated dental practices expect to be entitled in exchange for providing patient care. These amounts are due from patients and third-party payors (including dental insurers and government sponsored programs), and others and includes variable consideration. Our affiliated dental groups determine the transaction price, which involves significant estimates and judgment, based on standard charges for goods and services provided, reduced by contractual allowance provided to third-party payors, discounts provided to uninsured patients in accordance with our policy and implicit price concessions based on its historical collection experience for each patient portfolio based on payor classes and service types. We regularly review data about these major payor sources of revenue in evaluating the sufficiency of the contractual allowance and implicit price concessions. Performance obligations are determined based on the nature of the services provided. For general dental care services, the performance obligations are satisfied as the patient simultaneously receives and consumes the benefits provided as the services are performed. Revenue from performance obligations satisfied over time is recognized based on total expected or actual services allocated to each performance obligation. Generally, performance obligations satisfied over time relate to patients receiving orthodontic services. For these services we measure the performance obligation from initial execution of the contract to the point when there are no further services required for the patient. Typically, revenue is recognized within 12-months of the commencement of services. In addition, our affiliated dental practices offer a direct-to-consumer dental care subscription for patients without dental insurance, which provides reduced costs for patient care over a 12-month period. Materially all deferred revenue at the end of a fiscal year are recognized within the subsequent 12-month period. The subscription revenue is deferred and recognized over the period of care. We believe that these methods provide an accurate depiction of the transfer of services over the term of the performance obligation based on the inputs needed to satisfy the obligations.
Per the administrative resource agreements, Park Dental Partners, Inc. bills the affiliated dental practices for business and administrative services. However, this revenue and related expenses are eliminated in the financial statement consolidation process.
Our affiliated dental practices have agreements with third-party payors that typically provide for payments at amounts less than established charges. A summary of the payment arrangements with major third-party payors consists of the following:
•
Medicaid: services are generally paid at prospectively determined rates per charge, per occasion of service, or per covered member.
•
Commercial insurance: payment agreements with certain insurance carriers provide for payment using prospectively determined rates per charge, discounts from established charges, and fee schedules.
Our patient service revenue, net of allowances, implicit price concessions and discounts, recognized from these major payor sources was as follows:
| |
|
|
For the Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Third-party payors
|
|
|
|
$ |
158,626 |
|
|
|
|
$ |
154,954 |
|
|
|
Patients
|
|
|
|
|
71,168 |
|
|
|
|
|
68,555 |
|
|
|
Total all payors
|
|
|
|
$ |
229,794 |
|
|
|
|
$ |
223,509 |
|
|
Patient Receivables and Credit Policy — Patient accounts receivable are uncollateralized patient obligations that are stated at the amount we expect to collect from outstanding balances. These obligations are primarily from local patients most of whom are insured under third-party payor agreements. Park Dental Partners, Inc. provides billing and collection services on behalf of the affiliated dental practices. Park Dental Partners, Inc. bills third-party payors on the patients’ behalf, or if a patient is uninsured, the patient is billed directly. Once claims are settled with the third-party payors, patients are billed for the remaining balance. Payments on accounts receivable are applied to the specific claim identified on the remittance advice or statement. Park Dental Partners, Inc. and its affiliated dentists have a policy of assessing a finance charge of 8% on patient past due accounts 90 days or older.
Carrying amounts of accounts receivable are reduced by contractual allowances and implicit price concessions that reflect management’s best estimate of the amounts that will not be collected. We provide for contractual adjustments under terms of third-party reimbursement agreements through a reduction of gross revenue and a credit to a contractual valuation allowance. In addition, we provide for probable uncollectible amounts, primarily for uninsured patients and amounts patients are personally responsible for, through a reduction in gross revenue and a credit to a valuation allowance based on its assessment of historical collection experience, trends for each of its major payor sources of revenue, and the current status of individual accounts. Balances that are still outstanding after we have used reasonable collection efforts are written off through a charge to the valuation allowance and credit to patient accounts receivable. Contractual allowances, concessions, and reserves for uncollectible accounts were $6,747 and $3,203, at December 31, 2024 and 2023, respectively. The overall increase is attributable to increased time to apply contractual payor allowances against receivables, driven by our transition to a new practice management and billing system in 2024.
Deferred Revenue — Deferred revenue is comprised of performance obligations satisfied over time which have not yet been completed, primarily related to orthodontic and dental subscription services.
Cost of Services — Cost of services includes clinical team member costs and benefits, dental supplies and laboratory fees, office occupancy, depreciation associated with practice assets, and other practice expenses. Advertising costs at the practice level charged to cost of services in the consolidated statement of operations was $425 for 2024 and $405 for 2023.
Operating Expenses — Operating expenses include general and administrative expenses and resource support center depreciation and intangible amortization of non-practice related assets. Advertising costs associated with the broader organization that are charged to general and administrative expense in the consolidated statement of operations were $1,873 in 2024 and $2,041 in 2023.
Lease Arrangements — We determine if an arrangement is or contains a lease at the lease inception date by evaluating whether the arrangement conveys the right to use an identified asset and whether we
obtain substantially all of the economic benefits from and have the ability to direct the use of the asset. Leases with an initial term of twelve months or less are not recorded on the balance sheet. At the lease commencement date, we recognize a lease liability and a right of use (“ROU”) asset representing our right to use the underlying asset over the lease term. The initial measurement of the lease liability is calculated on the basis of the present value of the remaining lease payments and the ROU asset is measured on the basis of this liability, adjusted by prepaid and accrued rent, lease incentives, and initial direct costs.
Our leases require other payments such as costs related to service components, real estate taxes, common area maintenance, and insurance. These costs are generally variable in nature and based on the actual costs incurred and required by the lease. As we have elected to not separate lease and non-lease components for all classes of underlying asset, all variable costs associated with the lease are expensed in the period incurred and presented and disclosed as operating expenses. Our lease agreements do not contain any residual value guarantees or restrictive financial covenants. We do not have any leases that have not yet commenced that create significant rights and obligations for the lessee.
On July 19, 2021, the FASB issued Accounting Standards Update (“ASU”) No. 2021-05, Leases (Topic 842): Lessors — Certain Leases with Variable Lease Payments (“ASU 2021-05”). ASU 2021-05 requires that a lessee use the rate implicit in the lease when measuring the lease liability and ROU asset, unless that rate is not readily determinable. We use our incremental borrowing rate (“IBR”) as the lease discount rate.
Income Taxes — Park Dental Partners, Inc. and PDG are taxed as a C corporation. NMN was taxed as a professional limited liability company (“PLLC”) until it was merged with PDG on September 29, 2023. TDS and OSM were taxed as PLLCs until September 30, 2023. Effective October 1, 2023, TDS and OSM elected to be taxed as a C corporation. TDS, OSM, and NMN were pass-through entities which were not subject to corporate income taxes. Instead, the members were liable for individual income taxes on their respective share of the PLLC’s taxable income or loss and tax credits.
Deferred income tax assets and liabilities are computed for differences between the financial and tax bases of assets and liabilities that will result in taxable or deductible amounts in the future based on enacted tax laws and rates applicable to the periods in which the differences are expected to affect taxable income. Items with differences between financial and income tax bases include the basis of property and equipment, goodwill, and deferred compensation. Valuation allowances are established when necessary to reduce deferred income tax assets to the amount expected to be realized.
Accounting principles for uncertainty in income taxes require the threshold for recognizing the benefits of tax return positions in the consolidated financial statements as “more likely than not” to be sustained by the taxing authority and require measurement of a tax position meeting the more-likely-than-not criterion, based on the largest benefit that is more than 50% likely to be realized. We had no unrecognized tax benefits as of December 31, 2024, and December 31, 2023. We recognize interest and penalties related to uncertain tax positions in income tax expense. We did not incur any interest or penalties for the years ended December 31, 2024, and December 31, 2023.
Our federal and state income tax returns are subject to examination by the IRS and state jurisdictions, generally for three years after they were filed. In addition, all amended federal and state income tax returns are also subject to examination.
Health Insurance — We participate in a self-insured program for a portion of medical benefits offered to employees and affiliated dental practices. As part of the self-insured program, we contract with an insurance carrier for claims administration that includes a provision for reimbursing for excess losses above specified limits, as defined in the contract. Included in accrued payroll and benefits liabilities in the accompanying consolidated balance sheet were reserves for claims estimated to be payable in connection with the self-insured program of approximately $1,103 at December 31, 2024, and $1,052 at December 31, 2023.
Immaterial Revision of Financial Statements — Subsequent to the issuance of the Company’s annual financial statements as of and for the year ended December 31, 2024, omitted disclosures related to the Company’s variable interest entities were identified. As a result, the Company has now included within footnote 16 the combined assets and liabilities of the Company’s variable interest entities as required under
Accounting Standards Codification 810 — Consolidation. Management does not believe the omission of this disclosure from the previously issued financial statements was material to the financial statements.
Recently Adopted Accounting Pronouncement — In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments — Credit Losses (Topic 326) (“ASU 2016-13”). ASU 2016-13 significantly changed how entities measure credit losses for most financial assets and certain other instruments that are not measured at fair value through net income. The most significant change in this standard is a shift from the incurred loss model to the expected loss model. Under the standard, disclosures are required to provide users of the financial statements with useful information in analyzing an entity’s exposure to credit risk and the measurement of credit losses. Financial assets held by us that are subject to the guidance in FASB ASU 2016-13 were trade accounts receivable. We adopted the standard effective January 1, 2023. The impact of the adoption was not material to the consolidated financial statements and primarily resulted in new disclosure.
Our allowance estimate is derived from a review of historical losses. We believe historical loss information is an appropriate method to calculate the expected allowance for credit losses.
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures (“ASU 2023-07”), which requires public entities with a single reportable segment to disclose significant segment expenses that are regularly provided to the CODM and included within the reported measure(s) of a segment’s profit or loss, the amount and composition of any other segment items, the title and position of the CODM, and how the CODM uses the reported measure(s) of a segment’s profit or loss to assess performance and decide how to allocate resources. The guidance is effective for annual periods beginning after December 15, 2023, and interim periods beginning after December 15, 2024, applied retrospectively with early adoption permitted. We adopted the standard effect January 1, 2024.
Recently Issued Accounting Pronouncements — In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures (“ASU 2023-09”). ASU 2023-09 includes amendments that further enhance income tax disclosures, primarily through standardization and disaggregation of rate reconciliation categories and income taxes paid by jurisdiction. ASU 2023-09 is effective for annual periods beginning after December 15, 2024, on either a prospective or retrospective basis, with early adoption permitted. We are currently evaluating the impact of ASU 2023-09 on its consolidated financial statements and related disclosures. We do not believe the adoption of ASU 2023-09 will have a material impact on the accompanying condensed financial statements and disclosures.
In November 2024, the FASB issued ASU 2024-03, Income Statement-Reporting Comprehensive Income-Expense Disaggregation Disclosures (Subtopic 220-40): Disaggregation of Income Statement Expenses (“ASU 2024-03”), which requires the disaggregation, in the notes to the financial statements, of certain cost and expense captions presented on the face of the Company’s Statement of Operations, to provide enhanced transparency to investors. The update may be applied either prospectively or retrospectively. ASU 2024-03 is effective for fiscal years beginning after December 15, 2026, and interim periods within fiscal years beginning after December 15, 2027. Early adoption is permitted. We are currently evaluating the impact ASU 2024-03 will have on its disclosures.
2. ACQUISITIONS
Acquisitions in 2024 and 2023 were accounted for in accordance with the acquisition method under ASC 805, Business Combinations. In 2024, our affiliated dental practices acquired two dental practices through business acquisitions. The practices provide general dental services in the Minneapolis/St. Paul metropolitan areas. The final purchase consideration for the practices was $1,300. We financed these acquisitions with cash of $910 and practice acquisition installment notes of $390. Practice acquisition installment notes are generally payable between 12 and 48 months after the date of acquisition.
In 2023, we acquired the assets of two dental practices and one endodontic practice through business acquisitions. The dental and endodontic practices provide general and specialty dental services in the Minneapolis/St. Paul metropolitan areas. The final purchase consideration for the practices was $2,067. We financed these acquisitions with cash of $1,455 and practice acquisition installment notes of $612.
The results of operations and financial condition of acquired entities have been included in our consolidated results as of the date of acquisition. For the years ended December 31, 2024, and December 31, 2023, the acquired entities’ impact on revenues and net earnings was not material. Unaudited pro forma revenues and net earnings for the years ended December 31, 2024, and December 31, 2023, as if the business combinations had occurred on the first of the year, were immaterial for the periods.
Goodwill arising from the acquisitions consists largely of the synergies and economies of scale expected from increased revenue and cost reductions. For 2024, approximately $11 of the goodwill is deductible for income tax purposes. For 2023, approximately $9 of the goodwill is deductible for income tax purposes.
A summary of the assets acquired, liabilities assumed, and cash paid is as follows:
| |
|
|
At December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Dental supplies
|
|
|
|
$ |
20 |
|
|
|
|
$ |
30 |
|
|
|
Property and equipment
|
|
|
|
|
220 |
|
|
|
|
|
214 |
|
|
|
Right of use lease asset
|
|
|
|
|
28 |
|
|
|
|
|
661 |
|
|
|
Patient lists
|
|
|
|
|
558 |
|
|
|
|
|
1,317 |
|
|
|
Goodwill
|
|
|
|
|
502 |
|
|
|
|
|
506 |
|
|
|
Right of use lease liability
|
|
|
|
|
(28) |
|
|
|
|
|
(661) |
|
|
|
Assets acquired and liabilities assumed
|
|
|
|
$ |
1,300 |
|
|
|
|
$ |
2,067 |
|
|
|
Total purchase price
|
|
|
|
$ |
1,300 |
|
|
|
|
$ |
2,067 |
|
|
|
Issuance of amounts due to sellers – acquisitions
|
|
|
|
|
(390) |
|
|
|
|
|
(612) |
|
|
|
Cash paid in business combinations
|
|
|
|
$ |
910 |
|
|
|
|
$ |
1,455 |
|
|
3. REVENUE
Disaggregated Revenue Information: We view the following disaggregated disclosures as useful to understanding the composition of revenue:
| |
|
|
For the year ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
General dentistry
|
|
|
|
$ |
170,809 |
|
|
|
|
$ |
168,192 |
|
|
|
Multi-Specialty dentistry
|
|
|
|
|
58,985 |
|
|
|
|
|
55,317 |
|
|
|
Revenue
|
|
|
|
$ |
229,794 |
|
|
|
|
$ |
223,509 |
|
|
4. CONCENTRATION OF CREDIT RISK
Financial instruments that potentially subject us to possible credit risk consist principally of accounts receivable and cash deposits in excess of insured limits.
Accounts receivable consist of amounts due from patients, their insurers, or governmental agencies for health care provided to the patients. The majority of patients are from Minneapolis/St. Paul, Rochester, Sartell, and Duluth, Minnesota, and western Wisconsin, and the surrounding areas.
The mix of receivables from patients and third-party payors are as follows:
| |
|
|
As of December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Patients
|
|
|
|
|
31% |
|
|
|
|
|
31% |
|
|
|
Third-party payors
|
|
|
|
|
69 |
|
|
|
|
|
69 |
|
|
|
Totals
|
|
|
|
|
100% |
|
|
|
|
|
100% |
|
|
For the years ended December 31, 2024, and December 31, 2023, one third-party payor and their affiliated entities accounted for 32% and 33%, respectively, of our consolidated net revenue.
Accounts receivable from one third-party payor and their affiliated entities accounted for 29% and 30% of total accounts receivable at December 31, 2024, and December 31, 2023, respectively.
We maintain a depository relationship with one primary financial institution. Operating cash requirements frequently require that amounts on deposit exceed Federal Deposit Insurance Corporation limits. We believe this financial institution has a strong credit rating and that credit risk related to these deposits is minimal. As of December 31, 2024, and December 31, 2023, cash deposits in excess of the federally insured amounts were $2,356 and $0, respectively.
5. PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
| |
|
|
As of December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Land
|
|
|
|
$ |
46 |
|
|
|
|
$ |
46 |
|
|
|
Buildings
|
|
|
|
|
140 |
|
|
|
|
|
140 |
|
|
|
Computer equipment
|
|
|
|
|
16,877 |
|
|
|
|
|
15,912 |
|
|
|
Furniture and fixtures, and signage
|
|
|
|
|
7,379 |
|
|
|
|
|
7,179 |
|
|
|
Dental equipment
|
|
|
|
|
46,053 |
|
|
|
|
|
43,091 |
|
|
|
Leasehold improvements
|
|
|
|
|
42,263 |
|
|
|
|
|
40,542 |
|
|
|
Total property and equipment
|
|
|
|
|
112,758 |
|
|
|
|
|
106,910 |
|
|
|
Less accumulated depreciation
|
|
|
|
|
82,695 |
|
|
|
|
|
75,395 |
|
|
|
Property and equipment – net
|
|
|
|
$ |
30,063 |
|
|
|
|
$ |
31,515 |
|
|
Depreciation expense in the consolidated statement of operations was $7,738 for 2024 and $7,251 for 2023. All assets of the Company are held in the United States of America.
6. GOODWILL AND INTANGIBLE ASSETS
Goodwill and intangible assets consisted of the following:
| |
|
|
As of December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Goodwill
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance – beginning
|
|
|
|
$ |
16,057 |
|
|
|
|
$ |
15,551 |
|
|
|
Goodwill acquired
|
|
|
|
|
502 |
|
|
|
|
|
506 |
|
|
|
Balance – ending
|
|
|
|
$ |
16,559 |
|
|
|
|
$ |
16,057 |
|
|
|
2024
|
|
|
Gross Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Net Carrying
Value
|
|
|
Amortizable intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trademarks
|
|
|
|
$ |
1,950 |
|
|
|
|
$ |
1,950 |
|
|
|
|
$ |
— |
|
|
|
Patient lists
|
|
|
|
|
16,658 |
|
|
|
|
|
5,590 |
|
|
|
|
|
11,068 |
|
|
|
Total intangible assets
|
|
|
|
$ |
18,608 |
|
|
|
|
$ |
7,540 |
|
|
|
|
$ |
11,068 |
|
|
|
2023
|
|
|
Gross Carrying
Amount
|
|
|
Accumulated
Amortization
|
|
|
Net Carrying
Value
|
|
|
Amortizable intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trademarks
|
|
|
|
$ |
1,950 |
|
|
|
|
$ |
1,950 |
|
|
|
|
$ |
— |
|
|
|
Patient lists
|
|
|
|
|
16,100 |
|
|
|
|
|
4,493 |
|
|
|
|
|
11,607 |
|
|
|
Total intangible assets
|
|
|
|
$ |
18,050 |
|
|
|
|
$ |
6,443 |
|
|
|
|
$ |
11,607 |
|
|
Trademark and patient lists amortization was $1,097 in 2024 and $1,044 in 2023.
Amortization expense on amortizable intangible assets for each of the next five years and thereafter is as follows (in thousands):
| |
2025
|
|
|
|
$ |
1,111 |
|
|
| |
2026
|
|
|
|
|
1,111 |
|
|
| |
2027
|
|
|
|
|
1,110 |
|
|
| |
2028
|
|
|
|
|
1,110 |
|
|
| |
2029
|
|
|
|
|
969 |
|
|
| |
Thereafter
|
|
|
|
|
5,657 |
|
|
7. INCOME TAXES
The provision (benefit) for income taxes consisted of the following:
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Current:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
|
$ |
1,579 |
|
|
|
|
$ |
(376) |
|
|
|
State
|
|
|
|
|
489 |
|
|
|
|
|
1,400 |
|
|
|
Total current
|
|
|
|
|
2,068 |
|
|
|
|
|
1,024 |
|
|
|
Deferred:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
|
|
567 |
|
|
|
|
|
(2,994) |
|
|
|
State
|
|
|
|
|
218 |
|
|
|
|
|
(1,850) |
|
|
|
Total deferred
|
|
|
|
|
785 |
|
|
|
|
|
(4,844) |
|
|
|
Totals
|
|
|
|
$ |
2,853 |
|
|
|
|
$ |
(3,820) |
|
|
During the fiscal year ended December 31, 2023, TDS and OSM elected to restructure their corporate status to convert from partnerships to C corporations. As a result of the legal entity restructure, we began reporting tax for these entities as a C corporation effective October 1, 2023. The change in tax status from partnership to a C corporation required initial recognition of deferred tax asset and liabilities not previously recognized by PDG. Prior to the reorganization, a portion of the deferred tax assets and liabilities of OSM and TDS were not recognized to the extent those balances were not attributed to PDG, as they were attributable individual member owners. Our restructuring resulted in additional income tax benefit in 2023 of approximately $2,939.
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Income tax expense at federal statutory rate
|
|
|
|
$ |
1,515 |
|
|
|
|
$ |
117 |
|
|
|
Legal entity restructuring
|
|
|
|
|
— |
|
|
|
|
|
(2,939) |
|
|
|
State taxes
|
|
|
|
|
741 |
|
|
|
|
|
(450) |
|
|
|
Permanent deductions
|
|
|
|
|
(241) |
|
|
|
|
|
(230) |
|
|
|
Deferred adjustments
|
|
|
|
|
205 |
|
|
|
|
|
(463) |
|
|
|
Other – net
|
|
|
|
|
633 |
|
|
|
|
|
145 |
|
|
|
Income tax provision (benefit)
|
|
|
|
$ |
2,853 |
|
|
|
|
$ |
(3,820) |
|
|
Deferred income taxes reflect the net tax effects of temporary differences between the financial reporting basis and the tax basis of our assets and liabilities and are as follows:
| |
|
|
As of December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred compensation
|
|
|
|
$ |
20,021 |
|
|
|
|
$ |
19,320 |
|
|
|
Accrued compensation
|
|
|
|
|
1,495 |
|
|
|
|
|
1,522 |
|
|
|
Allowances for bad debt and contractual adjustments
|
|
|
|
|
344 |
|
|
|
|
|
920 |
|
|
|
Net operating loss carryforward
|
|
|
|
|
— |
|
|
|
|
|
788 |
|
|
|
Leases
|
|
|
|
|
1,112 |
|
|
|
|
|
1,182 |
|
|
|
Other
|
|
|
|
|
839 |
|
|
|
|
|
1,097 |
|
|
|
Total deferred tax assets
|
|
|
|
|
23,811 |
|
|
|
|
|
24,829 |
|
|
|
Deferred tax liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intangible assets
|
|
|
|
|
3,051 |
|
|
|
|
|
2,704 |
|
|
|
Fixed assets
|
|
|
|
|
2,226 |
|
|
|
|
|
2,857 |
|
|
|
Prepaids
|
|
|
|
|
376 |
|
|
|
|
|
331 |
|
|
|
Total deferred tax liabilities
|
|
|
|
|
5,653 |
|
|
|
|
|
5,892 |
|
|
|
Net deferred taxes
|
|
|
|
$ |
18,158 |
|
|
|
|
$ |
18,937 |
|
|
The valuation allowance for deferred tax assets as of December 31, 2024, and 2023, was $0. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. We believe it is more likely than not that we will realize the benefits of these deductible differences. Recognized Net operating loss carryforwards do not have an expiration. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to temporary differences between financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted income tax rates in effect for the year the temporary differences are expected to be recovered or settled. Tax rate changes affecting deferred tax assets and liabilities are recognized in income at the enactment date.
8. LINE OF CREDIT
In 2024, activity on the line of credit included advances of $63,239 and repayments of $73,515. In 2023, activity on the line of credit included advances of $148,607 and repayments of $147,384. The line of credit balance at December 31, 2024, and December 31, 2023, was $0 and $10,276, respectively.
At December 31, 2024, we had a $15,000 line of credit with a bank bearing interest at the one-month SOFR plus 2.00%. No amounts were drawn on the line of credit at December 31, 2024. At December 31,
2023, we had a $23,000 line of credit with a bank bearing interest at the one-month SOFR plus 1.90% which expired in March 2024. On March 27, 2024, we entered into a new credit agreement with the bank which provides for a $13,000 term loan and a $15,000 line of credit with the right to request an additional $10,000. The line of credit matures in March 2027. The term loan matures in March 2029 and carries an interest rate equal to the one-month SOFR plus 2.10%. The agreement requires, among other things, that we comply with a minimum fixed charge coverage ratio, a total cash flow leverage ratio, and restriction on individual business combinations in excess of specified limits, as defined in the agreement. The loans are secured by all business assets of Park Dental Partners, Inc. and subsidiaries, and the affiliated dental practices. We were in compliance with all debt covenants as of December 31, 2024 and 2023.
9. LONG-TERM DEBT
Long-term debt consisted of the following:
| |
|
|
For the Year
Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Bank note payable, principal due in monthly installments of $155. The term loan matures in March 2029 and carries an interest rate equal to the one-month SOFR plus 2.10%. The note is secured by all business assets of the Company. Interest expense related to the bank note payable was approximately $678 for the year ended December 31, 2024.
|
|
|
|
$ |
11,607 |
|
|
|
|
$ |
— |
|
|
|
Subordinated notes payable, principal due at maturity and interest due quarterly
through October 1, 2037. Interest is equal to the greater of 14% of the principal
balance or an amount based on a formula using average dentist compensation or a
formula based on total revenue. The effective interest rate was 28.1%. Of this
amount, $2,012 is due to shareholders and two related parties. The notes are secured
by all business assets of the Company and are subordinated to the bank notes
payable and the line of credit. Interest expense related to the subordinated debt
agreements during the years ended December 31, 2024, and December 31, 2023, was
approximately $607 and $608, respectively.
|
|
|
|
|
2,165 |
|
|
|
|
|
2,165 |
|
|
|
Notes payable to former dentist shareholders for the redemption of shares, principal
and interest due in 60 equal monthly installments, with interest at the lesser of 10% or
1% less than the prime rate published in The Wall Street Journal (Midwest Edition).
Total principal payments for 2024 and 2023 were $100 and $157, respectively.
|
|
|
|
|
122 |
|
|
|
|
|
222 |
|
|
|
Totals
|
|
|
|
|
13,894 |
|
|
|
|
|
2,387 |
|
|
|
Less – current maturities
|
|
|
|
|
1,915 |
|
|
|
|
|
100 |
|
|
|
Long-term portion
|
|
|
|
$ |
11,979 |
|
|
|
|
$ |
2,287 |
|
|
Scheduled principal payments on long-term debt at December 31, 2024, are summarized as follows (in thousands):
| |
2025
|
|
|
|
$ |
1,915 |
|
|
| |
2026
|
|
|
|
|
1,895 |
|
|
| |
2027
|
|
|
|
|
1,884 |
|
|
| |
2028
|
|
|
|
|
1,857 |
|
|
| |
2029
|
|
|
|
|
4,178 |
|
|
| |
Thereafter
|
|
|
|
|
2,165 |
|
|
| |
Total
|
|
|
|
$ |
13,894 |
|
|
10. DEFERRED COMPENSATION
Park Dental Partners, Inc. and its affiliated dental practices have four deferred compensation plans. Only the Nonqualified Deferred Compensation is still active, while balances in all other plans have been closed to new participation.
•
Active Deferred Compensation Plans:
Nonqualified Deferred Compensation Plans — We have adopted a nonqualified deferred compensation plan that provides participants the opportunity to defer compensation on a pretax basis. In addition, we may make discretionary credits to the compensation account of an active participant at any time. Discretionary credits of $14 were awarded during 2024. No employer discretionary credits were awarded during 2023. Benefit payments to participants are available upon termination of employment, disability, death, unforeseeable emergencies, a change-in-control event, as defined, or through a qualified in-service distribution. The agreement provides eligible participants with the option to receive payment in a lump sum distribution or up to five annual installments. Participants are immediately 100% vested in their voluntary deferred compensation contributions. Participants are fully vested in employer credits after two years of service. Participant accounts are credited with deferred compensation contributions and earnings thereon, as defined. At December 31, 2024, the total deferred compensation liability related to the non-qualified plan was $20,177, of which $19,788 was presented as Non Qualified Deferred Compensation Plan and $388 as Deferred compensation — Other. At December 31, 2023, the total deferred compensation liability related to the non-qualified plan of $17,471 was presented as Non Qualified Deferred Compensation Plan. Deferred compensation expense under the plan were $3,307 in 2024 and $4,867 in 2023.
•
Deferred Compensation Plans — Other:
We have several deferred compensation plans which have been closed to new participants and service crediting which are described collectively as Deferred Compensation Plans — Other.
Professional Employee Compensation Plans (the ‘PEC Plan’) — The PEC Plan provided for a deferred compensation benefit to certain employees of affiliated dental practices in the event of separation from service. The PEC Plan was closed to new participants on September 30, 2023.
The PEC Deferred compensation benefit was based on a formula that incorporates EBITDA and adjusted gross revenues as defined by each of the agreements. Effective December 31, 2022, no additional compensation was granted under this formula. The deferred compensation balance is paid over a period of five years from the date of separation. The maximum amount we will be required to pay under the PEC Plan in each year is capped at 2% of the our annual adjusted gross revenue, as defined in the agreement. The PEC Plan was frozen as of December 31, 2022, and no expense was recognized for this plan in 2024 or 2023.
Equity Accumulation Plan (the ‘Accumulation Plan’) — The Accumulation Plan provided for benefit payments to participants after termination of employment because of death, permanent disability or attainment of age 65. Alternatively, the value of the participant’s vested account is paid following termination of employment at or after age 55 with 20 years of service.
The Accumulation Plan was closed to new participants and service crediting or earnings on March 1, 2008. At December 31, 2024, and December 31, 2023, the total deferred compensation liability related to the equity accumulation plan was $1,403 and $1,495, respectively. We do not anticipate any future compensation expense under the Accumulation plan.
Phantom Equity Plan (‘Phantom Plan’) — The Phantom Plan provided certain clinical and nonclinical leaders with phantom equity awards. The plan provides for participants to receive benefits upon termination of employment, disability, death, a change-in-control event, as defined, or via a qualified in-service distribution election. The plan provides for annual installment payments over five years after separation of service, or upon in-service distribution election. The Phantom Plan was closed to new participants and service crediting or earnings in 2022. At December 31, 2024, the sole remaining participant is fully vested. Each award was subject to vesting as defined in each individual award. At December 31, 2024, and December 31, 2023, the total deferred compensation liability related to the phantom equity plan was $1,862 and $2,051, respectively. There was no deferred compensation expense under the agreement in 2024 or 2023.
Obligations to former employees of affiliated dental groups were $3,399 at December 31, 2024, and $1,010 at December 31, 2023. The short-term portion has been included in Deferred compensation — short term on the consolidated balance sheet. The balance of Deferred compensation other, which includes the professional employee compensation plan, equity accumulation plan, and the phantom equity plan, was $47,766 at December 31, 2024, and $49,271 at December 31, 2023. Payments made under the deferred compensation plan were $742 and $765, for the years ended December 31, 2024, and 2023, respectively.
The following table summarizes the composition of our Deferred Compensation Plans — Other:
| |
|
|
Deferred Compensation – Other
As of December 31, 2024
|
|
| |
|
|
Professional
Employee
Compensation
Plans
|
|
|
Equity
Accumulation
Plan
|
|
|
Phantom
Equity
|
|
|
Deferred
Compensation –
Other Plans
|
|
|
Deferred compensation – Other plans
|
|
|
|
$ |
44,760 |
|
|
|
|
$ |
1,351 |
|
|
|
|
$ |
1,655 |
|
|
|
|
$ |
47,766 |
|
|
|
Deferred compensation – Short term
|
|
|
|
|
857 |
|
|
|
|
|
52 |
|
|
|
|
|
207 |
|
|
|
|
|
1,116 |
|
|
|
Total Liability
|
|
|
|
$ |
45,617 |
|
|
|
|
$ |
1,403 |
|
|
|
|
$ |
1,862 |
|
|
|
|
$ |
48,882 |
|
|
| |
|
|
Deferred Compensation – Other
As of December 31, 2023
|
|
| |
|
|
Professional
Employee
Compensation
Plans
|
|
|
Equity
Accumulation
Plan
|
|
|
Phantom
Equity
|
|
|
Deferred
Compensation –
Other Plans
|
|
|
Deferred compensation – Other plans
|
|
|
|
$ |
45,725 |
|
|
|
|
$ |
1,495 |
|
|
|
|
$ |
2,051 |
|
|
|
|
$ |
49,271 |
|
|
|
Deferred compensation – Short term
|
|
|
|
|
438 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
438 |
|
|
|
Total Liability
|
|
|
|
$ |
46,163 |
|
|
|
|
$ |
1,495 |
|
|
|
|
$ |
2,051 |
|
|
|
|
$ |
49,709 |
|
|
11. SHAREHOLDERS’ DEFICIT
In May 2023, the shareholders of PDG, TDS, and OSM voted to create a management company, Park Dental Partners, Inc. On October 1, 2023, owners exchanged substantially all their interest in PDG, TDS and OSM for shares of Park Dental Partners, Inc.
Upon reorganization in 2023, authorized Park Dental Partners, Inc. shares were comprised of 100 million common shares, 1 million Class B common shares, and 5 million preferred shares. All stock has a par value of $0.0001 per share. Subsequently, in 2024, Park Dental Partners, Inc. shareholders voted to eliminate the authorized Class B shares.
Each holder of common stock is entitled to one vote for each share of common stock held. Prior to the elimination of Class B common stock, the class was entitled to a pro rata number of votes for each share of Class B common stock held, such that the total number of votes of all of the outstanding shares of Class B common stock equals 51% of the voting power of all of the outstanding shares of capital stock of the Company.
During 2024, the Park Dental Partners, Inc. Board of Directors approved two dividends totaling $6,742 to the holders’ of unrestricted common stock.
| |
|
|
Outstanding shares
As of December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Total Common unrestricted shares
|
|
|
|
|
1,796,400 |
|
|
|
|
|
1,735,980 |
|
|
Restricted Stock (“RSs”) — Restricted Park Dental Partners, Inc. shares vest 25% upon the closing of an initial public offering of our common stock and continue to vest at the rate of 6.25% on each subsequent calendar quarter for the following 12 quarters. In the event of a change in control, the restricted shares shall be vested immediately upon the date of the change in control. An initial public offering was not deemed
probable in 2024 or 2023, accordingly, no compensation cost was recognized in 2024 or 2023 for these restricted share grants.
The following table summarizes RS activity:
| |
|
|
RSU
|
|
| |
|
|
Number of
RSUs
|
|
|
Weighted
Average Grant
Date Fair Value
|
|
| |
|
|
(in thousands)
|
|
|
Unvested RSs at January 1, 2023
|
|
|
|
|
— |
|
|
|
|
$ |
— |
|
|
|
RSUs granted
|
|
|
|
|
3,264 |
|
|
|
|
|
6.81 |
|
|
|
RSUs vested
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
RSUs forfeited
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Unvested RSs at December 31, 2023
|
|
|
|
|
3,264 |
|
|
|
|
|
6.81 |
|
|
|
RSs granted
|
|
|
|
|
307 |
|
|
|
|
|
6.81 |
|
|
|
RSs vested
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
RSs forfeited
|
|
|
|
|
(17) |
|
|
|
|
|
6.81 |
|
|
|
Unvested RSs at December 31, 2024
|
|
|
|
|
3,554 |
|
|
|
|
$ |
6.81 |
|
|
Unrecognized compensation expense related to outstanding RSs at December 31, 2024, was approximately $24,203.
The below paragraphs describe the former equity securities in our affiliated dental practices which were outstanding prior to our restructuring. Materially all securities were fully extinguished in exchange for shares of Park Dental Partners, Inc. common stock in 2023.
Unrestricted Stock Grant — During 2024 we issued 77,688 fully vested unrestricted common stock, and recognized $528 stock based compensation expense for the year ended December 31, 2024.
Before they were exchanged for shares in Park Dental Partners, Inc. in 2023, shares of PDG, TDS, and OSM had the following characteristics:
PDG Class A and Class B Common Stock — The authorized capital of PDG consisted of no-par Class A nonvoting common stock and no-par Class B voting common stock.
Class B common stock had the same characteristics, rights, and preferences as Class A common stock, except that voting rights rested only with the holders of Class B common stock. Each shareholder earned one share of Class B common stock for each year of service as a shareholder; however, each shareholder could not own more than 10 shares of Class B common stock.
TDS Membership Units — The authorized capital of TDS consisted of Class A units and Class B units. PDG’s membership units in TDS were deemed Class A units, and the professional employee membership units were deemed Class B units. The members holding Class A units and Class B units had identical rights and preferences, except for certain voting and distribution rights as otherwise set forth in the operating agreement.
OSM Membership Units — The authorized capital of OSM consisted of facility units and provider units. PDG’s and TDS’s membership units in OSM were facility units, and the professional employee membership units were provider units. The facility and provider units had identical rights and preferences, except for certain voting and distribution rights as otherwise set forth in the operating agreement.
PDG Stock Options — On December 1, 2008, PDG granted Class A stock options to certain shareholders. These options vested immediately and expired upon the earlier of the exercise of the options or the termination of the shareholder’s employment. In 2013, PDG amended the options to allow for exercise only upon a change of control, as defined. PDG and its shareholders holding options agreed to terminate
the options as of October 1, 2023. In exchange for the termination agreement, holders of these terminated options received restricted shares in Park Dental Partners, Inc.
NMN Membership Units — The authorized capital of NMN consisted of Class A common units, Class B common units, and Class B preferred units. Membership units owned by PDG were Class A common units, and the professional employee membership units were Class B common and Class B preferred units. Class A common and Class B common units had identical rights and preferences, except for certain distribution rights as otherwise set forth in the operating agreement. Class B preferred units were nonvoting and have no rights to distributions or bonuses. On September 29, 2023, the Board of Governors of NMN voted to merge into PDG and issued and outstanding NMN member units converted into shares of PDG. These units were fully extinguished in 2023.
Share and Unit Repurchase Agreements — Our affiliated dental groups had share and unit repurchase agreements with its individual shareholders and members (“owners”). The agreements required each respective company to purchase the owner’s shares or units upon termination of employment, in the event of death, upon attaining the age of 70, or upon the revocation or suspension of license to practice as a dentist in the state of Minnesota or Wisconsin. The agreements provided for the owners to receive payment in 60 monthly installments, including interest at the lesser of 1% less than the prime interest rate or 10%.
12. EARNINGS PER COMMON SHARE
The following table sets forth the computation of basic and diluted earnings per share attributable to common shareholders:
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands, except
per share amounts)
|
|
|
Net income available to PARK common shareholders
|
|
|
|
$ |
4,363 |
|
|
|
|
$ |
4,889 |
|
|
|
Earnings per share attributable to PARK common shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
$ |
2.42 |
|
|
|
|
$ |
2.82 |
|
|
|
Diluted
|
|
|
|
$ |
2.42 |
|
|
|
|
$ |
2.82 |
|
|
|
Weighted-average number of common stock shares outstanding
|
|
|
|
|
1,806 |
|
|
|
|
|
1,736 |
|
|
|
Dilutive impact of share based awards
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Weighted-average number of common stock shares outstanding – diluted
|
|
|
|
|
1,806 |
|
|
|
|
|
1,736 |
|
|
|
Anti-dilutive restricted stock excluded from diluted EPS computation
|
|
|
|
|
3,547 |
|
|
|
|
|
3,264 |
|
|
All issuances of equity interests in the year ended December 31, 2023 occurred on January 1, 2023, and accordingly the shares outstanding for 2023 were the same from January 1, 2023 through December 31, 2023. Shares issued prior to the reorganization in October 2023 were included in the reorganization exchange described in Note 10, and that exchange has been reflected on a retrospective basis for purposes of calculating the weighted average shares outstanding.
13. COMMITMENT AND CONTINGENCIES
Operating Leases
The Company leases all but one of its locations. Excluding renewal options that are not reasonably certain to be exercised, our leases have remaining contractual terms that primarily range from 2 to 14 years. Most of the leases contain renewal options and escalation clauses. Our property leases require payment of real estate taxes, insurance, and common area maintenance, in addition to rent. Our lease agreements do not contain any material residual value guarantees or material restrictive covenants.
Lease Cost — Lease cost included in our consolidated statement of operations consisted of the following:
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Lease Cost
|
|
|
|
$ |
7,454 |
|
|
|
|
$ |
7,209 |
|
|
Our 2024 lease costs of $7,337 are included in office occupancy expense and $117 are included in general and administrative expense. Our 2023 lease costs of $7,097 are included in office occupancy expense and $112 are included in general and administrative expense.
Lease cost associated with operating leases and short-term leases (i.e., leases with an initial term of 12 months or less) is recognized on a straight-line basis from the date we take possession of the property through the end of the lease term. Variable lease payments not recognized in the measurement of operating lease liabilities and are expensed as incurred.
Operating Right-of-Use Assets and Lease Liabilities — Operating right-of-use assets and lease liabilities included on our consolidated balance sheet were as follows:
| |
|
|
As of December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Lease right-of-use assets – operating leases
|
|
|
|
$ |
44,396 |
|
|
|
|
$ |
44,277 |
|
|
|
Lease liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current operating leases
|
|
|
|
$ |
6,310 |
|
|
|
|
$ |
6,287 |
|
|
|
Non-current operating leases
|
|
|
|
|
41,954 |
|
|
|
|
|
42,104 |
|
|
|
Total lease liabilities
|
|
|
|
$ |
48,264 |
|
|
|
|
$ |
48,391 |
|
|
Remaining Lease Terms and Discount Rates — ASC 842 requires we recognize right of use assets and lease liabilities for its operating leases. A key component of this is to determine the incremental borrowing rate, which is used to discount future lease payments. The incremental borrowing rate is defined as the rate of interest that a lessee would have to pay to borrow over a similar term, with similar security, the funds necessary to purchase the underlying asset in a similar economic environment. Since the interest rate implicit in our lease contracts is typically not readily determinable, we reviewed existing debt financing arrangements and the types of leases as well as the lease term and type of collateral to calculate the incremental borrowing rate.
The weighted-average remaining lease terms and discount rates associated with our operating lease liabilities were as follows:
| |
|
|
At December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Weight-average discount rate-operating leases
|
|
|
3.36%
|
|
|
2.71%
|
|
|
Weight-average remaining lease term-operating leases
|
|
|
10.08 years
|
|
|
10.72 years
|
|
Supplemental Cash Flow Information — Supplemental cash flow information associated with our operating leases is as follows:
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
| |
|
|
(in thousands)
|
|
|
Non-cash information – right-of-assets obtained in exchange for lease liabilities – operating leases
|
|
|
|
$ |
5,552 |
|
|
|
|
$ |
7,274 |
|
|
Maturities of Operating Lease Liabilities — The following table summarizes our minimum lease payments under noncancelable operating leases with initial or remaining lease terms in excess of one year:
| |
|
|
As of December 31,
2024
|
|
| |
|
|
(in thousands)
|
|
|
Fiscal 2025
|
|
|
|
$ |
7,847 |
|
|
|
Fiscal 2026
|
|
|
|
|
7,435 |
|
|
|
Fiscal 2027
|
|
|
|
|
6,737 |
|
|
|
Fiscal 2028
|
|
|
|
|
5,728 |
|
|
|
Fiscal 2029
|
|
|
|
|
4,528 |
|
|
|
Thereafter
|
|
|
|
|
25,170 |
|
|
|
Total lease payments
|
|
|
|
|
57,445 |
|
|
|
Less liability accretion
|
|
|
|
|
(9,181) |
|
|
|
Present value of lease liabilities
|
|
|
|
$ |
48,264 |
|
|
Legal Contingencies — In the normal course of business, we may be involved in various legal proceedings such as, but not limited to, the following: lawsuits alleging negligence in care or general liability, violation of regulatory bodies’ rules and regulations, or violation of federal and/or state laws.
We and our affiliated dental practices have been named as a defendant in various lawsuits in the normal course of business, primarily for employment liability, malpractice claims and contractual business disputes. At the present time, we do not believe any pending lawsuits will have a material adverse effect on our operating results, cash flows, liquidity or financial position.
On or about August 9, 2024, we advised certain patients that certain information of our affiliated dental practices was the subject of a data breach. As a result of the incident, multiple claims were filed against us in state and federal courts in Minnesota. The claims were dismissed without prejudice and were subsequently refiled as a single, putative class action suit in Minnesota District Court entitled, In re Park Dental Data Breach Litigation, Case No. 27-CV-24-12335, Fourth Judicial District, County of Hennepin, State of Minnesota. We recently filed a motion to dismiss this matter. A loss contingency related to this incident is reasonably possible but given the litigation is in the very early stages, we cannot reasonably estimate a range of possible loss. We will continue to evaluate information as it becomes known, and it is possible that future results of operations or cash flows for any particular interim or annual period could be materially affected by unfavorable resolutions of this matter.
14. FINANCE LEASE
We entered into a finance lease agreement in 2020 to fund the acquisition of furniture and fixtures and equipment. The cost of furniture and fixtures and equipment is included in property and equipment on the consolidated balance sheet and was $183 at December 31, 2024, and December 31, 2023. Accumulated amortization on the furniture and fixtures and equipment was $168 at December 31, 2024, and $133 at December 31, 2023. Amortization of assets under capital leases is included in depreciation expense. The lease is secured by the furniture and fixtures and equipment. The effective interest rate of this lease is 2.38%.
15. RETIREMENT PLAN
We have a defined contribution retirement plan covering all employees and employees of affiliated dental practices. Employees are eligible to enter into the plan on the later of the date of hire or attainment of age 21 and are allowed to defer up to 100% of their compensation, subject to a limit determined by the Internal Revenue Service. The plan allows us to make discretionary matching contributions and Board-approved profit-sharing contributions. Our Board elected to forego a profit-sharing contribution for 2024 and 2023. There were safe harbor matching contributions of 3% of compensation to each eligible employee totaling approximately $3,474 in 2024 and $3,294 in 2023.
16. VARIABLE INTEREST ENTITIES
Our affiliated dental practices employ dentists, contract with payors and deliver dental services to patients throughout the Minneapolis/St. Paul Metropolitan area; Rochester, Minnesota; Duluth, Minnesota; Sartell, Minnesota; and western Wisconsin. Park Dental Partners, Inc. provides a wide range of support services to the affiliated dental practices. Activities include but are not limited to operational support of clinical facilities, marketing, information technology infrastructure, and the sourcing and managing of dental plan contracts.
We evaluated whether we have a variable interest in our affiliated dental practices, whether practices are VIEs, and whether we have a controlling financial interest in them. We’ve concluded that there are variable interests in the affiliated dental practices on the basis of its Administrative Resources Agreements which provides for reimbursement of costs and management fee payable to us in exchange for providing management and administrative services related to the growth of the patient population, development of all necessary policies and operating procedures, including development and implementation of clinical practice guidelines, and quality assurance and utilization management programs. We have concluded that the success or failure of the dental resource organization (DRO) in conducting these support activities will most significantly impact the economic performance of our affiliated dental practices. In addition, our variable interests in these practices provide us with the right to receive benefits that could potentially be significant. We also note there are no assets of the affiliated dental practices that can not be used to settle obligations of the Company, and there are no liabilities of the affiliated dental practices for which creditors do not have recourse to the general credit of Park Dental Partners, Inc. as the primary beneficiary. The single member of each of the respective affiliated dental practices is a shareholder of the Park Dental Partners, Inc. As a result of this analysis, Park Dental Partners, Inc. concluded that it is the primary beneficiary of the affiliated dental practices and therefore consolidates their balance sheets, results of operations and cash flows. We perform a qualitative assessment of VIEs on an ongoing basis to determine if we continue to be the primary beneficiary. The combined assets and liabilities of the affiliated dental practices of PDG, TDS and OSM which are included within the consolidated financial statements of Park Dental Partners, Inc. are as follows:
|
(in thousands)
|
|
|
At December 31,
2024
|
|
|
At December 31,
2023
|
|
|
TOTAL ASSETS
|
|
|
|
$ |
37,581 |
|
|
|
|
$ |
36,384 |
|
|
|
TOTAL LIABILITIES
|
|
|
|
$ |
29,601 |
|
|
|
|
$ |
31,072 |
|
|
Due to the nature of the minority ownership in the affiliated dental practices, whereby a single designated doctor holds one share of the affiliate entity, but has no right to receive any economic benefit, or interest in the profits generated by the affiliated dental practices, we have not assigned any value to the non-controlling interests in the consolidated operations.
17. RELATED-PARTY TRANSACTIONS
We have lease agreements with entities that are minority owned by certain shareholders, members, and officers of the Company. Total lease liabilities for these properties was $22,799 at December 31, 2024, and $23,888 at December 31, 2023. As described in Note 9 — Long-term debt, we have outstanding subordinated Notes Payable. A portion of these subordinated Notes are due to certain related parties, the principal balance of which is $2,012, due at maturity and interest due quarterly through October 1, 2037.
18. SUBSEQUENT EVENTS
We have evaluated events occurring subsequent to the date of the consolidated financial statements through May 21, 2025, and July 28, 2025 as to the effects of the revision discussed in Note 1, and September 3, 2025 as to the effects of the share conversion discussed in Note 1, which is the date the consolidated financial statements were issued.
No events have occurred that would require adjustments to disclosures in the consolidated financial statements.
******
Shares
Underwriter Warrants to Purchase Shares
Shares Underlying the Underwriter Warrants
Common Stock
PRELIMINARY PROSPECTUS
Northland Capital MarketsCraig-Hallum
The date of this prospectus is , 2025
Through and including , 2025 (25 days after the date of this prospectus), all dealers that buy, sell or trade our Common Stock, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers’ obligation to deliver a prospectus when acting as an underwriter and with respect to their unsold allotments or subscriptions.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than the underwriting discount, payable by us in connection with the sale of Common Stock being registered. All amounts are estimated except the SEC registration fee and the Financial Industry Regulatory Authority, or FINRA, filing fee.
| |
SEC registration fee
|
|
|
|
$ |
*
|
|
|
| |
FINRA filing fee
|
|
|
|
|
*
|
|
|
| |
Nasdaq listing fee
|
|
|
|
|
*
|
|
|
| |
Printing and engraving expenses
|
|
|
|
|
*
|
|
|
| |
Legal fees and expenses
|
|
|
|
|
*
|
|
|
| |
Accounting fees and expenses
|
|
|
|
|
*
|
|
|
| |
Blue Sky fees and expenses (including legal fees)
|
|
|
|
|
*
|
|
|
| |
Transfer agent and registrar fees and expenses
|
|
|
|
|
*
|
|
|
| |
Miscellaneous
|
|
|
|
|
*
|
|
|
| |
Total
|
|
|
|
$ |
*
|
|
|
*
To be filed by amendment
Item 14. Indemnification of Directors and Officers
We are subject to Minnesota Statutes Chapter 302A, the Minnesota Business Corporation Act (the “MBCA”). Section 302A.521 of the MBCA provides in substance that, unless prohibited by its articles of incorporation or bylaws, a corporation must indemnify an officer or director who is made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by such person in connection with the proceeding, if certain criteria are met. These criteria, all of which must be met by the person seeking indemnification, are (a) that such person has not been indemnified by another organization or employee benefit plan for the same judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding with respect to the same acts or omissions; (b) that such person must have acted in good faith; (c) that no improper personal benefit was obtained by such person and such person satisfied certain statutory conflicts of interest provisions, if applicable; (d) that in the case of a criminal proceeding, such person had no reasonable cause to believe that the conduct was unlawful; and (e) that, in the case of acts or omissions occurring in such person’s performance in an official capacity, such person must have acted in a manner such person reasonably believed was in the best interests of the corporation or, in certain limited circumstances, not opposed to the best interests of the corporation.
In addition, Section 302A.521, subd. 3 requires us, upon written request, to pay reasonable expenses in advance of final disposition in certain instances. A decision as to required indemnification is made by a majority of the disinterested board of directors present at a meeting at which a disinterested quorum is present, or by a designated committee of disinterested directors, by special legal counsel, by the disinterested shareholders, or by a court.
Our amended and restated articles of incorporation provide that we will indemnify and advance expenses to each of our directors and officers to the fullest extent permitted by the MBCA as the same may be amended (except that in the case of an amendment, only to the extent that the amendment permits us to provide broader indemnification rights than the MBCA permitted us to provide prior to such the amendment) against any and all expenses, liabilities and losses (including attorneys’ fees, judgments, fines, ERISA excise taxes, penalties and amounts paid in settlement) actually and reasonably incurred by the director
or officer or on the director’s or officer’s behalf in connection with any threatened, pending or completed proceeding to which he or she is or is threatened to be made a party because he or she is or was serving as one of our directors and/or officers, or at our request as a director or officer of another corporation, partnership, joint venture, trust, nonprofit entity or other enterprise (including service with respect to an employee benefit plan). Our articles of incorporation further provide that our board of directors may, in its sole and absolute discretion, indemnify and advance expenses to employees and agents.
In addition, our bylaws provide that the right of each of our directors and officers to indemnification and advancement of expenses shall be a contract right and shall not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of the articles of incorporation or bylaws, agreement, vote of shareholders or disinterested directors or otherwise. Furthermore, our bylaws authorize us to provide insurance for our directors, officers, employees and agents and any person who is serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, nonprofit entity or other enterprise (including service with respect to an employee benefit plan), against any liability, expense or loss, whether or not we would have the power to indemnify such person against such liability, expense or loss under the MBCA or the bylaws.
In connection with the sale of Common Stock being registered hereby, we intend to enter into indemnification agreements with each of our directors and our executive officers. These agreements will provide that we will indemnify each of our directors and such officers to the fullest extent permitted by law and the articles and bylaws.
We also maintain a general liability insurance policy which covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
In any underwriting agreement we enter into in connection with the sale of Common Stock being registered hereby, the underwriter will agree to indemnify, under certain conditions, us, our directors, our officers and persons who control us within the meaning of the Securities Act of 1933, as amended, against certain liabilities.
Item 15. Recent Sales of Unregistered Securities.
During the past three years, we have issued securities in the following transactions, each of which was exempt from the registration requirements of Securities Act of 1933, as amended, or the Securities Act. All of the below-referenced securities issued pursuant to the exemption from registration under Section 4(2) of the Securities Act are deemed restricted securities for the purposes of the Securities Act. In addition, the issuances in 2024 were also exempt pursuant to Rule 701.
In May 2023, shareholders voted to approve the creation of a new dental resource organization, a new type of DSO, owned by the shareholders. This reorganization event established Park Dental Partners, Inc., a Minnesota corporation and the official transition to the current legal and operating structure on October 1, 2023. Certain shareholders ownership interests in the affiliated dental practices were converted into common stock in Park Dental Partners, Inc. via a contribution and exchange agreement, whereby Park Dental Partners, Inc. received non-certain assets and liabilities in exchange for the transfer of common stock. In connection with the reorganization, a total of 5,000,000 shares of unrestricted and restricted common stock were issued in 2023.
From January 1, 2024 through December 31, 2024, a total of 275,176 and 109,849 shares of Common Stock were issued pursuant to our 2023 Restricted Stock Plan and 2023 Equity Incentive Plan, respectively. All of such shares grants were of restricted Common Stock other than 77,688 shares.
There were no underwriters employed in connection with any of the transactions described in this Item 15.
Item 16. Exhibits.
(a) See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this registration statement on Form S-1, which Exhibit Index is incorporated herein by reference.
(b) No financial statement schedules are provided because the information called for is not required or is shown either in the financial statements or the notes thereto.
Item 17. Undertakings.
(1) The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
(2) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(3) The undersigned registrant hereby undertakes that:
(a)
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(b)
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
ITEM 16. EXHIBITS
| |
Exhibit
Number
|
|
|
Description of Document
|
|
| |
1.1
|
|
|
Form of Underwriting Agreement*
|
|
| |
3.1
|
|
|
Third Amended and Restated Articles of Incorporation of the Company effective December 4, 2024
|
|
| |
3.2
|
|
|
Fourth Amended and Restated Articles of Incorporation of the Company
|
|
| |
3.3
|
|
|
Bylaws of the Company dated October 31, 2023
|
|
| |
3.4
|
|
|
Amendment No. 1 to Bylaws of the Company dated December 4, 2024
|
|
| |
4.1
|
|
|
Form of Common Stock Certificate of the Company*
|
|
| |
5.1
|
|
|
Opinion of Winthrop & Weinstine, P.A.*
|
|
| |
10.1
|
|
|
Amended and Restated Credit Agreement by and among the Company, PDG, P.A., Dental Specialists of Minnesota, PLLC, Orthodontic Specialists of Minnesota, PLLC, The Facial Plan Center, PLLC, and PDP MN, LLC, as Borrowers, and U.S. Bank National Association as Lender dated March 27, 2024
|
|
| |
10.2
|
|
|
Amended and Restated Security Agreement by and among Company, PDG, P.A., Dental Specialists of Minnesota, PLLC, Orthodontic Specialists of Minnesota, PLLC, The Facial Plan Center, PLLC, and PDP MN, LLC, as Debtors, and U.S. Bank National Association as the Secured Party dated March 27, 2024
|
|
| |
10.3
|
|
|
Second Amended and Restated Revolving Note by and among Company, PDG, P.A., Dental Specialists of Minnesota, PLLC, Orthodontic Specialists of Minnesota, PLLC, The Facial Plan Center, PLLC, and PDP MN, LLC, as Borrowers, and U.S. Bank National Association as Lender dated March 27, 2024
|
|
| |
10.4
|
|
|
Term Note by and among Company, PDG, P.A., Dental Specialists of Minnesota, PLLC, Orthodontic Specialists of Minnesota, PLLC, The Facial Plan Center, PLLC, and PDP MN, LLC, as Borrowers, and U.S. Bank National Association as Lender dated March 27, 2024
|
|
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10.5
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Senior Secured Note Purchase Agreement by and among PDG, P.A., Nick Swenson and certain other parties dated September 26, 2007
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10.6
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Security Agreement between PDG, P.A., Nick Swenson and certain other parties dated October 12, 2007
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10.7
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First Amendment to Senior Secured Note Purchase Agreement by and between PDG, P.A. and Nick Swenson dated February 20, 2009
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10.8
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Subordination Agreement by and among PDG, P.A., Nick Swenson and U.S. Bank National Association dated March 16, 2015
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10.9
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Amendment No. 2 to Senior Secured Note Purchase Agreement by and among the Company, PDG, P.A. and PDG 2007 LLC dated March 26, 2024
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10.10
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Guaranty by the Company in favor of PDG 2007 LLC dated March 26, 2024
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10.11
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Administrative Resources Agreement by and among the Company, Dental Specialists of Minnesota, PLLC, and Alan Law, D.D.S., Ph.D. dated October 1, 2023ŧ
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10.12
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Administrative Resources Agreement by and among the Company, PDG, P.A., and Christopher Steele, D.D.S. dated October 1, 2023ŧ
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10.13
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Administrative Resources Agreement by and among the Company, Orthodontic Specialists of Minnesota, PLLC, and Alan Law, D.D.S., Ph.D. dated October 1, 2023ŧ
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10.14
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Park Dental Partners, Inc. 2023 Restricted Stock Plan#
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10.15
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Form of Restricted Stock Agreement#
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10.16
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Park Dental Partners, Inc. 2023 Equity Incentive Plan#
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10.17
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Park Dental Partners, Inc. Employee Stock Purchase Plan#
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Exhibit
Number
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Description of Document
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10.18
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Employment Agreement, effective as of January 1, 2024, by and between Park Dental Partners, Inc. and Peter G. Swenson#
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10.19
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Employment Agreement, effective as of January 1, 2024, by and between Park Dental Partners, Inc. and Christopher J. Bernander#
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10.20
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Employment Agreement, effective as of January 1, 2011, by and between Dental Specialists of Minnesota, PLLC and Dr. Alan Law
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10.21
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Employment Agreement, effective as of January 1, 2008, by and between PDG, P.A. and Dr. Christopher Steele
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10.22
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Form of Director Indemnification Agreement
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14.1
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21.1
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23.1
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23.2
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Consent of Winthrop & Weinstine, P.A. (included in Exhibit 5.1 to this Registration Statement)*
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24.1
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107
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Filing Fee Table
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*
To be filed by amendment
#
Management contract or compensatory arrangement
ŧ
Certain portions of this document that constitute confidential information have been redacted in accordance with Regulation S-K, Item 601(b)(10)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Minneapolis, State of Minnesota on September 3, 2025.
PARK DENTAL PARTNERS, INC.
By:
/s/ Christopher J. Bernander
Name:
Christopher J. Bernander
Title:
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Peter G. Swenson and Christopher J. Bernander and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including, without limitation, post-effective amendments) to this registration statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their, his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons on behalf of the registrant in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Peter G. Swenson
Peter G. Swenson
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President, Chief Executive Officer and
Chairman
(Principal Executive Officer)
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September 3, 2025
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/s/ Christopher J. Bernander
Christopher J. Bernander
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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September 3, 2025
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/s/ Todd Gerlach
Dr. Todd Gerlach
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Director
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September 3, 2025
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/s/ Alan Law
Dr. Alan Law
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Director
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September 3, 2025
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/s/ Christopher Steele
Dr. Christopher Steele
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Director
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September 3, 2025
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/s/ Philip I. Smith
Philip I. Smith
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Director
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September 3, 2025
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/s/ Christopher C. Smith
Christopher C. Smith
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Director
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September 3, 2025
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/s/ Anna M. Schaefer
Anna M. Schaefer
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Director
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September 3, 2025
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Exhibit 3.1
THIRD
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PARK DENTAL PARTNERS, INC.
December 4, 2024
Park Dental Partners, Inc.,
a corporation organized and existing under the laws of the State of Minnesota (the “Corporation”), DOES HEREBY CERTIFY
AS FOLLOWS:
1. The
articles of incorporation of the Corporation were initially filed with the Secretary of State of the State of Minnesota on June 20,
2023, and were subsequently amended and restated on October 1, 2023 (collectively, the “Articles”).
2. These
Third Amended and Restated Articles of Incorporation (the “Restated Articles”), which restate and amend the provisions
of the Articles, as previously amended, were duly adopted in accordance with the Minnesota Business Corporation Act, Chapter 302A of the
Minnesota Statutes, as now enacted and hereafter amended (the “Minnesota Business Corporation Act”), and pursuant to
filing with the Secretary of State of the State of Minnesota, shall be effective on December 4, 2024 (the “Effective Date”).
3. The
text of the Articles, as previously amended, is hereby restated and amended in its entirety to read as follows:
ARTICLE I
Section 1.1. Name.
The name of the Corporation is Park Dental Partners, Inc. (the “Corporation”).
ARTICLE II
Section 2.1. Address.
The address of the Corporation’s registered office in the State of Minnesota is 2200 County Road C West, Suite 2210, Roseville,
MN 55113.
ARTICLE III
Section 3.1. Purpose.
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under
the Minnesota Business Corporation Act.
Section 3.2. Duration.
The duration of the Corporation shall be perpetual.
ARTICLE IV
Section 4.1. Capitalization.
(A) The total number of shares of all classes of capital
stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 105,000,000 shares, consisting of (a) 100,000,000
shares of common stock (the “Common Stock”) that are divided further into the following series: (i) 80,000,000
shares of Series A-1 Common Stock (the “Series A-1 Common Stock”), (ii) 18,000,000 shares of Series A-2
Common Stock (the “Series A-2 Common Stock”), and (iii) 2,000,000 shares of Series A-3 Common Stock
(the “Series A-3 Common Stock”); and (b) 5,000,000 shares of preferred stock (the “Preferred Stock”).
As of the Effective Date, the Series A-1 Common Stock will represent 86% of the value of the Corporation, the Series A-2 Common
Stock will represent 14% of the value of the Corporation, and the Series A-3 Common Stock and Preferred Stock will represent no value
of the Corporation. For purposes of clarity, Series A-1 Common Stock, Series A-2 Common Stock and Series A-3 Common Stock
shall collectively be referred to as “Common Stock.” Notwithstanding anything to the contrary in this Section 4.1(A),
upon the issuance of Series A-3 Common Stock, the value of the Corporation represented by the Series A-1 Common Stock and Series A-2
Common Stock will be ratably diluted.
(B) The number of authorized shares of Common Stock or Preferred
Stock may be increased or decreased (but not below the number of shares of such class or series then outstanding) by the affirmative vote
of the holders of a majority of the voting power of all of the outstanding shares of capital stock of the Corporation entitled to vote
thereon, without a separate vote of the holders of any class of Common Stock or Preferred Stock, or any separate series votes of any series
thereof, unless a vote of any such holders is required pursuant to these Restated Articles or the terms of any Preferred Stock Designation
(as defined below).
Section 4.2. Preferred
Stock.
(A) The board of directors of the Corporation (the “Board”)
is hereby expressly authorized to provide, out of the unissued shares of the Preferred Stock, one or more series of Preferred Stock, and
to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations,
powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications,
limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance
of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to
the Minnesota Business Corporation Act, and the Board is hereby expressly vested with the authority to the full extent provided by law,
now or hereafter, to adopt any such resolution or resolutions. The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
(B) Except as otherwise required by applicable law, holders
of a series of Preferred Stock, as such, shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by
these Restated Articles (including any certificate of designations relating to such series).
Section 4.3. Common
Stock.
(A) Voting Rights.
(1) Except
as otherwise required by law or these Restated Articles (including any Preferred Stock Designation), the holders of the Common Stock shall
exclusively possess all voting power with respect to the Corporation.
(2) Except
as otherwise provided in these Restated Articles or as required by applicable law, each holder of Common Stock, as such, shall be entitled
to one (1) vote for each share of Common Stock held by such holder as of the applicable record date, on all matters on which shareholders
generally are entitled to vote; provided, however, that as of the Effective Date, the holders of Series A-1 Common Stock shall be
entitled to the number of votes for each share of Series A-1 Common Stock such that, in the aggregate the holders of Series A-1
Common Stock hold 86% of the combined voting power of Series A-1 Common Stock and Series A-2 Common Stock.
(3) Except
as otherwise required by law or these Restated Articles (including any Preferred Stock Designation), at any annual or special meeting
of the shareholders of the Corporation, holders of Common Stock, voting together as a single class, shall have the exclusive right to
vote for the election of directors and on all other matters properly submitted to a vote of the shareholders. Notwithstanding the foregoing,
except as otherwise required by law or these Restated Articles (including any Preferred Stock Designation), holders of shares of any series
of Common Stock shall not be entitled to vote on any amendment to these Restated Articles (including any amendment to any Preferred Stock
Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series
of Preferred Stock are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant
to these Restated Articles (including any Preferred Stock Designation) or the Minnesota Business Corporation Act.
(B) Dividends and Distributions. Subject to applicable
law and the rights, if any, of the holders of any outstanding series of Preferred Stock having a preference over or the right to participate
with the Common Stock with respect to the payment of dividends and other distributions in cash, stock of any corporation or property of
the Corporation, (1) the holders of Series A-1 Common Stock shall be entitled to receive ratably, taken together as a single
series, in proportion to the number of shares of Series A-1 Common Stock held by each such shareholder 86% of such dividends and
other distributions as may from time to time be declared by the Board in its discretion out of the assets of the Corporation that are
by law available therefor at such times and in such amounts as the Board in its discretion shall determine, and (2) the holders of
Series A-2 Common Stock shall be entitled to receive ratably, taken together as a single series, in proportion to the number of shares
of Series A-2 Common Stock held by each such shareholder 14% of such dividends and other distributions as may from time to time be
declared by the Board in its discretion out of the assets of the Corporation that are by law available therefor at such times and in such
amounts as the Board in its discretion shall determine. Notwithstanding anything to the contrary in this Section 4.3(B), upon
the issuance of Series A-3 Common Stock, the rights of the holders of Series A-1 Common Stock, in the aggregate, and the rights
of Series A-2 Common Stock, in the aggregate, to such dividends and distributions will be ratably diluted.
(C) Liquidation, Dissolution or Winding Up. In the
event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after payment or provision
for payment of the debts and other liabilities of the Corporation and of the preferential and other amounts, if any, to which the holders
of Preferred Stock having a preference over the Common Stock as to distributions upon dissolution, liquidation or winding up shall be
entitled, (1) the holders of all outstanding shares of Series A-1 Common Stock shall be entitled to receive 86% of the remaining
assets of the Corporation available for distribution ratably in proportion to the number of shares held by each such shareholder, and
(2) the holders of all outstanding shares of Series A-2 Common Stock shall be entitled to receive 14% of the remaining assets
of the Corporation available for distribution ratably in proportion to the number of shares held by each such shareholder. Notwithstanding
anything to the contrary in this Section 4.3(C), upon the issuance of Series A-3 Common Stock, the rights of the holders
of Series A-1 Common Stock, in the aggregate, and the rights of Series A-3 Common Stock, in the aggregate, to such distributions
upon dissolution, dissolution or winding up will be ratably diluted.
(D) Matters Requiring Supermajority Approval. The
Corporation shall not, by amendment, merger, consolidation or otherwise, without first obtaining the affirmative vote (or written consent,
subject to Section 7.1, and the Minnesota Business Corporation Act) of the holders of at least 66-2/3% of the total voting
power of all the then outstanding shares of Common Stock, voting together as a single class, amend, alter, repeal or waive any provision
of this Section 4.3. The Corporation also shall not take any of the following actions except with the affirmative vote (or
written consent, subject to Section 7.1, and the Minnesota Business Corporation Act) of the holders of at least 66-2/3% of
the total voting power of all the then outstanding shares of Common Stock, voting together as a single class:
(1) increase
the total number of shares of capital stock which the Corporation is authorized to issue;
(2) effect
any reduction, by amendment of these Restated Articles, retirement or exchange or otherwise, in the number of outstanding shares of Common
Stock in any manner;
(3) merge
or consolidate with or into any other company, or permit any other company to merge or consolidate with or into the Corporation (except,
in the case of a merger solely to change the state of incorporation of the Corporation);
(4) sell,
lease or exchange all or substantially all of the property and assets of the Corporation;
(5) transfer
any assets to another company and in connection therewith distribute stock or other securities of such other company to the holders of
stock or other securities of this Corporation;
(6) make
any decision to move the executive offices and/or headquarters of the Corporation outside of the State of Minnesota; or
(7) voluntarily
dissolve or liquidate the Corporation.
(E) Ranking. With respect to dividends, distributions,
and the payment of proceeds from any dissolution, liquidation or winding up of the Corporation, (1) the holders of Series A-1
Common Stock in the aggregate shall hold 86% of the right to such amounts, and among themselves such holders of Series A-1 Common
Stock shall have the same rights and privileges and rank, share ratably and be identical in all respects as to all matters, and (2) the
holders of Series A-2 Common Stock in the aggregate shall hold 14% of the right to such amounts, and among themselves such holders
of Series A-2 Common Stock shall have the same rights and privileges and rank, share ratably and be identical in all respects as
to all matters.
(F) No Preemptive Rights. No holder of capital stock
of the Corporation shall have any preferential, pre-emptive, or other rights of subscription to any shares of any class or series of stock
of the Corporation allotted or sold or to be allotted or sold and now or hereafter authorized, or to any obligations or securities convertible
into any class or series of stock of the Corporation, nor any right of subscription to any part thereof.
(G) No Cumulative Voting. No holder of capital stock
of the Corporation shall be entitled to exercise any right of cumulative voting.
(H) Conversion or Exchange of Common Stock. Common
Stock shall not be convertible into or exchangeable for any other class or series of capital stock of the Corporation.
ARTICLE V
Section 5.1. Bylaws.
In furtherance and not in limitation of the powers conferred by the Minnesota Business Corporation Act, the Board is expressly authorized
to make, amend, alter, change, add to or repeal the bylaws of the Corporation (as the same may be amended from time to time, the “Bylaws”)
without the assent or vote of the shareholders in any manner not inconsistent with the laws of the State of Minnesota, these Restated
Articles, or the applicable provision of the Bylaws requiring the requisite vote of the shareholders in order to amend, alter, or repeal
certain provisions of the Bylaws. The Board may adopt or amend a Bylaw to increase the number of directors.
ARTICLE VI
Section 6.1. Board
of Directors.
(A) Director Powers. Except as otherwise provided
in these Restated Articles or the Minnesota Business Corporation Act, the business and affairs of the Corporation shall be managed by
or under the direction of the Board.
(B) Number of Directors. The total number of directors
constituting the whole Board shall, (a) as of the date of these Restated Articles, initially be five (5) and (b) thereafter,
shall be fixed exclusively by one or more resolutions adopted from time to time by a majority of the Board.
(C) Classified Board. The directors (other than those
directors elected by the holders of any series of Preferred Stock, voting separately as a series or together with one or more other such
series, as the case may be) shall be divided into three classes designated Class I, Class II and Class III. Each class
shall consist, as nearly as possible, of one-third of the total number of such directors. Class I directors shall initially serve
for a term expiring at the first annual meeting of shareholders following the Effective Date, Class II directors shall initially
serve for a term expiring at the second annual meeting of shareholders following the Effective Date, and Class III directors shall
initially serve for a term expiring at the third annual meeting of shareholders following the Effective Date. At each annual meeting of
shareholders following the Effective Date, successors to the class of directors whose term expires at that annual meeting of shareholders
shall be elected for a term expiring at the third succeeding annual meeting of shareholders. If the number of such directors is changed,
any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal
as possible, and any such additional director of any class elected to fill a newly created directorship resulting from an increase in
such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case shall a decrease in
the number of directors remove, or shorten the term of, any incumbent director. The Board is authorized to assign members of the Board
already in office to their respective class.
(D) Board Vacancies and Newly-Created Directorships.
Subject to the rights granted to the holders of any one or more series of Preferred Stock then outstanding, any newly-created directorship
on the Board that results from an increase in the number of directors and any vacancy occurring in the Board (whether by death, resignation,
retirement, disqualification, removal or other cause) shall be filled by the affirmative vote of a majority of the directors then in office,
even if less than a quorum, or by a sole remaining director (and not by the shareholders), except in the case of a vacancy occurring as
a result of death, resignation, retirement, disqualification, or removal of a director that is a “DDS Appointee” (as that
term is defined in the Bylaws), in which case that vacancy shall be filled in accordance with the applicable provision of the Bylaws.
Any director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which
such director shall have been chosen and until his or her successor shall be elected and qualified, or until his or her earlier death,
resignation, retirement, disqualification or removal.
(E) Term and Removal. Each director shall hold office
until the annual meeting of shareholders at which his or her term expires and until his or her successor shall be duly elected and qualified,
or his or her earlier death, resignation, retirement, disqualification or removal from office. Any director may resign at any time upon
notice to the Corporation given in writing or by any electronic transmission permitted by the Bylaws. Any or all of the directors (other
than a director that is a “DDS Appointee” (as that term is defined in the Bylaws), and directors elected by the holders of
any series of Preferred Stock of the Corporation, voting separately as a series or together with one or more other such series, as the
case may be) may be removed only for cause and only upon the affirmative vote of the holders of at least 66-2/3% of the total voting power
of all the then outstanding shares of Common Stock, voting together as a single class. In case the Board or any one or more directors
should be so removed, new directors may be elected pursuant to Section 6.1(C) and Section 6.1(D). Removal
of a director that is a “DDS Appointee” (as that term is defined in the Bylaws) shall be in accordance with the applicable
provision of the Bylaws.
(F) Preferred Stock Directors. Whenever the holders
of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately
as a class with one or more such other series, to elect director(s) at an annual or special meeting of shareholders, the election,
term of office, removal and other features of such directorships shall be governed by the terms of these Restated Articles (including
any certificate of designations relating to any series of Preferred Stock) applicable thereto. Notwithstanding Section 6.1(B),
the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed
pursuant to Section 6.1(B) hereof, and the total number of directors constituting the whole Board shall be automatically
adjusted accordingly.
(G) Vote by Ballot. Directors of the Corporation
need not be elected by written ballot unless the Bylaws shall so provide.
ARTICLE VII
Section 7.1. Consent
of Shareholders in Lieu of Meeting. Any action required or permitted to be taken by the holders of stock of the Corporation must be
effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing or by electric transmission
by such holders unless such writing or electronic transmission is signed by the holders of outstanding shares of the relevant class or
series having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted, and is delivered to the Corporation by delivery to its registered office in
the State of Minnesota, or to an officer or agent of the Corporation having custody of the books in which proceedings of meetings of shareholders
are recorded; provided, however, that in the event that the Corporation becomes a “publicly held corporation” as defined and
used in the Minnesota Business Corporation Act, then such action may not be effected by any consent in writing or by electric transmission
unless such writing or electronic transmission is signed by all of the holders of stock entitled to vote on that action.
Section 7.2. Meetings
of Shareholders. Except as otherwise required by law and subject to the rights of the holders of any series of Preferred Stock, special
meetings of the shareholders of the Corporation may be called only by or at the direction of the Board, the chairman of the Board or the
chief executive officer or president of the Corporation or as otherwise provided in the Bylaws. Special meetings of shareholders may also
be called by one or more shareholders holding at least a majority of the issued and outstanding capital stock entitled to vote; and, subject
to the foregoing sentence, special meetings of shareholders may not be called by any other person.
Section 7.3. Consent
of the Board in Lieu of Meeting. Any action required or permitted to be taken by the Board may be taken by written action signed,
or consented to by authenticated electronic communication, by the number of directors that would be required to take the same action at
a meeting of the Board at which all directors are present.
ARTICLE VIII
Section 8.1. Limited
Liability of Directors. To the fullest extent permitted by applicable law, no director of the Corporation will have any personal liability
to the Corporation or its shareholders for monetary damages for any breach of fiduciary duty as a director. If the Minnesota Business
Corporation Act is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Minnesota Business Corporation
Act, as so amended.
Section 8.2. Change
in Rights. Neither the amendment nor the repeal of this Article VIII shall eliminate, reduce or otherwise adversely affect
any limitation on the personal liability of a director of the Corporation existing prior to such amendment or repeal.
Section 8.3. Director
and Officer Indemnification and Advancement of Expenses. The Corporation, to the fullest extent permitted by law, shall indemnify
and advance expenses to any person made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he or she is or was a director or officer of the Corporation or any predecessor of the Corporation,
or, while serving as a director or officer of the Corporation, serves or served at any other enterprise as a director or officer at the
request of the Corporation or any predecessor to the Corporation.
Section 8.4. Employee
and Agent Indemnification and Advancement of Expenses. The Corporation, to the fullest extent permitted by law, may indemnify and
advance expenses to any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he or she is or was an employee or agent of the Corporation or any predecessor of the Corporation,
or serves or served at any other enterprise as an employee or agent at the request of the Corporation or any predecessor to the Corporation.
ARTICLE IX
Section 9.1. Severability.
If any provision of these Restated Articles shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any
reason whatsoever, the validity, legality and enforceability of such provision in any other circumstance and of the remaining provisions
of these Restated Articles (including, without limitation, each portion of any paragraph of these Restated Articles containing any such
provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby.
ARTICLE X
Section 10.1. Amendments.
Except as expressly provided elsewhere in these Restated Articles (including, but not limited to, Section 4.3(A)(D), and any
certificate of designations relating to any series of Preferred Stock), in addition to any vote required by applicable law, these Restated
Articles may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may
be adopted, only by the affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares
of Common Stock, voting together as a single class.
[Signature page follows]
IN WITNESS WHEREOF,
the Corporation has caused these Third Amended and Restated Articles of Incorporation to be signed by its duly authorized officer this
4th day of December, 2024.
| |
By: |
|
| |
Name: |
Peter Swenson |
| |
Title: |
Authorized Person |
[Signature
Page to Third Amended and Restated Articles of Incorporation of Park Dental Partners, Inc.]
Exhibit 3.2
FOURTH
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PARK DENTAL PARTNERS, INC.
August 20, 2025
Park Dental Partners, Inc.,
a corporation organized and existing under the laws of the State of Minnesota (the “Corporation”), DOES HEREBY CERTIFY
AS FOLLOWS:
1. The
articles of incorporation of the Corporation were initially filed with the Secretary of State of the State of Minnesota on June 20,
2023, and were subsequently amended and restated on October 1, 2023 and December 4, 2024 (collectively, the “Articles”).
2. These
Fourth Amended and Restated Articles of Incorporation (the “Restated Articles”), which restate and amend the provisions
of the Articles, as previously amended, were duly adopted in accordance with the Minnesota Business Corporation Act, Chapter 302A of the
Minnesota Statutes, as now enacted and hereafter amended (the “Minnesota Business Corporation Act”), and pursuant to
filing with the Secretary of State of the State of Minnesota, shall be effective on August 20, 2025 (the “Effective Date”).
3. The
text of the Articles, as previously amended, is hereby restated and amended in its entirety to read as follows:
ARTICLE I
Section 1.1. Name.
The name of the Corporation is Park Dental Partners, Inc. (the “Corporation”).
ARTICLE II
Section 2.1. Address.
The address of the Corporation’s registered office in the State of Minnesota is 2200 County Road C West, Suite 2210, Roseville,
MN 55113.
ARTICLE III
Section 3.1. Purpose.
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under
the Minnesota Business Corporation Act.
Section 3.2. Duration.
The duration of the Corporation shall be perpetual.
ARTICLE IV
Section 4.1. Capitalization.
(A) The total number of shares of all classes of capital
stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 105,000,000 shares, consisting of 100,000,000
shares of common stock (the “Common Stock”); and (b) 5,000,000 shares of preferred stock (the “Preferred
Stock”).
(B) The number of authorized shares of Common Stock or Preferred
Stock may be increased or decreased (but not below the number of shares of such class or series then outstanding) by the affirmative vote
of the holders of a majority of the voting power of all of the outstanding shares of capital stock of the Corporation entitled to vote
thereon, without a separate vote of the holders of any class of Common Stock or Preferred Stock, or any separate series votes of any series
thereof, unless a vote of any such holders is required pursuant to these Restated Articles or the terms of any Preferred Stock Designation
(as defined below).
Section 4.2. Preferred
Stock.
(A) The board of directors of the Corporation (the “Board”)
is hereby expressly authorized to provide, out of the unissued shares of the Preferred Stock, one or more series of Preferred Stock, and
to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations,
powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications,
limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance
of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to
the Minnesota Business Corporation Act, and the Board is hereby expressly vested with the authority to the full extent provided by law,
now or hereafter, to adopt any such resolution or resolutions. The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
(B) Except as otherwise required by applicable law, holders
of a series of Preferred Stock, as such, shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by
these Restated Articles (including any certificate of designations relating to such series).
Section 4.3. Common
Stock.
(A) Voting Rights.
(1) Except
as otherwise required by law or these Restated Articles (including any Preferred Stock Designation), the holders of the Common Stock shall
exclusively possess all voting power with respect to the Corporation.
(2) Except
as otherwise provided in these Restated Articles or as required by applicable law, each holder of Common Stock, as such, shall be entitled
to one (1) vote for each share of Common Stock held by such holder as of the applicable record date, on all matters on which shareholders
generally are entitled to vote.
(3) Except
as otherwise required by law or these Restated Articles (including any Preferred Stock Designation), at any annual or special meeting
of the shareholders of the Corporation, holders of Common Stock, voting together as a single class, shall have the exclusive right to
vote for the election of directors and on all other matters properly submitted to a vote of the shareholders. Notwithstanding the foregoing,
except as otherwise required by law or these Restated Articles (including any Preferred Stock Designation), holders of shares of any series
of Common Stock shall not be entitled to vote on any amendment to these Restated Articles (including any amendment to any Preferred Stock
Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series
of Preferred Stock are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant
to these Restated Articles (including any Preferred Stock Designation) or the Minnesota Business Corporation Act.
(B) Dividends and Distributions. Subject to applicable
law and the rights, if any, of the holders of any outstanding series of Preferred Stock having a preference over or the right to participate
with the Common Stock with respect to the payment of dividends and other distributions in cash, stock of any corporation or property of
the Corporation, the holders of Common Stock shall be entitled to receive ratably, in proportion to the number of shares of Common Stock
held by each such shareholder, such dividends and other distributions as may from time to time be declared by the Board in its discretion
out of the assets of the Corporation that are by law available therefor at such times and in such amounts as the Board in its discretion
shall determine.
(C) Liquidation, Dissolution or Winding Up. In the
event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after payment or provision
for payment of the debts and other liabilities of the Corporation and of the preferential and other amounts, if any, to which the holders
of Preferred Stock having a preference over the Common Stock as to distributions upon dissolution, liquidation or winding up shall be
entitled, the holders of all outstanding shares of Common Stock shall be entitled to receive the remaining assets of the Corporation available
for distribution ratably in proportion to the number of shares held by each such shareholder.
(D) Matters Requiring Supermajority Approval. The
Corporation shall not, by amendment, merger, consolidation or otherwise, without first obtaining the affirmative vote (or written consent,
subject to Section 7.1, and the Minnesota Business Corporation Act) of the holders of at least 66-2/3% of the total voting
power of all the then outstanding shares of Common Stock, voting together as a single class, amend, alter, repeal or waive any provision
of this Section 4.3. The Corporation also shall not take any of the following actions except with the affirmative vote (or
written consent, subject to Section 7.1, and the Minnesota Business Corporation Act) of the holders of at least 66-2/3% of
the total voting power of all the then outstanding shares of Common Stock, voting together as a single class:
(1) increase
the total number of shares of capital stock which the Corporation is authorized to issue;
(2) effect
any reduction, by amendment of these Restated Articles, retirement or exchange or otherwise, in the number of outstanding shares of Common
Stock in any manner;
(3) merge
or consolidate with or into any other company, or permit any other company to merge or consolidate with or into the Corporation (except,
in the case of a merger solely to change the state of incorporation of the Corporation);
(4) sell,
lease or exchange all or substantially all of the property and assets of the Corporation;
(5) transfer
any assets to another company and in connection therewith distribute stock or other securities of such other company to the holders of
stock or other securities of this Corporation;
(6) make
any decision to move the executive offices and/or headquarters of the Corporation outside of the State of Minnesota; or
(7) voluntarily
dissolve or liquidate the Corporation.
(E) No Preemptive Rights. No holder of capital stock
of the Corporation shall have any preferential, pre-emptive, or other rights of subscription to any shares of any class or series of stock
of the Corporation allotted or sold or to be allotted or sold and now or hereafter authorized, or to any obligations or securities convertible
into any class or series of stock of the Corporation, nor any right of subscription to any part thereof.
(F) No Cumulative Voting. No holder of capital stock
of the Corporation shall be entitled to exercise any right of cumulative voting.
(G) Conversion or Exchange of Common Stock. Common
Stock shall not be convertible into or exchangeable for any other class or series of capital stock of the Corporation.
ARTICLE V
Section 5.1. Bylaws.
In furtherance and not in limitation of the powers conferred by the Minnesota Business Corporation Act, the Board is expressly authorized
to make, amend, alter, change, add to or repeal the bylaws of the Corporation (as the same may be amended from time to time, the “Bylaws”)
without the assent or vote of the shareholders in any manner not inconsistent with the laws of the State of Minnesota, these Restated
Articles, or the applicable provision of the Bylaws requiring the requisite vote of the shareholders in order to amend, alter, or repeal
certain provisions of the Bylaws. The Board may adopt or amend a Bylaw to increase the number of directors.
ARTICLE VI
Section 6.1. Board
of Directors.
(A) Director Powers. Except as otherwise provided
in these Restated Articles or the Minnesota Business Corporation Act, the business and affairs of the Corporation shall be managed by
or under the direction of the Board.
(B) Number of Directors. The total number of directors
constituting the whole Board shall, (a) as of the date of these Restated Articles, initially be seven (7) and (b) thereafter,
shall be fixed exclusively by one or more resolutions adopted from time to time by a majority of the Board.
(C) Classified Board. The directors (other than those
directors elected by the holders of any series of Preferred Stock, voting separately as a series or together with one or more other such
series, as the case may be) shall be divided into three classes designated Class I, Class II and Class III. Each class
shall consist, as nearly as possible, of one-third of the total number of such directors. Class I directors shall initially serve
for a term expiring at the third annual meeting of shareholders following the Effective Date, Class II directors shall initially
serve for a term expiring at the annual meeting of shareholders following the Effective Date, and Class III directors shall initially
serve for a term expiring at the second annual meeting of shareholders following the Effective Date. At each annual meeting of shareholders
following the Effective Date, successors to the class of directors whose term expires at that annual meeting of shareholders shall be
elected for a term expiring at the third succeeding annual meeting of shareholders. If the number of such directors is changed, any increase
or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible,
and any such additional director of any class elected to fill a newly created directorship resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that class, but in no case shall a decrease in the number of directors
remove, or shorten the term of, any incumbent director. The Board is authorized to assign members of the Board already in office to their
respective class.
(D) Board Vacancies and Newly-Created Directorships.
Subject to the rights granted to the holders of any one or more series of Preferred Stock then outstanding, any newly-created directorship
on the Board that results from an increase in the number of directors and any vacancy occurring in the Board (whether by death, resignation,
retirement, disqualification, removal or other cause) shall be filled by the affirmative vote of a majority of the directors then in office,
even if less than a quorum, or by a sole remaining director (and not by the shareholders), except in the case of a vacancy occurring as
a result of death, resignation, retirement, disqualification, or removal of a director that is a “DDS Appointee” (as that
term is defined in the Bylaws), in which case that vacancy shall be filled in accordance with the applicable provision of the Bylaws.
Any director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which
such director shall have been chosen and until his or her successor shall be elected and qualified, or until his or her earlier death,
resignation, retirement, disqualification or removal.
(E) Term and Removal. Each director shall hold office
until the annual meeting of shareholders at which his or her term expires and until his or her successor shall be duly elected and qualified,
or his or her earlier death, resignation, retirement, disqualification or removal from office. Any director may resign at any time upon
notice to the Corporation given in writing or by any electronic transmission permitted by the Bylaws. Any or all of the directors (other
than a director that is a “DDS Appointee” (as that term is defined in the Bylaws), and directors elected by the holders of
any series of Preferred Stock of the Corporation, voting separately as a series or together with one or more other such series, as the
case may be) may be removed only for cause and only upon the affirmative vote of the holders of at least 66-2/3% of the total voting power
of all the then outstanding shares of Common Stock, voting together as a single class. In case the Board or any one or more directors
should be so removed, new directors may be elected pursuant to Section 6.1(C) and Section 6.1(D). Removal
of a director that is a “DDS Appointee” (as that term is defined in the Bylaws) shall be in accordance with the applicable
provision of the Bylaws.
(F) Preferred Stock Directors. Whenever the holders
of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately
as a class with one or more such other series, to elect director(s) at an annual or special meeting of shareholders, the election,
term of office, removal and other features of such directorships shall be governed by the terms of these Restated Articles (including
any certificate of designations relating to any series of Preferred Stock) applicable thereto. Notwithstanding Section 6.1(B),
the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed
pursuant to Section 6.1(B) hereof, and the total number of directors constituting the whole Board shall be automatically
adjusted accordingly.
(G) Vote by Ballot. Directors of the Corporation
need not be elected by written ballot unless the Bylaws shall so provide.
ARTICLE VII
Section 7.1. Consent
of Shareholders in Lieu of Meeting. Any action required or permitted to be taken by the holders of stock of the Corporation must be
effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing or by electric transmission
by such holders unless such writing or electronic transmission is signed by the holders of outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon
were present and voted, and is delivered to the Corporation by delivery to its registered office in the State of Minnesota, or to an officer
or agent of the Corporation having custody of the books in which proceedings of meetings of shareholders are recorded; provided, however,
that in the event that the Corporation becomes a “publicly held corporation” as defined and used in the Minnesota Business
Corporation Act, then such action may not be effected by any consent in writing or by electric transmission unless such writing or electronic
transmission is signed by all of the holders of stock entitled to vote on that action.
Section 7.2. Meetings
of Shareholders. Except as otherwise required by law and subject to the rights of the holders of any series of Preferred Stock, special
meetings of the shareholders of the Corporation may be called only by or at the direction of the Board, the chairman of the Board or the
chief executive officer or president of the Corporation or as otherwise provided in the Bylaws. Special meetings of shareholders may also
be called by one or more shareholders holding at least a majority of the issued and outstanding capital stock entitled to vote; and, subject
to the foregoing sentence, special meetings of shareholders may not be called by any other person.
Section 7.3. Consent
of the Board in Lieu of Meeting. Any action required or permitted to be taken by the Board may be taken by written action signed,
or consented to by authenticated electronic communication, by the number of directors that would be required to take the same action at
a meeting of the Board at which all directors are present.
ARTICLE VIII
Section 8.1. Limited
Liability of Directors. To the fullest extent permitted by applicable law, no director of the Corporation will have any personal liability
to the Corporation or its shareholders for monetary damages for any breach of fiduciary duty as a director. If the Minnesota Business
Corporation Act is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Minnesota Business Corporation
Act, as so amended.
Section 8.2. Change
in Rights. Neither the amendment nor the repeal of this Article VIII shall eliminate, reduce or otherwise adversely affect
any limitation on the personal liability of a director of the Corporation existing prior to such amendment or repeal.
Section 8.3. Director
and Officer Indemnification and Advancement of Expenses. The Corporation, to the fullest extent permitted by law, shall indemnify
and advance expenses to any person made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he or she is or was a director or officer of the Corporation or any predecessor of the Corporation,
or, while serving as a director or officer of the Corporation, serves or served at any other enterprise as a director or officer at the
request of the Corporation or any predecessor to the Corporation.
Section 8.4. Employee
and Agent Indemnification and Advancement of Expenses. The Corporation, to the fullest extent permitted by law, may indemnify and
advance expenses to any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he or she is or was an employee or agent of the Corporation or any predecessor of the Corporation,
or serves or served at any other enterprise as an employee or agent at the request of the Corporation or any predecessor to the Corporation.
ARTICLE IX
Section 9.1. Severability.
If any provision of these Restated Articles shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any
reason whatsoever, the validity, legality and enforceability of such provision in any other circumstance and of the remaining provisions
of these Restated Articles (including, without limitation, each portion of any paragraph of these Restated Articles containing any such
provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby.
ARTICLE X
Section 10.1. Amendments.
Except as expressly provided elsewhere in these Restated Articles (including, but not limited to, Section 4.3(A)(D), and any
certificate of designations relating to any series of Preferred Stock), in addition to any vote required by applicable law, these Restated
Articles may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may
be adopted, only by the affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares
of Common Stock, voting together as a single class.
[Signature page follows]
IN WITNESS WHEREOF,
the Corporation has caused these Fourth Amended and Restated Articles of Incorporation to be signed by its duly authorized officer this
20th day of August, 2025.
| |
By: |
|
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Name: |
Peter Swenson |
| |
Title: |
Authorized Person |
[Signature
Page to Fourth Amended and Restated Articles of Incorporation of Park Dental Partners, Inc.]
Exhibit 3.3
BYLAWS
OF
PARK DENTAL PARTNERS, INC.
(THE “CORPORATION”)
ARTICLE I
SHAREHOLDERS MEETINGS
Section 1.1. Annual
Meetings. The annual meeting of shareholders shall be held at the principal executive office of the Corporation or at such other place,
either within or without the State of Minnesota, and time and on such date as shall be determined by the Board of Directors of the Corporation
(the “Board”) and stated in the notice of the meeting, provided that the Board may in its sole discretion determine
that the meeting shall not be held at any place, but may instead be held solely by means of “remote communication” as defined
and used in the Minnesota Business Corporation Act, as now enacted or hereafter amended (the “MBCA”), and pursuant
to Section 8.5(a). The Board may determine that shareholders not physically present in person or by proxy at an annual meeting
may, by means of remote communication, participate in such meeting held at a designated place. At each annual meeting, the shareholders
entitled to vote on such matters shall elect those directors of the Corporation to fill any term of a directorship that expires on the
date of such annual meeting and may transact any other business as may properly be brought before the meeting.
Section 1.2. Special
Meetings. Subject to the rights of the holders of any outstanding series of the preferred stock of the Corporation (“Preferred
Stock”), and to the requirements of applicable law, special meetings of shareholders, for any purpose or purposes, may be
called only by the Chairman of the Board, the Chief Executive Officer of the Corporation, or the Board pursuant to a resolution adopted
by a majority of the Board. Special meetings of shareholders may also be called by one or more shareholders holding at least a majority
of the issued and outstanding capital stock entitled to vote. Special meetings of shareholders may not be called by any other person.
Special meetings of shareholders shall be held at the principal executive office of the Corporation or at such place, either within or
without the State of Minnesota, and at such time and on such date as shall be determined by the Board and stated in the Corporation’s
notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but
may instead be held solely by means of remote communication pursuant to Section 8.5(a). The Board may determine that shareholders
not physically present in person or by proxy at a special meeting may, by means of remote communication, participate in such meeting held
at a designated place
Section 1.3. Notices.
Written notice of each shareholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication,
if any, by which shareholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining
the shareholders entitled to vote at the meeting, if such date is different from the record date for determining shareholders entitled
to notice of the meeting, shall be given in the manner permitted by Section 8.3 to each shareholder entitled to vote thereat
as of the record date for determining the shareholders entitled to notice of the meeting, by the Corporation not less than 10 nor more
than 60 days before the date of the meeting unless otherwise required by the MBCA. If said notice is for a shareholders meeting other
than an annual meeting, it shall in addition state the purpose or purposes for which the meeting is called, and the business transacted
at such meeting shall be limited to the matters so stated in the Corporation’s notice of meeting (or any supplement thereto). Any
meeting of shareholders as to which notice has been given may be postponed, and any meeting of shareholders as to which notice has been
given may be cancelled, by the Board upon public announcement (as defined in Section 1.7(c)) given before the date previously
scheduled for such meeting.
Section 1.4. Quorum.
Except as otherwise provided by applicable law, the Corporation’s Amended and Restated Articles of Incorporation, as the same may
be amended or restated from time to time (the “Articles of Incorporation”), or these Bylaws, the presence, in
person or by proxy, at a shareholders meeting of the holders of shares of outstanding capital stock of the Corporation representing a
majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall constitute
a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a class or series of
stock voting as a class, the holders of shares representing a majority of the voting power of the outstanding shares of such class or
series shall constitute a quorum of such class or series for the transaction of such business. If a quorum shall not be present or represented
by proxy at any meeting of the shareholders of the Corporation, the chairman of the meeting may adjourn the meeting from time to time
in the manner provided in Section 1.6 until a quorum shall attend. The shareholders present at a duly convened meeting may
continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Shares
of its own stock belonging to the Corporation or to another corporation, if a majority of the voting power of the shares entitled to vote
in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled
to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any
such other corporation to vote shares held by it in a fiduciary capacity.
Section 1.5. Voting
of Shares.
(a) Manner
of Voting. At any shareholders meeting, every shareholder entitled to vote may vote in person or by proxy. If authorized by the Board,
the voting by shareholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted by
electronic transmission (as defined in Section 8.3), provided that any such electronic transmission must either set forth
or be submitted with information from which the Corporation can determine that the electronic transmission was authorized by the shareholder
or proxy holder. The Board, in its discretion, or the chairman of the meeting of shareholders, in such person’s discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
(b) Proxies.
Each shareholder entitled to vote at a meeting of shareholders or to express consent or dissent to corporate action in writing without
a meeting may authorize another person or persons to act for such shareholder by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary of the Corporation
(the “Secretary”) until the meeting is called to order, but shall be filed with the Secretary before being voted.
Without limiting the manner in which a shareholder may authorize another person or persons to act for such shareholder as proxy, either
of the following shall constitute a valid means by which a shareholder may grant such authority. No shareholder shall have cumulative
voting rights.
(i) A
shareholder may execute a writing authorizing another person or persons to act for such shareholder as proxy. Execution may be accomplished
by the shareholder or such shareholder’s authorized officer, director, employee or agent signing such writing or causing such person’s
signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A
shareholder may authorize another person or persons to act for such shareholder as proxy by transmitting or authorizing the transmission
of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that
any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic
transmission was authorized by the shareholder. Any copy, facsimile telecommunication or other reliable reproduction of the writing or
transmission authorizing another person or persons to act as proxy for a shareholder may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing or transmission could be used; provided that such copy,
facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
(c) Required
Vote. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect
directors pursuant to the terms of one or more series of Preferred Stock, at all meetings of shareholders at which a quorum is present,
the election of directors shall be determined by a plurality of the votes cast by the shareholders present in person or represented by
proxy at the meeting and entitled to vote thereon. All other matters presented to the shareholders at a meeting at which a quorum is present
shall be determined by the vote of a majority of the votes cast by the shareholders present in person or represented by proxy at the meeting
and entitled to vote thereon, unless the matter is one upon which, by applicable law, the Articles of Incorporation, these Bylaws or applicable
stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of such matter.
(d) Inspectors
of Election. The Board may, and shall if required by law, in advance of any meeting of shareholders, appoint one or more persons as
inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such
meeting of shareholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board,
the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine
the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes
and ballots and report the results; determine and retain for a reasonable period a record of the disposition of any challenges made to
any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and their count
of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report
of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at
such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.
Section 1.6. Adjournments.
Any meeting of shareholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or not there
is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and
place, if any, thereof, and the means of remote communication, if any, by which shareholders and proxy holders may be deemed to be present
in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting
the shareholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact
any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote at the meeting. If, after the adjournment, a new record date for
shareholders entitled to vote is fixed for the adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting
in accordance with Section 8.2, and shall give notice of the adjourned meeting to each shareholder of record entitled to vote
at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
Section 1.7. Advance
Notice for Business.
(a) Annual
Meetings of Shareholders. No business may be transacted at an annual meeting of shareholders, other than business that is either (i) specified
in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise
properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual
meeting by any shareholder of the Corporation (x) who is a shareholder of record entitled to vote at such annual meeting on the date
of the giving of the notice provided for in this Section 1.7(a) and on the record date for the determination of shareholders
entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this Section 1.7(a).
Notwithstanding anything in this Section 1.7(a) to the contrary, only persons nominated for election as a director to
fill any term of a directorship that expires on the date of the annual meeting pursuant to Section 2.2 will be considered
for election at such meeting.
(i) In
addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by
a shareholder, such shareholder must have given timely notice thereof in proper written form to the Secretary and such business must otherwise
be a proper matter for shareholder action. Subject to Section 1.7(a)(iii), a shareholder’s notice to the Secretary with
respect to such business, to be timely, must be received by the Secretary at the principal executive office of the Corporation not later
than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the
immediately preceding annual meeting of shareholders (which date shall, for purposes of the Corporation’s first annual meeting
of shareholders, be deemed to have occurred on May 1, 2023); provided, however, that in the event that the annual meeting is more
than 30 days before or more than 60 days after such anniversary date, notice by the shareholder to be timely must be so received no earlier
than the close of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th
day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of
the annual meeting is first made by the Corporation. The public announcement of an adjournment or postponement of an annual meeting shall
not commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described in this Section 1.7(a).
(ii) To
be in proper written form, a shareholder’s notice to the Secretary with respect to any business (other than nominations) must set
forth as to each such matter such shareholder proposes to bring before the annual meeting (A) a brief description of the business
desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed
for consideration and, in the event such business includes a proposal to amend these Bylaws, the language of the proposed amendment) and
the reasons for conducting such business at the annual meeting; (B) the name and record address of such shareholder and the name
and address of the beneficial owner, if any, on whose behalf the proposal is made; (C) the class or series and number of shares of
capital stock of the Corporation that are owned beneficially and of record by such shareholder and by the beneficial owner, if any, on
whose behalf the proposal is made; (D) a description of all arrangements or understandings between such shareholder and the beneficial
owner, if any, on whose behalf the proposal is made and any other person or persons (including their names) in connection with the proposal
of such business by such shareholder; (E) any material interest of such shareholder and the beneficial owner, if any, on whose behalf
the proposal is made in such business; and (F) a representation that such shareholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting.
(iii) The
foregoing notice requirements of this Section 1.7(a) shall be deemed satisfied by a shareholder as to any proposal (other
than nominations) if the shareholder has notified the Corporation of such shareholder’s intention to present such proposal at an
annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and such shareholder has complied with the requirements of such Rule for inclusion of such proposal in a proxy
statement prepared by the Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual meeting
of shareholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 1.7(a);
provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing
in this Section 1.7(a) shall be deemed to preclude discussion by any shareholder of any such business. If the Board or
the chairman of the annual meeting determines that any shareholder proposal was not made in accordance with the provisions of this Section 1.7(a) or
that the information provided in a shareholder’s notice does not satisfy the information requirements of this Section 1.7(a),
such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 1.7(a),
if the shareholder (or a qualified representative of the shareholder) does not appear at the annual meeting of shareholders of the Corporation
to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such matter
may have been received by the Corporation.
(iv) In
addition to the provisions of this Section 1.7(a), a shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 1.7(a) shall
be deemed to affect any rights of shareholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
(b) Special
Meetings of Shareholders. Only such business shall be conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special
meeting of shareholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant to Section 2.2.
(c) Public
Announcement. For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act (or any
successor thereto).
Section 1.8. Conduct
of Meetings. The chairman of each annual and special meeting of shareholders shall be the Chairman of the Board or, in the absence
(or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the
absence (or inability or refusal to act) of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President
(if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director,
such other person as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon
which the shareholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board may adopt such
rules and regulations for the conduct of the meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent
with these Bylaws or such rules and regulations as adopted by the Board, the chairman of any meeting of shareholders shall have the
right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts
as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment
of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety
of those present; (c) limitations on attendance at or participation in the meeting to shareholders of record of the Corporation,
their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions
or comments by participants. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of shareholders
shall not be required to be held in accordance with the rules of parliamentary procedure. The secretary of each annual and special
meeting of shareholders shall be the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary
so appointed to act by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant
Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 1.9. Consents
in Lieu of Meeting. Any action required or permitted to be taken by the shareholders of the Corporation may be taken by the holders
of outstanding shares of the relevant class or series having not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and is delivered to the Corporation
by delivery to its registered office in the State of Minnesota, or to an officer or agent of the Corporation having custody of the books
in which proceedings of meetings of shareholders are recorded; provided, however, that in the event that the Corporation becomes a “publicly
held corporation” as defined and used in the MBCA, then such action may not be effected by any consent in writing or by electric
transmission unless such writing or electronic transmission is signed by all of the holders of stock entitled to vote on that action.
ARTICLE II
DIRECTORS
Section 2.1. Powers;
Number. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Articles of Incorporation or by
these Bylaws required to be exercised or done by the shareholders. Directors need not be shareholders or residents of the State of Minnesota.
Subject to the initial number of directors set forth in the Articles of Incorporation, the number of directors thereafter shall be fixed
exclusively by resolution of the Board.
Section 2.2. Advance
Notice for Nomination of Directors.
(a) Only
persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation,
except as may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one
or more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of shareholders,
or at any special meeting of shareholders called for the purpose of electing directors as set forth in the Corporation’s notice
of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any shareholder of the Corporation (x) who
is a shareholder of record entitled to vote in the election of directors on the date of the giving of the notice provided for in this
Section 2.2 and on the record date for the determination of shareholders entitled to vote at such meeting and (y) who
complies with the notice procedures set forth in this Section 2.2.
(b) In
addition to any other applicable requirements, for a nomination to be made by a shareholder, such shareholder must have given timely notice
thereof in proper written form to the Secretary. To be timely, a shareholder’s notice to the Secretary must be received by the Secretary
at the principal executive office of the Corporation (i) in the case of an annual meeting, not later than the close of business on
the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual meeting
of shareholders (which date shall, for purposes of the Corporation’s first annual meeting of shareholders, be deemed to have occurred
on May 1, 2023); provided, however, that in the event that the annual meeting is more than 30 days before or more than 60 days after
such anniversary date, notice by the shareholder to be timely must be so received no earlier than the close of business on the 120th day
before the meeting and no later than the later of (x) the close of business on the 90th day before the meeting or (y) the close
of business on the 10th day following the day on which public announcement of the date of the annual meeting was first made by the Corporation;
and (ii) in the case of a special meeting of shareholders called for the purpose of electing directors, not later than the close
of business on the 10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation.
In no event shall the public announcement of an adjournment or postponement of an annual meeting or special meeting commence a new time
period (or extend any time period) for the giving of a shareholder’s notice as described in this Section 2.2.
(c) Notwithstanding
anything in Section 2.2(b) to the contrary, in the event that the number of directors to be elected to the Board at an annual
meeting is greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement
by the Corporation naming all of the nominees for the additional directors to be elected or specifying the size of the increased Board
before the close of business on the 90th day prior to the anniversary date of the immediately preceding annual meeting of shareholders,
a shareholder’s notice required by this Section 2.2 shall also be considered timely, but only with respect to nominees
for the additional directorships created by such increase that are to be filled by election at such annual meeting, if it shall be received
by the Secretary at the principal executive office of the Corporation not later than the close of business on the 10th day following the
date on which such public announcement was first made by the Corporation.
(d) To
be in proper written form, a shareholder’s notice to the Secretary must set forth (i) as to each person whom the shareholder
proposes to nominate for election as a director (A) the name, age, business address and residence address of the person; (B) the
principal occupation or employment of the person; (C) the class or series and number of shares of capital stock of the Corporation,
if any, that are owned beneficially or of record by the person; and (D) any other information relating to the person that would be
required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (ii) as
to the shareholder giving the notice (A) the name and record address of such shareholder as they appear on the Corporation’s
books and the name and address of the beneficial owner, if any, on whose behalf the nomination is made; (B) the class or series and
number of shares of capital stock of the Corporation that are owned beneficially and of record by such shareholder and the beneficial
owner, if any, on whose behalf the nomination is made; (C) a description of all arrangements or understandings relating to the nomination
to be made by such shareholder among such shareholder, the beneficial owner, if any, on whose behalf the nomination is made, each proposed
nominee and any other person or persons (including their names); (D) a representation that such shareholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice; and (E) any other information relating to such shareholder
and the beneficial owner, if any, on whose behalf the nomination is made that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of
the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if elected.
(e) If
the Board or the chairman of the meeting of shareholders determines that any nomination was not made in accordance with the provisions
of this Section 2.2, or that the information provided in a shareholder’s notice does not satisfy the information requirements
of this Section 2.2, then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing
provisions of this Section 2.2, if the shareholder (or a qualified representative of the shareholder) does not appear at the
meeting of shareholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies
in respect of such nomination may have been received by the Corporation.
(f) In
addition to the provisions of this Section 2.2, a shareholder shall also comply with all of the applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.2
shall be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Articles of Incorporation.
Section 2.3. Compensation.
Unless otherwise restricted by the Articles of Incorporation or these Bylaws, the Board shall have the authority to fix the compensation
of directors, including for service on a committee of the Board, and may be paid either a fixed sum for attendance at each meeting of
the Board or other compensation as director. The directors may be reimbursed their expenses, if any, of attendance at each meeting of
the Board. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.
ARTICLE III
BOARD MEETINGS
Section 3.1. Annual
Meetings. The Board shall meet as soon as practicable after the adjournment of each annual shareholders meeting at the place of the
annual shareholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein for
special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this
Section 3.1.
Section 3.2. Regular
Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places (within or
without the State of Minnesota) as shall from time to time be determined by the Board.
Section 3.3. Special
Meetings. Special meetings of the Board (a) may be called by the Chairman of the Board or the President and (b) shall be
called by the Chairman of the Board, the Chief Executive Officer, the President or the Secretary on the written request of at least a
majority of directors then in office, or the sole director, as the case may be, and shall be held at such time, date and place (within
or without the State of Minnesota) as may be determined by the person calling the meeting or, if called upon the request of directors
or the sole director, as specified in such written request. Notice of each special meeting of the Board shall be given, as provided in
Section 8.3, to each director (i) at least 24 hours before the meeting if such notice is oral notice given personally
or by telephone or written notice given by hand delivery or by means of a form of electronic transmission and delivery; (ii) at least
two days before the meeting if such notice is sent by a nationally recognized overnight delivery service; and (iii) at least five
days before the meeting if such notice is sent through the United States mail. If the Secretary shall fail or refuse to give such notice,
then the notice may be given by the officer who called the meeting or the directors who requested the meeting. Any and all business that
may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except as may be otherwise expressly provided
by applicable law, the Articles of Incorporation, or these Bylaws, neither the business to be transacted at, nor the purpose of, any special
meeting need be specified in the notice or waiver of notice of such meeting. A special meeting may be held at any time without notice
if all the directors are present or if those not present waive notice of the meeting in accordance with Section 8.4.
Section 3.4. Quorum;
Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, and
the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may
be otherwise specifically provided by applicable law, the Articles of Incorporation or these Bylaws. If a quorum shall not be present
at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
Section 3.5. Consent
In Lieu of Meeting. Unless otherwise restricted by the Articles of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if the number of directors that would
be required to take the same action at a meeting of the Board at which all directors are present, or any committee thereof, as the case
may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions
(or paper reproductions thereof) are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form
if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 3.6. Organization.
The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act)
of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or
in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors
present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary,
an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the
Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE IV
COMMITTEES OF DIRECTORS
Section 4.1. Establishment.
The Board may by resolution of the Board designate one or more committees, each committee to consist of one or more of the directors of
the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required by the resolution
designating such committee. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee.
Section 4.2. Available
Powers. Any committee established pursuant to Section 4.1 hereof, to the extent permitted by applicable law and by resolution
of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business and affairs of
the Corporation, and may authorize the seal of the Corporation, if any, to be affixed to all papers that may require it.
Section 4.3. Alternate
Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in place of any such absent or disqualified member.
Section 4.4. Procedures.
Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such
committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless
such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute
a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall
be the act of the committee, except as otherwise specifically provided by applicable law, the Articles of Incorporation, these Bylaws
or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided
in these Bylaws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business.
In the absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its
business pursuant to Article II and Article III of these Bylaws.
ARTICLE V
OFFICERS
Section 5.1. Officers.
The officers of the Corporation elected by the Board shall be a Chief Executive Officer, a Chief Financial Officer, a Secretary and such
other officers (including without limitation, a Chairman of the Board, Presidents, Vice Presidents, Assistant Secretaries and a Treasurer)
as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally pertain
to their respective offices, subject to the specific provisions of this Article V. Such officers shall also have such powers
and duties as from time to time may be conferred by the Board. The Chief Executive Officer or the President may also appoint such other
officers (including without limitation one or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of
the business of the Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as
may be provided in these Bylaws or as may be prescribed by the Board or, if such officer has been appointed by the Chief Executive Officer
or President, as may be prescribed by the appointing officer.
(a) Chairman
of the Board. The Chairman of the Board shall preside when present at all meetings of the shareholders and the Board. The Chairman
of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority
of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or
inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside
when present at all meetings of the shareholders and the Board. The powers and duties of the Chairman of the Board shall not include supervision
or control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board).
The position of Chairman of the Board and Chief Executive Officer may be held by the same person and may be held by more than one person.
(b) Chief
Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision
of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall
be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties
have been prescribed to the Chairman of the Board pursuant to Section 5.1(a) above. In the absence (or inability or refusal
to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all
meetings of the shareholders and the Board. The position of Chief Executive Officer and President may be held by the same person and may
be held by more than one person.
(c) President.
The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for
the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of
the Board and the Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings
of the shareholders and the Board. The President shall also perform such duties and have such powers as shall be designated by the Board.
The position of President and Chief Executive Officer may be held by the same person.
(d) Vice
Presidents. In the absence (or inability or refusal to act) of the President, the Vice President (or, in the event there be more than
one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President.
Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The
Secretary shall attend all meetings of the shareholders, the Board and (as required) committees of the Board and shall record the proceedings
of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders
and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board, the
Chief Executive Officer or the President. The Secretary shall have custody of the corporate seal, if any, of the Corporation and the Secretary,
or any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested
by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to
affix the seal of the Corporation, if any, and to attest the affixing thereof by his or her signature.
(ii) The
Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s
transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the shareholders
and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates
issued for the same and the number and date of certificates cancelled.
(f) Assistant
Secretaries. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board
shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Chief
Financial Officer. The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation,
the care and custody of the funds and securities of the Corporation which from time to time may come into the Chief Financial Officer’s
hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer or the
President may authorize).
(h) Treasurer.
The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the
powers of the Chief Financial Officer.
Section 5.2. Term
of Office; Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office until
their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification,
or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the Chief
Executive Officer or the President may also be removed, with or without cause, by the Chief Executive Officer or President, as the case
may be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board.
Any vacancy occurring in any office appointed by the Chief Executive Officer or the President may be filled by the Chief Executive Officer,
or President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the Board, in which
case the Board shall elect such officer.
Section 5.3. Other
Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents
or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 5.4. Multiple
Officeholders; Shareholder and Director Officers. Any number of offices may be held by the same person unless the Articles of Incorporation
or these Bylaws otherwise provide. Officers need not be shareholders or residents of the State of Minnesota.
ARTICLE VI
SHARES
Section 6.1. Certificated
and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of
the Board and the requirements of the MBCA.
Section 6.2. Multiple
Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class,
the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights to be set
forth in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series
of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send
to the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause
(a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there
may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement
that the Corporation will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions
of such preferences or rights.
Section 6.3. Signatures.
Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the Chairman
of the Board, the Chief Executive Officer, the President or a Vice President and (b) the Chief Financial Officer, the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if such person were such officer, transfer agent or registrar on the date of issue.
Section 6.4. Consideration
and Payment for Shares.
(a)
Subject to applicable law and the Articles of Incorporation, shares of stock may be issued for such consideration,
having in the case of shares with par value a value not less than the par value thereof, and to such persons, as determined from
time to time by the Board. The consideration may consist of any tangible or intangible property or any benefit to the Corporation
including cash, promissory notes, services performed, contracts for services to be performed or other securities, or any combination
thereof.
(b) Subject
to applicable law and the Articles of Incorporation, shares may not be issued until the full amount of the consideration has been paid,
unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records
of the Corporation, in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration
to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares or said
uncertificated shares are issued.
Section 6.5. Lost,
Destroyed or Wrongfully Taken Certificates.
(a) If
an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation
shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new
certificate before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser;
(ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance
of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If
a certificate representing shares has been lost, apparently destroyed or wrongfully taken; the owner fails to notify the Corporation of
that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking; and the Corporation
registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation
any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 6.6. Transfer
of Stock.
(a) If
a certificate representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of
transfer of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares,
the Corporation shall register the transfer as requested if:
(i) in
the case of certificated shares, the certificate representing such shares has been surrendered;
(ii) (A) with
respect to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with
respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect
to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person or by an agent
who has actual authority to act on behalf of the appropriate person;
(iii) the
Corporation has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance
that the endorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the
transfer does not violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with Section 6.8(a);
and
(v) such
other conditions for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever
any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry
of transfer if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated,
when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request
the Corporation to do so.
Section 6.7. Registered
Shareholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an
instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person
exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such
shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of
such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such
person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided
under applicable law, may also so inspect the books and records of the Corporation in accordance with the applicable provisions of the
MBCA.
Section 6.8. Effect
of the Corporation’s Restriction on Transfer.
(a) A
written restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation
that may be owned by any person or group of persons, if permitted by the MBCA and noted conspicuously on the certificate representing
such shares or, in the case of uncertificated shares, contained in a notice, offering circular or prospectus sent by the Corporation to
the registered owner of such shares within a reasonable time prior to or after the issuance or transfer of such shares, may be enforced
against the holder of such shares or any successor or transferee of the holder including an executor, administrator, trustee, guardian
or other fiduciary entrusted with like responsibility for the person or estate of the holder.
(b) A
restriction imposed by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of
the Corporation that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without
actual knowledge of such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate;
or (ii) the shares are uncertificated and such restriction was contained in a notice, offering circular or prospectus sent by the
Corporation to the registered owner of such shares within a reasonable time prior to or after the issuance or transfer of such shares.
Section 6.9. Regulations.
The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of
law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock
or certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity
thereof that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Right
to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation
shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise involved
in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter
a “proceeding”), by reason of the fact that he or she is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect
to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee
or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines,
ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding;
provided, however, that, except as provided in Section 7.3 with respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such
proceeding (or part thereof) was authorized by the Board.
Section 7.2. Right
to Advancement of Expenses. In addition to the right to indemnification conferred in Section 7.1, an Indemnitee shall
also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without
limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition
(hereinafter an “advancement of expenses”); provided, however, that, if the MBCA requires, an advancement of
expenses incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in
which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made
only upon the Corporation’s receipt of an undertaking (hereinafter an “undertaking”), by or on behalf
of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified
under this Article VII or otherwise.
Section 7.3. Right
of Indemnitee to Bring Suit. If a claim under Section 7.1 or Section 7.2 is not paid in full by the Corporation
within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid the expense
of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder
(but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses), it shall be a defense that, and (b) in
any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall
be entitled to recover such expenses upon a final judicial decision from which there is no further right to appeal (hereinafter a “final
adjudication”) that, the Indemnitee has not met any applicable standard for indemnification set forth in the MBCA. Neither
the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent
legal counsel, or its shareholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the MBCA, nor an actual
determination by the Corporation (including a determination by its directors who are not parties to such action, a committee of such directors,
independent legal counsel, or its shareholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption
that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be
a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee
is not entitled to be indemnified, or to such advancement of expenses, under this Article VII or otherwise shall be on the
Corporation.
Section 7.4. Non-Exclusivity
of Rights. The rights provided to any Indemnitee pursuant to this Article VII shall not be exclusive of any other right
which such Indemnitee may have or hereafter acquire under applicable law, the Articles of Incorporation, these Bylaws, an agreement, a
vote of shareholders or disinterested directors, or otherwise.
Section 7.5. Insurance.
The Corporation may secure and maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the MBCA.
Section 7.6. Indemnification
of Other Persons. This Article VII shall not limit the right of the Corporation to the extent and in the manner authorized
or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation
may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect
to an employee benefit plan, to the fullest extent of the provisions of this Article VII with respect to the indemnification
and advancement of expenses of Indemnitees under this Article VII.
Section 7.7. Amendments.
Except as set forth in the Articles of Incorporation, any repeal or amendment of this Article VII by the Board, by the shareholders
of the Corporation, or by changes in applicable law, or the adoption of any other provision of these Bylaws inconsistent with this Article VII,
will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law
permits the Corporation to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto),
and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring
prior to such repeal or amendment or adoption of such inconsistent provision; provided, however, that amendments or repeals of this Article VII
shall require the affirmative vote of the shareholders holding a majority of the voting power of all outstanding shares of capital stock
of the Corporation.
Section 7.8. Certain
Definitions. For purposes of this Article VII, (a) references to “other enterprise” shall
include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on
a person with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation”
shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants,
or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the
best interest of the Corporation” for purposes of Section 302A.521 of the MBCA.
Section 7.9. Contract
Rights. The rights provided to Indemnitees pursuant to this Article VII shall be contract rights and such rights shall
continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s
heirs, executors and administrators.
Section 7.10. Severability.
If any provision or provisions of this Article VII shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of this Article VII shall not in any way be
affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VII (including,
without limitation, each such portion of this Article VII containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Place
of Meetings. If the place of any meeting of shareholders, the Board or committee of the Board for which notice is required under these
Bylaws is not designated in the notice of such meeting, such meeting shall be held at the principal executive office of the Corporation;
provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall
be held by means of remote communication pursuant to Section 8.5 hereof, then such meeting shall not be held at any place.
Section 8.2. Fixing
Record Dates.
(a) In
order that the Corporation may determine the shareholders entitled to notice of any meeting of shareholders or any adjournment thereof,
the Board, or any committee thereof, may fix a record date, which shall not precede the date upon which the resolution fixing the record
date is adopted by the Board or such committee, and which record date shall not be more than 60 nor less than 10 days before the date
of such meeting. If the Board, or such committee, so fixes a date, such date shall also be the record date for determining the shareholders
entitled to vote at such meeting unless the Board or such committee thereof determines, at the time it fixes such record date, that a
later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board,
or any committee thereof, the record date for determining shareholders entitled to notice of and to vote at a meeting of shareholders
shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the
close of business on the business day next preceding the day on which the meeting is held. A determination of shareholders of record entitled
to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board,
or any committee thereof, may fix a new record date for the adjourned meeting, and in such case shall also fix as the record date for
shareholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of shareholders
entitled to vote in accordance with the foregoing provisions of this Section 8.2(a) at the adjourned meeting.
(b) In
order that the Corporation may determine the shareholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the shareholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board, or any committee thereof, may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action.
If no record date is fixed, the record date for determining shareholders for any such purpose shall be at the close of business on the
day on which the Board adopts the resolution relating thereto.
Section 8.3. Means
of Giving Notice.
(a) Notice
to Directors. Whenever under applicable law, the Articles of Incorporation or these Bylaws notice is required to be given to any director,
such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery service; (ii) by means
of facsimile telecommunication or other form of electronic transmission; or (iii) by oral notice given personally or by telephone.
A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received
by the director; (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon
prepaid, addressed to the director at the director’s address appearing on the records of the Corporation; (iii) if sent for
next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid,
addressed to the director at the director’s address appearing on the records of the Corporation; (iv) if sent by facsimile
telecommunication, when sent to the facsimile transmission number for such director appearing on the records of the Corporation; (v) if
sent by electronic mail, when sent to the electronic mail address for such director appearing on the records of the Corporation; or (vi) if
sent by any other form of electronic transmission, when sent to the address, location or number (as applicable) for such director appearing
on the records of the Corporation.
(b) Notice
to Shareholders. Whenever under applicable law, the Articles of Incorporation or these Bylaws notice is required to be given to any
shareholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally
recognized overnight delivery service for next day delivery; or (ii) by means of a form of electronic transmission consented to by
the shareholder, to the extent permitted by, and subject to the conditions set forth in, Section 302A.436 of the MBCA. A notice to
a shareholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the shareholder; (ii) if
sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the
shareholder at the shareholder’s address appearing on the stock ledger of the Corporation; (iii) if sent for next day delivery
by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the shareholder
at the shareholder’s address appearing on the stock ledger of the Corporation; and (iv) if given by a form of electronic transmission
consented to by the shareholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile
transmission, when directed to a number at which the shareholder has consented to receive notice; (B) if by electronic mail, when
directed to an electronic mail address at which the shareholder has consented to receive notice; (C) if by a posting on an electronic
network together with separate notice to the shareholder of such specified posting, upon the later of (1) such posting and (2) the
giving of such separate notice; and (D) if by any other form of electronic transmission, when directed to the shareholder. A shareholder
may revoke such shareholder’s consent to receiving notice by means of electronic communication by giving written notice of such
revocation to the Corporation. Any such consent shall be deemed revoked if (x) the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in accordance with such consent and (y) such inability becomes known
to the Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of
notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(c) Electronic
Transmission. “Electronic transmission” means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process, including, but not limited to transmission by telex, facsimile
telecommunication, electronic mail, telegram and cablegram.
(d) Notice
to Shareholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation
to shareholders, any notice to shareholders given by the Corporation under any provision of the MBCA, the Articles of Incorporation or
these Bylaws shall be effective if given by a single written notice to shareholders who share an address if consented to by the shareholders
at that address to whom such notice is given. A shareholder may revoke such shareholder’s consent by delivering written notice of
such revocation to the Corporation. Any shareholder who fails to object in writing to the Corporation within 60 days of having been given
written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving
such single written notice.
(e) Exceptions
to Notice Requirements. Whenever notice is required to be given, under the MBCA, the Articles of Incorporation or these Bylaws, to
any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty
to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that
shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if
such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate
with the Secretary of State of Minnesota, the certificate shall state, if such is the fact and if notice is required, that notice was
given to all persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever notice is required
to be given by the Corporation under any provision of the MBCA, the Articles of Incorporation or these Bylaws, to any shareholder to whom
(1) notice of two consecutive annual meetings of shareholders and all notices of shareholder meetings or of the taking of action
by written consent of shareholders without a meeting to such shareholder during the period between such two consecutive annual meetings;
or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period,
have been mailed addressed to such shareholder at such shareholder’s address as shown on the records of the Corporation and have
been returned undeliverable, the giving of such notice to such shareholder shall not be required. Any action or meeting that shall be
taken or held without notice to such shareholder shall have the same force and effect as if such notice had been duly given. If any such
shareholder shall deliver to the Corporation a written notice setting forth such shareholder’s then current address, the requirement
that notice be given to such shareholder shall be reinstated. In the event that the action taken by the Corporation is such as to require
the filing of a certificate with the Secretary of State of Minnesota, the certificate need not state that notice was not given to persons
to whom notice was not required to be given pursuant to Section 302A.435 of the MBCA. The exception in subsection (1) of the
first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice returned as undeliverable
if the notice was given by electronic transmission.
Section 8.4. Waiver
of Notice. Whenever any notice is required to be given under applicable law, the Articles of Incorporation, or these Bylaws, a written
waiver of such notice, signed by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled
to said notice, whether before or after the time stated therein, shall be deemed equivalent to such required notice. All such waivers
shall be kept with the books and records of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting,
except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was
not lawfully called or convened.
Section 8.5. Meeting
Attendance via Remote Communication.
(a) Shareholder
Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt,
shareholders entitled to vote at a meeting held in whole or in part via remote communication and proxy holders not physically present
at a meeting of shareholders may, by means of remote communication:
(i) participate
in a meeting of shareholders; and
(ii) be
deemed present in person and vote at a meeting of shareholders, whether such meeting is to be held at a designated place or solely by
means of remote communication, provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is a shareholder or proxy holder; (B) the Corporation
shall implement reasonable measures to provide such shareholders and proxy holders a reasonable opportunity to participate in the meeting
and, if entitled to vote, to vote on matters submitted to the applicable shareholders, including an opportunity to read or hear the proceedings
of the meeting substantially concurrently with such proceedings; and (C) if any shareholder or proxy holder votes or takes other
action at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the Corporation.
(b) Board
Meetings. Unless otherwise restricted by applicable law, the Articles of Incorporation or these Bylaws, members of the Board or any
committee thereof may participate in a meeting of the Board or any committee thereof by means of remote communication. Such participation
in a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 8.6. Dividends.
The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s
capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Articles of Incorporation.
Section 8.7. Reserves.
The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
Section 8.8. Contracts
and Negotiable Instruments. Except as otherwise provided by applicable law, the Articles of Incorporation or these Bylaws, any contract,
bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation by such officer
or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority may be general
or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract, bond, deed, lease, mortgage or other
instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President may delegate powers to execute
and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers
or employees of the Corporation under such person’s supervision and authority, it being understood, however, that any such delegation
of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 8.9. Fiscal
Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 8.10. Seal.
The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
Section 8.11. Books
and Records. The books and records of the Corporation may be kept within or outside the State of Minnesota at such place or places
as may from time to time be designated by the Board.
Section 8.12. Resignation.
Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time it is delivered
unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 8.13. Surety
Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, the Chief Executive Officer,
the President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration
to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and
by such surety companies as the Chairman of the Board, the Chief Executive Officer, the President or the Board may determine. The premiums
on such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.
Section 8.14. Securities
of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments relating
to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the Board, the
Chief Executive Officer, President, any Vice President or any officers authorized by the Board. Any such officer, may, in the name of
and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting
of security holders of any corporation in which the Corporation may own securities, or to consent in writing, in the name of the Corporation
as such holder, to any action by such corporation, and at any such meeting or with respect to any such consent shall possess and may exercise
any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have
exercised and possessed. The Board may from time to time confer like powers upon any other person or persons.
Section 8.15. Amendments.
The Board shall have the power to adopt, amend, alter or repeal the Bylaws by the affirmative vote of a majority of the Board. The Bylaws
also may be adopted, amended, altered or repealed by the shareholders; provided, however, that in addition to any vote of the holders
of any class or series of capital stock of the Corporation required by applicable law or the Articles of Incorporation, the affirmative
vote of the holders of at least a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single class, shall be required for the shareholders to adopt, amend,
alter or repeal the Bylaws.
Exhibit 3.4
AMENDMENT NO. 1 TO THE
BYLAWS OF
PARK DENTAL PARTNERS, INC.
Pursuant to a Written Action
of the Board of Directors (the “Board”) of Park Dental Partners, Inc., a Minnesota corporation (the “Corporation”),
and in accordance with the Corporation’s Third Amended and Restated Articles of Incorporation, duly adopted pursuant to filing with
the Secretary of State of the State of Minnesota on December 4, 2024 (the “Restated Articles”), and the Corporation’s
Bylaws, duly adopted as of August 1, 2023 (the “Bylaws”), this Amendment No. 1 (this “Amendment”)
to the Bylaws of the Corporation, is made effective as of December 4, 2024 (the “Effective Date”).
WHEREAS, the Board
desires to enter into this Amendment to confer upon DDS Advisor LLC, a South Dakota limited liability company, the right to appoint certain
directors on the Board, from time to time, as described further herein.
WHEREAS, the Board
has the authority to adopt this Amendment pursuant to Article V of the Restated Articles, and Section 8.15 of
the Bylaws.
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto amend the Bylaws as
follows:
| 1. | Capitalized terms used but not defined in this Amendment are as defined in the Bylaws. |
| 2. | A new Section 2.4 shall be added to the Bylaws as follows: |
“Section 2.4. Appointment
of Certain Directors. Notwithstanding the foregoing provisions of this Article II, at each annual or special meeting of
the shareholders at which an election of directors is held or pursuant to any written consent of the shareholders for that purpose (subject
to Section 1.9), DDS Advisor LLC, a South Dakota limited liability company (“DDS Advisor”), and an affiliate
of the Corporation, shall be exclusively entitled to appoint a number of directors, such that (i) the total number of directors appointed
by DDS Advisor pursuant to this Section 2.4 shall at all times be a minimum of three (3) directors, and (ii) there
shall at all times be a DDS Appointee (as that term is defined below) in each of the three (3) classes of directors designated as
Class I, Class II, and Class III, pursuant to the Articles of Incorporation. In the event that the number of directors
constituting the whole Board is increased to more than seven (7) directors, then the number of directors that DDS Advisor shall be
exclusively entitled to appoint pursuant to this Section 2.4 shall also increase proportionately, such that for every two
(2) newly-created directorships on the Board (over and above seven (7) directors), DDS Advisor shall be exclusively entitled
to appoint one (1) of those two (2) newly-created directorships. A director appointed by DDS Advisor pursuant to this Section 2.4
shall be referred to as a “DDS Appointee.” A DDS Appointee may be removed with or without cause, only by DDS Advisor.
Any vacancy occurring in the Board as a result of death, resignation, retirement, disqualification, or removal of a DDS Appointee, shall
be filled by DDS Advisor.”
| 3. | For purposes of clarity and avoidance of doubt, as of the Effective Date, each of Peter Swenson (Board
Chair and Class III Director), Dr. Alan Law (Class II Director), and Dr. Christopher Steele (Class I Director),
shall be considered a DDS Appointee (as that term is defined above). |
| 4. | Section 8.15 of the Bylaws shall be amended and restated in its entirety as follows: |
“Section 8.15. Amendments.
The Board shall have the power to adopt, amend, alter or repeal the Bylaws by the affirmative vote of a majority of the Board; provided,
however, that amendments, alterations, or repeals of Section 2.4 shall require the affirmative vote of the shareholders holding
at least 66-2/3% of the total voting power of all the then outstanding shares of common stock of the Corporation, voting together as a
single class. The Bylaws also may be adopted, amended, altered or repealed by the shareholders. In addition to any vote of the holders
of any class or series of capital stock of the Corporation required by applicable law or the Articles of Incorporation, the affirmative
vote of the holders of at least a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single class, shall be required for the shareholders to adopt, amend,
alter or repeal the Bylaws; provided, however, that amendments, alterations, or repeals of Section 2.4 shall require the affirmative
vote of the shareholders holding at least 66-2/3% of the total voting power of all the then outstanding shares of common stock of the
Corporation, voting together as a single class.”
| 5. | Except as specifically modified herein, all other provisions of the Bylaws shall remain unmodified and
in full force and effect and the Corporation and all shareholders of the Corporation shall be fully bound thereby. |
| 6. | This Amendment may be executed in counterparts, each constituting a duplicate original, but all such counterparts
constituting one and the same document. |
| 7. | This Amendment shall be binding upon the parties hereto and their respective heirs, successors and assigns. |
[Signature
Page(s) to Follow.]
IN WITNESS WHEREOF,
the undersigned have executed this Amendment No. 1 to the Bylaws effective as of the day and year first above written.
| |
DIRECTORS: |
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Peter Swenson, Director |
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Dr. Christopher Steele, Director |
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Dr. Alan Law, Director |
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Dr. Todd Gerlach, Director |
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Dr. Anna Riester, Director |
Exhibit 4.1
SEE
RESTRICTIVE LEGEND ON THE REVERSE
INCORPORATED UNDER
THE LAWS OF THE STATE OF MINNESOTA
| [cert#] |  | [#shares] |
Park Dental Partners, Inc.
This Certifies
that ____________________ is the owner and registered holder of
- - ______________ (_______) - - Shares of
Common Stock
of Park Dental Partners, Inc.
transferable
only on the books of the corporation by the holder hereof in person or by
duly authorized attorney upon surrender of this
certificate properly endorsed.
IN WITNESS
WHEREOF, the said corporation has caused this certificate to be signed by its duly
authorized officers and to be sealed
with the seal of the corporation this ___ day of ______________, 20__.
| | | |
| Peter Swenson, Chief Executive
Officer | | Christopher
J. Bernander, Chief Financial Officer |
Exhibit 10.1
US Bank/Park Dental
A&R Credit Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
PDG, P.A.
DENTAL SPECIALISTS OF MINNESOTA, PLLC,
ORTHODONTIC SPECIALISTS OF MINNESOTA, PLLC,
PARK DENTAL PARTNERS, INC.,
THE FACIAL PAIN CENTER, PLLC, and
PDP MN, LLC,
as Borrowers
and
U.S. BANK NATIONAL ASSOCIATION
as Lender
Dated as of: March 27, 2024
US Bank/Park Dental
A&R Credit Agreement
Table
of Contents
Page
| ARTICLE I. Definitions |
1 |
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Section 1.1 |
Definitions |
1 |
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Section 1.2 |
Cross References |
12 |
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| ARTICLE II. Amount and Terms of the Revolving Credit Facility and Term Loan |
12 |
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Section 2.1 |
Advances |
12 |
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Section 2.2 |
Principal; Interest; Default Interest; Participations; Usury |
15 |
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Section 2.3 |
Fees |
18 |
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Section 2.4 |
Computation of Interest and Fees |
19 |
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Section 2.5 |
Intentionally Deleted |
19 |
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Section 2.6 |
Voluntary Prepayment; Reduction of the Maximum Line; Termination of the Revolving Credit Facility by the Borrowers |
19 |
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Section 2.7 |
Accordion |
19 |
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Section 2.8 |
Mandatory Prepayment |
19 |
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Section 2.9 |
Payment |
19 |
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Section 2.10 |
Payment on Non-Banking Days |
20 |
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Section 2.11 |
Use of Proceeds |
20 |
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Section 2.12 |
Liability Records |
20 |
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Section 2.13 |
Increased Costs |
20 |
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Section 2.14 |
Certificates for Reimbursement; Delay in Requests |
21 |
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Section 2.15 |
SOFR Unavailability |
21 |
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Section 2.16 |
Taxes |
22 |
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Section 2.17 |
Lender Statements; Survival of Indemnity |
23 |
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| ARTICLE III. Conditions of Lending |
23 |
US Bank/Park Dental
A&R Credit Agreement
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Section 3.1 |
Conditions Precedent to the Initial Advance and making of the Term Loan |
23 |
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Section 3.2 |
Conditions Precedent to All Advances |
24 |
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| ARTICLE IV. Representations and Warranties |
25 |
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Section 4.1 |
Existence and Power; Name; Chief Executive Office; Organizational Identification Number |
25 |
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Section 4.2 |
Authorization of Borrowing; No Conflict as to Law or Agreements |
25 |
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Section 4.3 |
Legal Agreements |
26 |
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Section 4.4 |
Subsidiaries |
26 |
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Section 4.5 |
Financial Condition; No Adverse Change |
26 |
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Section 4.6 |
Litigation |
26 |
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Section 4.7 |
Regulation U |
26 |
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Section 4.8 |
Taxes |
26 |
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Section 4.9 |
Titles and Liens |
26 |
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Section 4.10 |
[Intentionally Deleted] |
26 |
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Section 4.11 |
Default |
27 |
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Section 4.12 |
[Intentionally Deleted] |
27 |
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Section 4.13 |
Submissions to Lender |
27 |
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Section 4.14 |
Financing Statements |
27 |
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Section 4.15 |
Leases |
27 |
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Section 4.16 |
Rights to Payment |
27 |
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Section 4.17 |
Financial Solvency |
27 |
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Section 4.18 |
Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws |
28 |
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Section 4.19 |
Accuracy of Information |
28 |
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Section 4.20 |
Material Agreements |
28 |
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Section 4.21 |
Compliance with Laws |
28 |
US Bank/Park Dental
A&R Credit Agreement
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Section 4.22 |
Ownership of Properties |
28 |
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Section 4.23 |
Plan Assets; Prohibited Transactions |
29 |
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Section 4.24 |
Environmental Matters |
29 |
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Section 4.25 |
Investment Company Act |
29 |
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Section 4.26 |
Insurance |
29 |
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Section 4.27 |
Subordinated Indebtedness |
29 |
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Section 4.28 |
Solvency |
29 |
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Section 4.29 |
No Default |
30 |
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Section 4.30 |
Anti-Corruption Laws; Sanctions |
30 |
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Section 4.31 |
Force Majeure |
30 |
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Section 4.32 |
Labor Matters |
30 |
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| ARTICLE V. Affirmative Covenants |
31 |
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Section 5.1 |
Reporting Requirements |
31 |
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Section 5.2 |
Books and Records; Inspection and Examination |
32 |
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Section 5.3 |
Account Verification |
33 |
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Section 5.4 |
Compliance with Laws |
33 |
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Section 5.5 |
Payment of Taxes and Other Claims |
33 |
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Section 5.6 |
Maintenance of Properties |
33 |
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Section 5.7 |
Insurance |
34 |
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Section 5.8 |
Preservation of Existence |
34 |
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Section 5.9 |
Delivery of Instruments, etc. |
34 |
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Section 5.10 |
Performance by the Lender |
34 |
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Section 5.11 |
Use of Proceeds |
35 |
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Section 5.12 |
Margin Stock |
35 |
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Section 5.13 |
Operating and Depository Accounts |
35 |
US Bank/Park Dental
A&R Credit Agreement
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Section 5.14 |
Minimum Fixed Charge Coverage Ratio |
35 |
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Section 5.15 |
Total Cash Flow Leverage Ratio |
35 |
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Section 5.16 |
[Intentionally Deleted] |
35 |
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Section 5.17 |
Notice of Material Events |
35 |
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| ARTICLE VI. Negative Covenants |
36 |
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Section 6.1 |
Liens |
36 |
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Section 6.2 |
Indebtedness |
37 |
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Section 6.3 |
Guaranties |
38 |
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Section 6.4 |
Investments and Subsidiaries |
38 |
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Section 6.5 |
Dividends |
39 |
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Section 6.6 |
Sale or Transfer of Assets; Suspension of Business Operations |
39 |
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Section 6.7 |
Consolidation and Merger; Asset Acquisitions |
39 |
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Section 6.8 |
Restrictions on Nature of Business |
39 |
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Section 6.9 |
Accounting |
40 |
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Section 6.10 |
Other Defaults |
40 |
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Section 6.11 |
Place of Business; Name |
40 |
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Section 6.12 |
Organizational Documents; Organizational Status |
40 |
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Section 6.13 |
Change in Ownership |
40 |
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Section 6.14 |
Payments on Subordinated Debt |
40 |
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Section 6.15 |
OFAC |
40 |
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| ARTICLE VII. Events of Default, Rights and Remedies |
41 |
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Section 7.1 |
Events of Default |
41 |
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Section 7.2 |
Rights and Remedies |
43 |
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Section 7.3 |
Certain Notices |
44 |
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| ARTICLE VIII. Miscellaneous |
44 |
US Bank/Park Dental
A&R Credit Agreement
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Section 8.1 |
No Waiver; Cumulative Remedies |
44 |
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Section 8.2 |
Amendments, Etc. |
44 |
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Section 8.3 |
Addresses for Notices, Etc. |
44 |
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Section 8.4 |
Further Documents |
45 |
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Section 8.5 |
Collateral |
45 |
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Section 8.6 |
Costs and Expenses |
46 |
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Section 8.7 |
Indemnity |
46 |
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Section 8.8 |
Successors and Assigns |
47 |
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Section 8.9 |
Setoff |
48 |
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Section 8.10 |
Execution in Counterparts |
48 |
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Section 8.11 |
Binding Effect; Assignment; Complete Agreement; Exchanging Information |
48 |
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Section 8.12 |
Severability of Provisions |
48 |
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Section 8.13 |
Headings |
48 |
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Section 8.14 |
Governing Law; Jurisdiction, Venue; Waiver of Jury Trial |
48 |
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Section 8.15 |
USA Patriot Act |
49 |
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Section 8.16 |
Document Imaging; Telecopy and PDF Signatures; Electronic Signatures |
49 |
US Bank/Park Dental
A&R Credit Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this
“Agreement”) is entered into as of March 27, 2024, by and among PDG, P.A., a Minnesota professional association (“PDG”),
DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company (“Dental Specialists”), and ORTHODONTIC
SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company (“OSM”), PARK DENTAL PARTNERS, INC.,
a Minnesota corporation (“Park Dental Partners”), THE FACIAL PAIN CENTER, PLLC, a Minnesota professional limited liability
company (“Facial PC”), and PDP MN, LLC, a Minnesota limited liability company (“PDP MN,” and individually,
collectively and jointly and severally with PDG, Dental Specialists, OSM, Park Dental Partners and Facial PC, the “Borrowers”
or the “Borrower”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association (the “Lender”).
RECITALS
WHEREAS, the Borrowers and the Lender entered
into that certain Credit Agreement dated as of March 16, 2015 (as the same has been amended from time to time, the “Existing
Credit Agreement”), concerning the extension by the Lender to the Borrowers of a revolving line of credit in the original principal
amount of up to $23,000,000 (the “Existing Revolving Loan”) and two (2) additional credit facilities which have subsequently
been paid off; and
WHEREAS, the obligation of the Borrowers to repay
amounts outstanding under the Existing Revolving Loan is currently evidenced by that certain Amended and Restated Revolving Note dated
as of October 24, 2023 (the “Existing Revolving Note”), executed by the Borrowers and payable to the Lender in the original
principal amount of $23,000,000; and
WHEREAS, as of the date hereof, the outstanding
principal balance of the Existing Revolving Note is $10,201,877.76, together with accrued interest thereon; and
WHEREAS, the Borrowers have requested the Lender
to reallocate a portion of the outstanding principal balance of the Existing Revolving Note into a new Term Loan as further described
in this Agreement, and Lender has agreed to the same on the terms and conditions contained herein.
NOW, THEREFORE, for valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Lender and the Borrowers hereby agree to amend and restate the Existing
Credit Agreement in its entirety as follows:
ARTICLE I.
Definitions
Section 1.1 Definitions.
For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have
the meanings assigned to them in this Article, and include the plural as well as the singular; and
US Bank/Park Dental
A&R Credit Agreement
(b) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP.
“Accordion” means each incremental increase to the
Maximum Line in accordance with Section 2.7 hereof.
“Accounts”
means all of the Borrowers’ accounts, as such term is defined in the UCC, including without limitation the aggregate unpaid obligations
of customers and other account debtors to the Borrowers arising out of the sale or lease of goods or rendition of services by the Borrowers
on an open account or deferred payment basis.
“Adjusted
EBITDAR” means, as of each Measurement Date and based on the immediately prior 12 months, Net Income before interest, taxes, depreciation
expense and amortization expense, plus 15% of Doctor Compensation (excluding benefits), plus non cash Deferred Compensation expense, minus
Deferred Compensation cash payments, plus operating lease expense.
“Administrative
Resource Agreements” means those certain Administrative Resource Agreements each dated as of October 1, 2023, by and among
Park Dental Partners, as “Manager,” and each of PDG, Dental Specialists and OSM.
“Advance”
has the meaning given in Section 2.1 hereof.
“Affiliate”
or “Affiliates” means any Person controlled by, controlling or under common control with the Borrowers, including (without
limitation) any Subsidiary of the Borrowers. For purposes of this definition, “control,” when used with respect to any specified
Person, means direct or indirect ownership of ten percent (10%) or more of any class of voting membership interests of the controlled
Person, or the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.
“Agreement”
means this Credit Agreement, as amended, supplemented or restated from time to time.
“Anti-Corruption
Laws” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, and any other
anti-corruption law applicable to the Borrowers and their Subsidiaries.
“Bank Products”
means any service or facility extended to Borrowers by Lender or any affiliate of Lender, or procured for Borrowers from any third party
by Lender or any affiliate of Lender by means of a full-recourse agreement or other credit support extended to such third party including:
(a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions,
(f) cash management, including controlled disbursement, accounts or services, (g) letters of credit, or (h) Hedging Agreements.
“Benchmark”
has the meaning given in Section 2.2(a) hereof.
US Bank/Park Dental
A&R Credit Agreement
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230.
“Board”
means the Board of Governors of the Federal Reserve System.
“Capital Lease”
means any lease of property which in accordance with GAAP is required to be capitalized on the balance sheet of the lessee.
“Capitalized
Lease Obligation” means, for any Person, the amount of the liability shown on the balance sheet of such Person in respect of a Capital
Lease determined in accordance with GAAP.
“Cash Collateralize”
means to deposit in the Letter of Credit Collateral Account or to pledge and deposit with or deliver to the Lender, as collateral for
Letter of Credit Obligations, cash or deposit account balances or, if the Lender agrees in its sole discretion, other credit support,
in each case pursuant to documentation in form and substance satisfactory to the Lender. “Cash Collateral” has a meaning correlative
to the foregoing and includes the proceeds of such cash collateral and other credit support.
“Cash Management
Services” means any banking services that are provided to any Borrower or any Subsidiary by the Lender, including without limitation:
(a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) stored value
cards, (f) freight payable transactions, (g) automated clearing house or wire transfer services, or (h) treasury management,
including controlled disbursement, consolidated account, lockbox, overdraft, return items, sweep and interstate depository network services.
“Change in
Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of
any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline
or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein
to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements,
or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines, requirements, or directives promulgated
by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,”
regardless of the date enacted, adopted or issued.
“Closing Date”
means the date of this Agreement.
US Bank/Park Dental
A&R Credit Agreement
“Collateral”
means all assets of each Borrower including, without limitation, Accounts (including, without limitation, health-care-insurance receivables),
chattel paper (including, without limitation, electronic chattel paper and tangible chattel paper), deposit accounts, documents, Equipment,
General Intangibles, goods, instruments, Inventory, Investment Property, letter-of-credit rights, letters of credit, patents,
patent rights, copyrights, trademarks, trade names, goodwill, royalty rights, franchise rights, license rights, software and payment intangibles;
together with (i) all substitutions and replacements for and products of any of the foregoing; (ii) proceeds of any and all
of the foregoing; (iii) in the case of all tangible goods, all accessions; (iv) all accessories, attachments, parts, equipment
and repairs now or hereafter attached or affixed to or used in connection with any tangible goods; (v) all warehouse receipts, bills
of lading and other documents of title now or hereafter covering such goods; (vi) all collateral subject to the lien of any Security
Document; (vii) any money, or other assets of the Borrowers, that now or hereafter come into the possession, custody or control of
the Lender; and (viii) all supporting obligations.
“Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Default”
means an event that, with giving of notice or passage of time or both, would constitute an Event of Default.
“Default Period”
means any period of time beginning on the first day of any month during which a Default or Event of Default has occurred and ending on
the date the Lender notifies the Borrowers in writing that such Default or Event of Default has been cured or waived.
“Default Rate”
means an annual rate equal to two percent (2.00%) in excess of the rate otherwise in effect on the Notes.
“Deferred
Compensation” means the obligations of the Borrowers as recognized in accordance with GAAP to recognize and pay deferred compensation
as described in the share or unit redemption agreements in effect from time to time.
“Doctor Compensation”
means cash compensation paid to doctors employed by or a member of each Borrower, including wages, guaranteed payments, Deferred Compensation,
incentive compensation, discretionary bonus and owner allocated bonus compensation.
“Enforcement
Costs” means all fees, costs and expenses described in Section 8.6 hereof paid or incurred by or on behalf of Lender.
“Equipment”
means all of the Borrowers’ equipment, as such term is defined in the UCC, whether now owned or hereafter acquired, including but
not limited to all present and future machinery, vehicles, furniture, fixtures, manufacturing equipment, shop equipment, office and recordkeeping
equipment, parts, tools, supplies, and including specifically (without limitation) the goods described in any equipment schedule or list
herewith or hereafter furnished to the Lender by the Borrowers.
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A&R Credit Agreement
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“E-SIGN”
means the Federal Electronic Signatures in Global and National Commerce Act, as amended from time to time, and any successor statute,
and any regulations promulgated thereunder from time to time.
“Event of
Default” has the meaning specified in Section 7.1 hereof.
“Excluded
Swap Obligation” means, with respect to a Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guarantee
of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guarantee thereof)
is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an
“eligible contract participant” as defined in the Commodity Exchange Act at the time the guarantee of or grant of security
interest by such Loan Party becomes effective with respect to such related Swap Obligation (such determination being made after giving
effect to any applicable keepwell, support, or other agreement for the benefit of the applicable Loan Party).
“Excluded
Taxes” means any of the following Taxes imposed on or with respect to the Lender or required to be withheld or deducted from a payment
to the Lender: Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case,
(a) imposed as a result of the Lender being organized under the laws of, or having its principal office or its applicable lending
office located in the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes.
“Fixed Charge
Coverage Ratio” means, as of each Measurement Date and based on the immediately prior 12-months, the ratio of (a) Adjusted
EBITDAR less cash taxes less cash dividends less maintenance capital expenditures defined as 50% of depreciation, to (b) operating
lease expense plus scheduled principal payments on all Indebtedness for Borrowed Money plus cash interest payments.
“Funding Date”
has the meaning given in Section 2.1(a) hereof.
“GAAP”
means generally accepted accounting principles, applied on a basis consistent with the accounting practices applied in the financial statements
delivered to Lender hereunder.
“General Intangibles”
means all of the Borrowers’ general intangibles, as such term is defined in the UCC, whether now owned or hereafter acquired, including
(without limitation) all present and future patents, patent applications, copyrights, trademarks, trade names, trade secrets, customer
or supplier lists and contracts, manuals, operating instructions, permits, franchises, the right to use the Borrowers’ name, and
the goodwill of the Borrowers’ business.
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A&R Credit Agreement
“Governmental
Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national
bodies such as the European Union or the European Central Bank).
“Hedging Agreement”
means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement
designed to protect a Person against fluctuations in interest rate, currency exchange rates or commodity prices.
“Hedging Obligation”
means, with respect to any Person, any liability of such Person under any Hedging Agreement. The amount of any Person’s obligations
in respect of any Hedging Obligation shall be deemed to be the incremental obligations that would be reflected in the financial statements
of such Person in accordance with GAAP.
“Indebtedness
for Borrowed Money” means for any Person (without duplication) (a) all indebtedness created, assumed or incurred in any manner
by such Person representing money borrowed (including by the issuance of debt securities), (b) all indebtedness for the deferred
purchase price of property or services (other than trade accounts payable arising in the ordinary course of business), (c) all indebtedness
secured by any lien upon property of such Person, whether or not such Person has assumed or become liable for the payment of such indebtedness,
(d) all Capitalized Lease Obligations of such Person, (e) all Swap Obligations, and (f) all obligations of such Person
on or with respect to letters of credit, bankers’ acceptances and other extensions of credit whether or not representing obligations
for borrowed money.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of the Borrowers under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee”
has the meaning given in Section 8.7 hereof.
“Inventory”
means all of the Borrowers’ inventory, as such term is defined in the UCC, whether now owned or hereafter acquired, whether consisting
of whole goods, finished goods, raw materials, spare parts or components, supplies or materials, whether acquired, held or furnished for
sale, for lease or under service contracts or for manufacture or processing, and wherever located.
“Investment
Property” means all of the Borrowers’ investment property, as such term is defined in the UCC, whether now owned or hereafter
acquired, including but not limited to all securities, security entitlements, securities accounts, commodity contracts, commodity accounts,
stocks, bonds, mutual fund shares, money market shares and U.S. Government securities.
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“Landlord
Waiver” means a landlord waiver executed by each landlord/owner of any Premises leased to any Borrower in form and substance acceptable
to the Lender in its discretion.
“Lease”
means each lease agreement between each landlord/owner of any Premises and any Borrower, or between PDG, as landlord, and any Tenant,
as the same may be hereafter amended, supplemented or restated from time to time.
“Letter of
Credit” means individually, a letter of credit, and collectively, all of the letters of credit, issued by the Lender for or on behalf
of the Borrowers pursuant to the terms of this Agreement.
“Letter of
Credit Collateral Account” has the meaning given in Section 2.1(b) hereof.
“Letter of
Credit Fee” has the meaning given in Section 2.1(b) hereof.
“Letter of
Credit Obligations” means the aggregate amount of all possible drawings under all Letters of Credit plus all amounts drawn under
any Letter of Credit and not reimbursed by the Borrowers.
“Loan Documents”
means this Agreement, the Notes, the Letters of Credit, the Security Documents, the Subordination Agreements, the Landlord Waivers and
any other document executed and/or delivered by the Borrowers in connection herewith, as the same may be amended, supplemented, or restated
from time to time.
“Loan Party”
means each Borrower, any guarantor and any third party pledgor, if any.
“Loans”
means the Term Loan and the Revolving Credit Facility.
“Material
Adverse Effect” means any of the following:
(i) a
material adverse effect on the business, operations, results of operations, assets, liabilities or financial condition of any of the Borrowers;
(ii) a
material adverse effect on the ability of any of the Borrowers to perform its obligations under the Loan Documents;
(iii) a
material adverse effect on the ability of the Lender to enforce the Obligations or to realize the intended benefits of the Security Documents,
including a material adverse effect on the validity or enforceability of any Loan Document or of any rights against any guarantor, or
on the status, existence, perfection, priority (subject to Permitted Liens) or enforceability of any lien securing payment or performance
of the Obligations; or
(iv) any
claim against any of the Borrowers or threat of litigation which if determined adversely to any of the Borrowers would cause any of the
Borrowers to be liable to pay an amount exceeding $500,000 over any insurance coverage or would be an event described in clauses (i),
(ii) and (iii) above.
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A&R Credit Agreement
“Material
Indebtedness” means Indebtedness for Borrowed Money of any Borrower or any Subsidiary in an outstanding principal amount of $500,000
or more in the aggregate (or the equivalent thereof in any currency other than Dollars). For purposes of this definition, the principal
amount of the obligations of any Borrower or any Subsidiary in respect of any Swap Obligation at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that any Borrower or such Subsidiary would be required to pay if such Swap Obligation
were terminated at such time.
“Maturity
Date” means (a) for the Term Note, the earlier of March 27, 2029, or the Revolving Credit Termination Date, and (b) for
the Revolving Note, March 27, 2027.
“Maximum Line”
means $15,000,000 subject to increase pursuant to Section 2.7 hereof up to a maximum amount of $25,000,000, unless said amount is
reduced pursuant to Section 2.6 hereof, in which event it means the amount to which said amount is reduced.
“Measurement
Date” means the last day of each fiscal quarter of each Borrower.
“Net Income”
means, with reference to any period, the net income (or net loss) of the Borrowers and their Subsidiaries for such period computed on
a consolidated basis in accordance with GAAP; provided that there shall be excluded from Net Income (a) the net income (or net loss)
of any Person accrued prior to the date it becomes a Subsidiary of, or has merged into or consolidated with, any of the Borrowers or another
Subsidiary, and (b) the net income (or net loss) of any Person (other than a Subsidiary) in which any of the Borrowers or any of
its Subsidiaries has an equity interest in, except to the extent of the amount of dividends or other distributions actually paid to any
of the Borrowers or any of its Subsidiaries during such period, unless prior written consent is provided by the Lender to include the
Net Income of a Subsidiary in connection with a Potential Acquisition.
“New York
Banking Day” means any day (other than a Saturday or Sunday) on which commercial banks are open for business in New York, New York.
“Notes”
means the Revolving Note and the Term Note.
“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Notes, all Letter of Credit Obligations, all obligations in connection
with Cash Management Services, all Hedging Obligations, all accrued and unpaid fees, and all expenses, reimbursements, indemnities and
other obligations of any Borrower to any Indemnitee arising under the Loan Documents (including interest and fees accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding);
provided that “Obligations” excludes all Excluded Swap Obligations.
“OFAC”
means the United States Department of Treasury Office of Foreign Assets Control.
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A&R Credit Agreement
“OFAC Event”
means the event specified in Section 5.16 hereof.
“OFAC Sanctions
Programs” means all laws, regulations, and Executive Orders administered by OFAC, including the Bank Secrecy Act, anti-money laundering
laws (including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001, Pub. L. 107-56 (a/k/a the USA Patriot Act)), and all economic and trade sanction programs administered by OFAC, any and all similar
United States federal laws, regulations or executive orders, and any similar laws, regulators or orders adopted by any State within the
United States.
“OFAC SDN
List” means the list of the Specially Designated Nationals and Blocked Persons maintained by OFAC.
“Organizational
Documents” means, collectively, the following documents each of which shall be in form and substance acceptable to the Lender.
(i) copies
of the Articles of Incorporation or Articles of Organization of each of the Borrowers, duly certified by the Secretary of State of the
State of Minnesota;
(ii) current
Certificates of Good Standing and current certificates of authority to transact business/own property in a foreign jurisdiction for each
of the Borrowers, duly issued by the Secretary of State of the State of Minnesota;
(iii) copies
of the Bylaws, Shareholder Agreements, Operating Agreements and Member Control Agreements of each of the Borrowers, duly certified by
an officer of each of the Borrowers; and
(iv) copies
of the written actions or resolutions of the board of directors or governors of each of the Borrowers, authorizing the execution, delivery
and performance of the Loan Documents, to which each of the Borrowers is a party, duly certified by an officer of each of the Borrowers.
“Other Connection
Taxes” means Taxes imposed as a result of a present or former connection between the Lender and the jurisdiction imposing such Tax
(other than connections arising from the Lender having executed, delivered, become a party to, performed its obligations under, received
payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document,
or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest
under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment.
“Participants”
has the meaning given in Section 8.8(c) hereof.
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A&R Credit Agreement
“PATRIOT Act”
means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Permitted
Liens” has the meaning given in Section 6.1 hereof.
“Person”
means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Plan”
means an employee benefit plan or other plan maintained for the Borrowers’ employees and covered by Title IV of ERISA.
“Potential
Acquisition” means any non-hostile acquisition of the ownership interests or assets of another Person engaged in the dental or orthodontic
professions and health care related services (the “Dental Business”).
“Premises”
means all premises where each of the Borrowers conducts its business and has any rights of possession, including without limitation the
premises described in Exhibit B attached hereto.
“Property”
means all property of a Person, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased
or operated by such Person.
“Rate Adjustment
Date” means the first day of each month.
“Regulation
U” means Regulation U of the Board or any other regulation or official interpretation of the Board relating to the extension of
credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.
“Reportable
Event” has the meaning assigned to that term in Title IV of ERISA.
“Revolving
Credit Facility” means the revolving credit facility being made available to the Borrowers by the Lender pursuant to Section 2.1(a) hereof.
“Revolving
Credit Termination Date” means the earliest of (i) the Maturity Date, (ii) the date the Borrowers terminate the Revolving
Credit Facility, or (iii) the date the Lender demands payment of the Obligations after an Event of Default pursuant to Section 7.2
hereof.
“Revolving
Note” means that certain Second Amended and Restated Revolving Note of even date herewith executed by the Borrowers and payable
to the order of the Lender in the original principal amount of $15,000,000 (subject to the Accordion) and any note or notes issued in
substitution therefor, as the same may hereafter be amended, supplemented or restated from time to time. The Revolving Note amends and
restates the Existing Revolving Note in its entirety.
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A&R Credit Agreement
“Sanctions”
means sanctions administered or enforced from time to time by the U.S. government, including those administered by OFAC, the U.S. Department
of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
“Security
Agreement” means that certain Amended and Restated Security Agreement of even date herewith executed by the Borrowers in favor of
the Lender, as the same may hereafter be amended, supplemented or restated from time to time.
“Security
Documents” means each document delivered to the Lender from time to time to secure the Obligations including, without limitation,
the Security Agreement, as the same may hereafter be amended, supplemented or restated from time to time.
“Security
Interest” means, collectively, the security interests and/or liens granted by the Borrowers to the Lender pursuant to the Security
Documents.
“Subordinated
Creditor” means the Subordinated Creditors listed on Schedule 6.2 attached hereto, and any other Person who enters into a Subordination
Agreement.
“Subordinated
Debt” means, at any date of determination, the aggregate outstanding principal balance of liabilities appearing on the Borrowers’
balance sheet at such date which are subordinated in right of payment to the Obligations on terms acceptable to the Lender in its discretion
pursuant to a Subordination Agreement.
“Subordination
Agreement” means each Subordination Agreement accepted by the Lender from time to time, as the same may hereafter be amended, supplemented
or restated from time to time.
“Subsidiary”
means any corporation or limited liability company of which more than fifty percent (50%) of the outstanding shares of capital stock or
membership interests having general voting power under ordinary circumstances to elect a majority of the board of directors or governors,
as the case may be of such corporation or limited liability company, as the case may be, irrespective of whether or not at the time stock
or membership interests of any other class or classes shall have or might have voting power by reason of the happening of any contingency,
is at the time directly or indirectly owned by any of the Borrowers, by any of the Borrowers and one or more other Subsidiaries, or by
one or more other Subsidiaries.
“Swap Obligation”
means, with respect to any of the Borrowers, any obligation to pay or perform under any agreement, contract or transaction that constitutes
a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as
amended from time to time, and any successor statute.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees
or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
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A&R Credit Agreement
“Tenant”
means each tenant under a Lease.
“Term Loan”
means the term loan made to the Borrowers by the Lender pursuant to Section 2.1(b) hereof.
“Term Note”
means that certain Term Note of even date herewith executed by the Borrowers and payable to the order of the Lender in the original principal
amount of $13,000,000, and any note or notes issued in substitution therefor, as the same may hereafter be amended, supplemented or restated
from time to time.
“Total Cash
Flow Leverage Ratio” means, as of each Measurement Date and based on the immediately prior 12-months, the ratio of (a) the
sum of all Indebtedness for Borrowed Money of the Borrowers plus six (6) times operating lease expense, to (b) Adjusted EBITDAR
for the Borrowers.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of Minnesota, or in any other state whose laws are held
to govern this Agreement or any portion hereof or the other Loan Documents.
“UETA”
means the Uniform Electronic Transactions Act as in effect in the State of Minnesota, as amended from time to time, and any successor
statute, and any regulations promulgated thereunder from time to time.
Section 1.2 Cross
References. All references in this Agreement to Articles, Sections and subsections, shall be to Articles, Sections and subsections
of this Agreement unless otherwise explicitly specified.
ARTICLE II.
Amount and Terms of the Revolving Credit Facility
and Term Loan
Section 2.1 Advances.
(a) Revolving
Credit Facility. The Lender agrees, on the terms and subject to the conditions herein set forth, to make Advances to the Borrowers
under the Revolving Credit Facility (each an “Advance”) from time to time from the date all of the conditions set forth in
Section 3.1 hereof are satisfied (the “Funding Date”) to the Revolving Credit Termination Date, in an aggregate amount
not to exceed at any time outstanding the Maximum Line. The Borrowers’ obligation to repay the Advances under this subsection shall
be evidenced by the Revolving Note and shall be secured pursuant to the Security Documents and by the Collateral. Within the limits set
forth in this subsection, the Borrowers may borrow, repay in accordance with the terms hereof and reborrow from the Revolving Credit Facility.
The Borrowers agree to comply with the following procedures in requesting Advances under this subsection:
(i) The
Borrowers shall make each request for an Advance to the Lender before 11:00 a.m. (Minneapolis time) of the day of the requested Advance.
Requests may be made in writing, by facsimile, online or by telephone, specifying the date of the requested Advance and the amount thereof.
Each request shall be by (A) any officer of the Borrowers; (B) any person designated as the Borrowers’ agent by any officer
of the Borrowers in a writing delivered to the Lender; or (C) any person whom the Lender reasonably believes to be an officer of
the Borrowers or such a designated agent.
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A&R Credit Agreement
(ii) Upon
fulfillment of the applicable conditions set forth in Article III hereof, the Lender shall disburse the proceeds of the requested
Advance by crediting the same to the Borrowers’ demand deposit accounts maintained at the Lender unless the Lender and the Borrowers
shall agree in writing to another manner of disbursement. Upon the Lender’s request, the Borrowers shall promptly confirm each telephonic
request for an Advance by executing and delivering an appropriate confirmation certificate to the Lender. The Borrowers shall repay all
Advances even if the Lender does not receive such confirmation and even if the person requesting an Advance was not in fact authorized
to do so. Any request for an Advance, whether written or telephonic, shall be deemed to be a representation by the Borrowers that the
conditions set forth in Section 3.2 hereof have been satisfied as of the time of the request.
(b) Letter
of Credit Subfacility. At the request of the Borrowers, the Lender agrees to issue one or more Letters of Credit on behalf of the
Borrowers under the Revolving Credit Facility subject to satisfaction of all terms and conditions required by the Lender in connection
therewith (including, without limitation, containing expiry dates and accompanied by the execution and delivery of such Letter of Credit
applications and other documents and certificates as the Lender may require from time to time). The Borrowers agree to pay to the Lender
a Letter of Credit fee (the “Letter of Credit Fee”) in connection with each Letter of Credit issued hereunder in an amount
equal to two percent (2.00%) per annum of the face amount of such Letter of Credit. The Letter of Credit Fee with respect to a Letter
of Credit issued hereunder shall be payable quarterly in arrears of the date of issuance of such Letter of Credit and on each calendar
quarter thereafter until such Letter of Credit is terminated. Any Letter of Credit Fee paid hereunder shall be deemed fully earned and
non-refundable upon the payment thereof. Notwithstanding any other provision of the Revolving Note or any other documents delivered in
connection with the Revolving Credit Facility (the “Related Documents”), in no event will the Lender consider any request
for the issuance of a Letter of Credit if, after giving effect to the requested Letter of Credit:
(i) at
such time, the sum of the face amount of all outstanding Letters of Credit and all Advances exceeds the Maximum Line;
(ii) a
Default or Event of Default exists hereunder or would result from the issuance of the requested Letter of Credit
(iii) the
expiry date for the requested Letter of Credit would be later than twelve (12) months from its issuance date; or
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A&R Credit Agreement
(iv) the
aggregate face amount of all outstanding Letters of Credit, plus the requested Letter of Credit, would total an amount greater than $5,000,000.00.
The Borrowers agree to pay to the Lender
on demand:
(i) the
amount, if any, drawn on any Letter of Credit (whether drawn before, on, or, if in accordance with the law applicable to such Letter of
Credit, after its stated expiry date), and
(ii) interest
on all amounts referred to in (A)(1) below from the date of such draw until payment in full at a fluctuating rate per annum at all
times equal to the Default Rate. The Borrowers’ obligations under this paragraph shall survive the Revolving Credit Termination
Date.
(A) If
any change in any law or regulation or in the interpretation thereof by any court or administrative or governmental authority charged
with the administration thereof shall either (1) impose, modify or deem applicable any reserve, special deposit or similar requirement
against Letters of Credit issued by, or assets held by, or deposits in or for the account of, the Lender, or (2) impose on the Lender
any other condition regarding the Letters of Credit, and the result of any event referred to in clause (1) or (2) above
shall be to increase the cost to the Lender of issuing or maintaining the Letters of Credit (which increase in cost shall be determined
by the Lender’s reasonable allocation of the aggregate of such cost increases resulting from such event), the Borrowers agree to
immediately pay to the Lender, from time to time as specified by the Lender, additional amounts sufficient to compensate the Lender for
such increased cost.
(B) The
obligations of Borrowers shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof
under all circumstances including, without limitation, the following: (1) any lack of validity or enforceability of any Letter of
Credit or any other agreement relating thereto; or (2) the existence of any claim, setoff, defense or other rights that the Borrowers
may have at any time against any beneficiary (or any person holding through or on behalf of such beneficiary), whether in connection with
any Related Document or otherwise; or (3) any statement or any other document presented under any Letter of Credit proving to be
forged, fraudulent or invalid or any statement therein being untrue or inaccurate in any respect; or (iv) any other circumstance
or event whatsoever.
(C) The
Lender is authorized, but not obligated, to pay any draw presented under any Letter of Credit by charging any of the Borrowers’
accounts therefor, the sums so charged being evidenced by the Revolving Note as an Advance thereunder, whether or not the making of such
Advance causes an Event of Default. If any Letter of Credit shall be outstanding after the Revolving Credit Termination Date, the Borrowers
shall deliver cash collateral in the face amount of such Letter of Credit, to be held subject to subsection (D) hereof.
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(D) Upon
the occurrence of an Event of Default, the Lender shall be entitled to make an Advance under this Agreement, whether or not such Advance
exceeds the Maximum Line then in effect, in an amount equal to the aggregate amount of all outstanding Letters of Credit. The proceeds
of such Advance shall be deposited in an account established at and maintained with the Lender (the “Letter of Credit Collateral
Account”) and applied to the payment of any draws under the Letters of Credit as the same may be made. The Borrowers hereby assign
and pledge to the Lender, and grant the Lender a security interest in, the Letter of Credit Collateral Account and all monies and other
things of value, now or hereafter contained therein, and all proceeds thereof. In the event that there are proceeds remaining in the Letter
of Credit Collateral Account after the payments, expiration or termination of all Letters of Credit such remaining proceeds shall either
be applied to the payment of amounts outstanding hereunder or returned to the Borrowers, at the sole discretion of the Lender.
(c) Term
Loan. The Lender agrees, on the terms and subject to the conditions hereinafter set forth, to make the Term Loan to the Borrowers.
The Term Loan shall be evidenced by and repayable with interest in accordance with the Term Note and secured pursuant to the Security
Documents and by the Collateral.
Section 2.2 Principal;
Interest; Default Interest; Participations; Usury.
(a) Interest
– Revolving Note. Except as set forth in subsections (e) and (g) below, the outstanding principal balance of the Revolving
Note shall accrue interest at an annual rate equal to two percent (2.00%) plus the greater of (i) zero percent (0.0%) and (ii) the
one-month forward-looking term rate based on SOFR quoted by Lender from the Term SOFR Administrator’s Website (or other commercially
available source providing such quotations as may be selected by Lender from time to time) (“Term SOFR”), which shall be that
one-month Term SOFR rate in effect two New York Banking Days prior to the Rate Adjustment Date, adjusted for any reserve requirement and
any subsequent costs arising from a change in government regulation, and reset monthly on each Rate Adjustment Date; provided that if
the Term SOFR rate is not published on such New York Banking Day due to a holiday or other circumstance that Lender deems in its sole
discretion to be temporary, the applicable Term SOFR rate shall be the Term SOFR rate last published prior to such New York Banking Day.
If the initial advance on any facility to which this paragraph applies occurs other than on the Rate Adjustment Date, the initial one-month
Term SOFR rate shall be that one-month Term SOFR rate in effect two New York Banking Days prior to the later of (a) the immediately
preceding Rate Adjustment Date and (b) the Closing Date, which rate plus the percentage described above shall be in effect until
the next Rate Adjustment Date. If Term SOFR is replacing a different rate index for an existing facility, and if such replacement becomes
effective on a date other than the Rate Adjustment Date, the initial one-month Term SOFR rate hereunder shall be that one-month Term SOFR
rate in effect two New York Banking Days prior to the effective date of such replacement, which rate plus the percentage described above
shall be in effect until the next Rate Adjustment Date. The term “Term SOFR Administrator’s Website” means the website
or any successor source for Term SOFR identified by CME Group Benchmark Administration Ltd. (or a successor administrator of Term SOFR).
If Lender has determined in its sole discretion that (i) the administrator of Term SOFR, or any relevant agency or authority for
such administrator of Term SOFR (or any substitute index which replaces Term SOFR (Term SOFR or such replacement, the “Benchmark”),
has announced that such Benchmark will no longer be provided, (ii) any relevant agency or authority has announced that such Benchmark
is no longer representative, or (iii) any similar circumstance exists such that such Benchmark has become permanently unavailable
or ceased to exist, Lender will (x) replace such Benchmark with a replacement rate or (y) if any such circumstance applies to
fewer than all tenors of such Benchmark used for determining an interest period hereunder, discontinue the availability of the affected
interest periods. In the case of Term SOFR, such replacement rate will be Daily Simple SOFR. In the case of a replacement rate other than
Term SOFR, Lender may add a spread adjustment selected by the Lender, taking into consideration any selection or recommendation of a replacement
rate by any relevant agency or authority, and evolving or prevailing market practice. For purposes of this Agreement, (a) “SOFR”
means the secured overnight financing rate which is published by the Board of Governors of the Federal Reserve System (together with any
committees convened by the Board, the “Board”) and available at www.newyorkfed.org; and (b) “Daily Simple
SOFR” means a daily rate based on SOFR and determined by Lender in accordance with the conventions for such rate selected by Lender.
In connection with the selection and implementation of any such replacement rate, Lender may make any technical, administrative or operational
changes that Lender decides may be appropriate to reflect the adoption and implementation of such replacement rate. Without limitation
of the foregoing, in the case of a transition to Daily Simple SOFR, Lender will remove any option to select another rate that may change
or is reset on a daily basis, including, without limitation, Lender’s prime rate. Lender does not warrant or accept any responsibility
for the administration or submission of, or any other matter related to, Term SOFR or with respect to any alternative or successor rate
thereto, or replacement rate thereof, including without limitation whether any such alternative, successor or replacement rate will have
the same value as, or be economically equivalent to, Term SOFR. Lender’s internal records of applicable interest rates shall be
determinative in the absence of manifest error. Interest accrued on amounts outstanding under the Revolving Note shall be due and payable
in arrears on the first (1st) day of each calendar month, commencing on April 1, 2024, and shall be payable in full on the Revolving
Credit Termination Date.
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A&R Credit Agreement
(b) Interest
– Term Note. Except as set forth in subsections (e) and (g) below, the outstanding principal balance of the Term Note
shall accrue interest at an annual rate equal to two and ten hundredths percent (2.10%) plus the greater of (i) zero percent (0.0%)
and (ii) Term SOFR, which shall be that one-month Term SOFR rate in effect two New York Banking Days prior to the Rate Adjustment
Date, adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation, and reset monthly
on each Rate Adjustment Date; provided that if the Term SOFR rate is not published on such New York Banking Day due to a holiday or other
circumstance that Lender deems in its sole discretion to be temporary, the applicable Term SOFR rate shall be the Term SOFR rate last
published prior to such New York Banking Day. If the initial advance on any facility to which this paragraph applies occurs other than
on the Rate Adjustment Date, the initial one-month Term SOFR rate shall be that one-month Term SOFR rate in effect two New York Banking
Days prior to the later of (a) the immediately preceding Rate Adjustment Date and (b) the Closing Date, which rate plus the
percentage described above shall be in effect until the next Rate Adjustment Date. If Term SOFR is replacing a different rate index for
an existing facility, and if such replacement becomes effective on a date other than the Rate Adjustment Date, the initial one-month Term
SOFR rate hereunder shall be that one-month Term SOFR rate in effect two New York Banking Days prior to the effective date of such replacement,
which rate plus the percentage described above shall be in effect until the next Rate Adjustment Date. If Lender has determined in its
sole discretion that (i) the administrator of Term SOFR, or any relevant agency or authority for such administrator of Term SOFR
(or any substitute index which replaces Term SOFR) has announced that such Benchmark will no longer be provided, (ii) any relevant
agency or authority has announced that such Benchmark is no longer representative, or (iii) any similar circumstance exists such
that such Benchmark has become permanently unavailable or ceased to exist, Lender will (x) replace such Benchmark with a replacement
rate or (y) if any such circumstance applies to fewer than all tenors of such Benchmark used for determining an interest period hereunder,
discontinue the availability of the affected interest periods. In the case of Term SOFR, such replacement rate will be Daily Simple SOFR.
In the case of a replacement rate other than Term SOFR, Lender may add a spread adjustment selected by the Lender, taking into consideration
any selection or recommendation of a replacement rate by any relevant agency or authority, and evolving or prevailing market practice.
In connection with the selection and implementation of any such replacement rate, Lender may make any technical, administrative or operational
changes that Lender decides may be appropriate to reflect the adoption and implementation of such replacement rate. Without limitation
of the foregoing, in the case of a transition to Daily Simple SOFR, Lender will remove any option to select another rate that may change
or is reset on a daily basis, including, without limitation, Lender’s prime rate. Lender does not warrant or accept any responsibility
for the administration or submission of, or any other matter related to, Term SOFR or with respect to any alternative or successor rate
thereto, or replacement rate thereof, including without limitation whether any such alternative, successor or replacement rate will have
the same value as, or be economically equivalent to, Term SOFR. Lender’s internal records of applicable interest rates shall be
determinative in the absence of manifest error. Interest accrued on amounts outstanding under the Term Note shall be due and payable in
arrears on the first (1st) day of each calendar month, commencing on April 1, 2024, and shall be payable in full on the Maturity
Date.
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(c) Principal
- Revolving Note. The full amount of principal on the Revolving Note shall be due and payable on the Revolving Credit Termination
Date.
(d) Principal
- Term Note. Commencing as of April 1, 2024, and continuing on the first (1st) day of each month thereafter, the Borrowers shall
pay to the Lender equal consecutive monthly installments of principal on the Term Note in an amount equal to $154,761.90. The full amount
of principal plus accrued interest on the Term Note shall be due and payable on the earlier of the Revolving Credit Termination Date or
the Maturity Date.
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(e) Default
Interest Rate. At any time during any Default Period, in the Lender’s sole discretion and without waiving any of its other rights
and remedies, the principal amount outstanding from time to time on the Notes shall bear interest at the Default Rate, effective for any
periods designated by the Lender from time to time during that Default Period.
(f) Participations.
If any Person shall acquire a participation in the Advances or any of the Notes under this Agreement, the Borrowers shall be obligated
to the Lender to pay the full amount of all interest calculated under, along with all other fees, charges and other amounts due under
this Agreement, regardless if such Person elects to accept interest with respect to its participation at a lower rate than the rates provided
herein, or otherwise elects to accept less than its pro rata share of such fees, charges and other amounts due under this Agreement.
(g) Usury.
In any event no rate change shall be put into effect which would result in a rate greater than the highest rate permitted by law. Notwithstanding
anything to the contrary contained in any Loan Document, all agreements which either now are or which shall become agreements among the
Borrowers and the Lender are hereby limited so that in no contingency or event whatsoever shall the total liability for payments in the
nature of interest, additional interest and other charges exceed the applicable limits imposed by any applicable usury laws. If any payments
in the nature of interest, additional interest and other charges made under any Loan Document are held to be in excess of the limits imposed
by any applicable usury laws, it is agreed that any such amount held to be in excess shall be considered payment of principal hereunder,
and the indebtedness evidenced hereby shall be reduced by such amount so that the total liability for payments in the nature of interest,
additional interest and other charges shall not exceed the applicable limits imposed by any applicable usury laws, in compliance with
the desires of the Borrowers and the Lender. This provision shall never be superseded or waived and shall control every other provision
of the Loan Documents and all agreements between the Borrowers and the Lender, or their successors and assigns.
Section 2.3 Fees.
(a) [Intentionally
Deleted].
(b) Unused
Line Fee. The Borrowers hereby agree to pay to the Lender a non-use fee at the rate of twenty-hundredths of one percent (0.20%) per
annum on the average daily unused amount of the Revolving Credit Facility from the date hereof to and including the date on which such
facility is terminated, due and payable in arrears on the first (1st) day of each fiscal quarter of the Borrowers, commencing April 1,
2024, provided that any such fee remaining unpaid upon termination of the Revolving Credit Facility or acceleration of the Revolving Note
by the Lender pursuant to Section 7.2 hereof shall be due and payable on the date of such termination or acceleration.
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Section 2.4 Computation
of Interest and Fees. Interest accruing on the outstanding principal balance of the Notes and all fees hereunder outstanding from
time to time shall be computed on the basis of actual number of days elapsed in a year of 360 days.
Section 2.5 Intentionally
Deleted.
Section 2.6 Voluntary
Prepayment; Reduction of the Maximum Line; Termination of the Revolving Credit Facility by the Borrowers. Except as otherwise provided
herein, the Borrowers may prepay the Advances in whole at any time or from time to time in part without penalty or premium. The Borrowers
may prepay the Term Note, terminate the Revolving Credit Facility or reduce the Maximum Line at any time if they give the Lender at least
five (5) days’ prior written notice. If the Borrowers reduce the Maximum Line to zero ($0), all Obligations shall be immediately
due and payable. Any partial prepayments of the Term Note shall be applied to principal payments due and owing in inverse order of their
maturities. Upon termination of the Revolving Credit Facility and payment and performance of all Obligations (other than Obligations
then outstanding and arising under (a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase
cards, (e) ACH transactions, and (f) cash management services which constitute Bank Products), the Lender shall release or
terminate the Security Interest and the Security Documents to which the Borrowers are entitled by law.
Section 2.7 Accordion.
At any time prior to the Revolving Credit Termination Date, and so long as no Default or Event of Default has occurred and is then outstanding,
the Borrowers shall have the right to request in writing an increase in the Maximum Line in the aggregate principal amount of up to $10,000,000,
provided that no more than five (5) requests shall be permitted hereunder. Such notice shall set forth (i) the amount of the
Accordion being requested (which shall be in minimum increments of $2,000,000 or such lesser amount equal to the remaining permitted
amount under the Maximum Line), (ii) the date on which such Accordion is requested to become effective (which shall not be less
than fifteen (15) business days nor more than thirty (30) business days after the date of such notice). The terms and provisions
of each Accordion and Advances made thereunder shall be identical to the then existing Revolving Credit Facility. The request shall be
granted if the Lender consents in its sole discretion and then only upon receipt and approval by the Lender of (w) an amended and
restated promissory note, (x) an amendment agreement, (y) a current certificate of good standing for each Borrower and a (z) borrowing
resolution or written action authorizing the Accordion, all in form and substance acceptable to the Lender.
Section 2.8 Mandatory
Prepayment. Without notice or demand, if the sum of the outstanding principal balance of the Advances under the Revolving Credit
Facility shall at any time exceed the Maximum Line, then, in any such case, the Borrowers shall immediately prepay the Revolving Note
to the extent necessary to eliminate such excess, and if such prepayment is insufficient to eliminate such excess, the Borrowers shall
pay to the Lender in immediately available funds an amount equal to the remaining excess. Any payment received by the Lender under this
Section or under Section 2.9 hereof may be applied to the Obligations, in such order and in such amounts as the Lender, in
its discretion, may from time to time determine.
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A&R Credit Agreement
Section 2.9 Payment.
Notwithstanding anything to the contrary contained herein or in the Note, the Borrowers shall make payments of interest on and principal
of the Notes and all payments to the Lender with respect to other fees, costs and expenses payable under any of the Loan Documents in
immediately available funds to the Lender at its address set forth herein without setoff or counterclaim. The Borrowers authorize the
Lender to charge from time to time against the Borrowers’ accounts with the Lender any such payments when due and the Lender will
use its reasonable efforts to notify the Borrowers of such charges. Notwithstanding anything to the contrary in Section 2.1 hereof,
the Borrowers hereby authorize the Lender, in its discretion at any time or from time to time without the Borrowers’ request and
even if the conditions set forth in Section 3.2 hereof would not be satisfied, to make an Advance in an amount equal to the portion
of the Obligations from time to time due and payable. Each payment received by the Lender may be applied to the Obligations in such order
of application as the Lender, in its sole and absolute discretion, may elect.
Section 2.10 Payment
on Non-Banking Days. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a New York Banking
Day, such payment may be made on the next succeeding New York Banking Day, and such extension of time shall in such case be included
in the computation of interest on the Advances or the fees hereunder, as the case may be.
Section 2.11 Use
of Proceeds. The Borrowers shall use the proceeds of the Notes as follows: (a) proceeds of the Term Note shall refinance certain
existing indebtedness under the Revolving Credit Facility and also for any other lawful corporate purpose, and (b) proceeds the
Revolving Note shall be for working capital purposes, to finance capital expenditures and for any other lawful corporate purpose including
for Potential Acquisitions. Notwithstanding anything to the contrary contained herein, the Borrowers may not distribute or otherwise
loan any proceeds of the Notes to any Subsidiary or any Affiliate that is not a Borrower.
Section 2.12 Liability
Records. The Lender may maintain from time to time, at its discretion, liability records as to the Obligations. All entries made
on any such record shall be presumed correct until the Borrowers establish the contrary. Upon the Lender’s demand, the Borrowers
will admit and certify in writing the exact principal balance of the Obligations that the Borrowers then assert to be outstanding. Any
billing statement or accounting rendered by the Lender shall be conclusive and fully binding on the Borrowers unless the Borrowers give
the Lender specific written notice of exception within thirty (30) days after receipt.
Section 2.13 Increased
Costs.
(a) Increased
Costs Generally. If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended or participated in by, the Lender;
(ii) subject
the Lender to any Taxes (other than (A) Indemnified Taxes and (B) Connection Income Taxes) on its loans, loan principal, letters
of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
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A&R Credit Agreement
(iii) impose
on the Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or any Loan
or any Letter of Credit,
and the result of any of the foregoing shall be
to increase the cost to the Lender of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make
any Advance, or to increase the cost to the Lender of issuing or maintaining any Letter of Credit (or of maintaining its obligation to
issue any Letter of Credit), or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal,
interest or any other amount), then, upon request of the Lender, the Borrowers will pay to the Lender such additional amount or amounts
as will compensate the Lender for such additional costs incurred or reduction suffered.
(b) Capital
Requirements. If the Lender determines that any Change in Law affecting the Lender or any lending office of the Lender or the Lender’s
holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on the
Lender’s capital or on the capital of the Lender’s holding company, if any, as a consequence of this Agreement, the Revolving
Credit Facility, the Term Loan or the Letters of Credit, to a level below that which the Lender or the Lender’s holding company
could have achieved but for such Change in Law (taking into consideration the Lender’s policies and the policies of the Lender’s
holding company with respect to capital adequacy), then from time to time the Borrowers will pay to the Lender such additional amount
or amounts as will compensate the Lender or the Lender’s holding company for any such reduction suffered.
Section 2.14 Certificates
for Reimbursement; Delay in Requests. A certificate of the Lender setting forth the amount or amounts necessary to compensate the
Lender or its holding company, as the case may be, as specified in Section 2.13 and delivered to the Borrowers shall be conclusive
absent manifest error. The Borrowers shall pay the Lender the amount shown as due on any such certificate within ten (10) days after
receipt thereof. Failure or delay on the part of the Lender to demand compensation pursuant to Section 2.13 shall not constitute
a waiver of the Lender’s right to demand such compensation; provided that the Borrowers shall not be required to compensate
the Lender pursuant to Section 2.13 for any increased costs incurred or reductions suffered more than nine months prior to the date
that the Lender notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions, and of the Lender’s
intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
Section 2.15 SOFR
Unavailability. If SOFR becomes unavailable or ceases to exist, the Lender may, in its discretion, designate a successor to SOFR
(which may include a successor index and a spread adjustment). In connection with the selection and implementation of any such replacement
rate, the Lender may make any technical, administrative or operational changes that the Lender decides may be appropriate to reflect
the adoption and implementation of such replacement rate. The Lender does not warrant or accept any responsibility for the administration
or submission of, or any other matter related to, SOFR or with respect to any alternative or successor rate thereto, or replacement rate
thereof, including without limitation whether any such alternative, successor or replacement rate will have the same value as, or be
economically equivalent to, SOFR.
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Section 2.16 Taxes.
(a) Payments
Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without
deduction or withholding for any Taxes, except as required by applicable law. If any applicable law requires the deduction or withholding
of any Tax from any such payment, then the applicable Loan Party may make such deduction or withholding and shall timely pay the full
amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified
Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has
been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.16) the Lender receives
an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment
of Other Taxes by Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable
law or at the option of the Lender timely reimburse it for the payment of, any Other Taxes.
(c) Indemnification
by Loan Parties. The Loan Parties shall indemnify the Lender, within 10 days after demand therefor, for the full amount of any Indemnified
Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.16) payable or
paid by the Lender or required to be withheld or deducted from a payment to the Lender and any reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrowers by the Lender shall be conclusive absent
manifest error.
(d) Evidence
of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.16,
such Loan Party shall deliver to the Lender the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Lender.
(e) Treatment
of Certain Refunds. If the Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any
Taxes as to which it has been indemnified pursuant to this Section 2.16 (including by the payment of additional amounts pursuant
to this Section 2.16), it shall pay to the applicable Loan Party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section 2.16 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including
Taxes) of the Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).
Such Loan Party, upon the request of the Lender, shall repay to the Lender the amount paid over pursuant to this Section 2.16(e) (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) if the Lender is required to repay such refund
to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.16(e), in no event will the Lender be
required to pay any amount pursuant to this Section 2.16(e) the payment of which would place the Lender in a less favorable
net after-Tax position than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This
Section 2.16(e) shall not be construed to require the Lender to make available its Tax returns (or any other information relating
to its Taxes that it deems confidential) to any Loan Party or any other Person.
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(f) Survival.
Each party’s obligations under this Section 2.16 shall survive any assignment of rights by the Lender, the termination of the
Revolving Credit Facility and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 2.17 Lender
Statements; Survival of Indemnity. The Lender shall give notice to the Borrowers as to any amount due under Sections 2.13, 2.14,
or 2.16. Such notice shall set forth in reasonable detail the calculations upon which the Lender determined such amount and shall be
final, conclusive and binding on the Borrowers in the absence of manifest error. Unless otherwise provided herein, the Borrowers shall
pay the amount specified in such notice on demand.
ARTICLE III.
Conditions of Lending
Section 3.1 Conditions
Precedent to the Initial Advance and making of the Term Loan. The Lender’s obligation to make the initial Advance and the Term
Loan shall be subject to the condition precedent that the Lender shall have received all of the following, each in form and substance
satisfactory to the Lender:
(a) This
Agreement, properly executed by the Borrowers.
(b) The
Notes, properly executed by the Borrowers.
(c) A
covenant compliance certificate in the form attached hereto as Exhibit A properly completed and executed by the Borrowers,
and all relevant facts in reasonable detail to evidence, and the computations as to, whether or not the Borrowers are in compliance with
the requirements set forth in Sections 5.14 and 5.15 hereof.
(d) The
other Security Documents, properly executed by the parties thereto.
(e) Current
searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against
the Borrowers, (ii) no financing statements or assignments of patents, trademarks or copyrights have been filed and remain in effect
against the Borrowers except those financing statements and assignments of patents, trademarks or copyrights relating to Permitted Liens
or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Notes, they will deliver UCC releases and/or
terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Lender, and (iii) the Lender
has duly filed all financing statements necessary to perfect the Security Interest, to the extent the Security Interest is capable of
being perfected by filing.
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(f) The
Subordination Agreements, properly executed by the Subordinated Creditors.
(g) Copies
of the promissory notes evidencing the Subordinated Debt, including the promissory note in favor of Nick Swenson which is properly legended
as subject to the Subordination Agreement from Nick Swenson.
(h) The
Administrative Resources Agreements, duly executed by the parties thereto.
(i) Certificates
of the insurance required hereunder and under the Security Documents, with all hazard insurance containing a lender’s loss payable
endorsement for personal property in the Lender’s favor and with all liability insurance naming the Lender as an additional insured.
(j) An
incumbency certificate from an officer of each Borrower certifying as to (i) the resolutions of each Borrower’s directors and,
if required, shareholders, authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (ii) each
Borrower’s articles of incorporation or organization and bylaws or operating agreements, and (iii) the signatures of each Borrower’s
officers or agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including
Advance requests, on each Borrower’s behalf.
(k) The
Organizational Documents.
(l) At
least five (5) days before the Closing Date, if any Borrower qualifies as a “legal entity customer” under the Beneficial
Ownership Regulation, each Borrower shall have delivered a Beneficial Ownership Certification in relation to such Borrower.
(m) An
opinion of counsel for the Borrowers dated as of the date hereof.
(n) If
applicable, payoff letters from all appropriate lenders.
(o) Payment
of the fees and commissions due through the Closing Date and expenses incurred by the Lender through such date and required to be paid
by the Borrowers under Section 8.6 hereof, including all legal expenses incurred through the date of this Agreement.
(p) Such
other documents and information regarding the Borrowers as the Lender in its sole discretion may require.
Section 3.2 Conditions
Precedent to All Advances. The Lender’s obligation to make each Advance shall be subject to the further conditions precedent
that on such date:
(a) the
representations and warranties contained in Article IV are correct in all material respects on and as of the date of such Advance
as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date;
and
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(b) no
event has occurred and is continuing, or would result from such Advance, which constitutes a Default or an Event of Default.
ARTICLE IV.
Representations and Warranties
Each of the Borrowers represents and warrants
to the Lender as follows:
Section 4.1 Existence
and Power; Name; Chief Executive Office; Organizational Identification Number. PDG is a professional association, Dental Specialists
is a professional limited liability company, OSM is a professional limited liability company, Park Dental Partners is a corporation,
Facial PC is a professional limited liability company and PDP MN is a limited liability company, and each is duly organized, validly
existing and in good standing under the laws of the State of Minnesota and is duly licensed or qualified to transact business in all
jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing
or qualification necessary, except where the failure to do so would not have a Material Adverse Effect. Each of the Borrowers has all
requisite power and authority, corporate or otherwise, to conduct its business, to own its properties and to execute and deliver, and
to perform all of its obligations under, the Loan Documents to which it is a party. During their existence, the Borrowers have done business
solely under the names set forth in Schedule 4.1 attached hereto. The Borrowers’ chief executive offices and principal places of
business are located at the addresses set forth in Schedule 4.1 attached hereto, and all of the Borrowers’ records relating to
their business and the Collateral are kept at that location.
Section 4.2 Authorization
of Borrowing; No Conflict as to Law or Agreements. The execution, delivery and performance by the Borrowers of the Loan Documents
and the borrowings from time to time hereunder have been duly authorized by all necessary corporate or company action and do not and
will not (i) require any consent or approval of the Borrowers’ shareholders or members; (ii) require any authorization,
consent or approval by, or registration, declaration or filing with, or notice to, any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any third party, except such authorization, consent, approval, registration, declaration,
filing or notice as has been obtained, accomplished or given prior to the date hereof; (iii) violate any provision of any law, rule or
regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System) or of any order, writ,
injunction or decree presently in effect having applicability to the Borrowers or of the Borrowers’ organizational documents; (iv) result
in a breach of or constitute a default under any indenture or loan or credit agreement or any other material agreement, lease or instrument
to which any of the Borrowers is a party or by which it or its properties may be bound or affected; or (v) result in, or require,
the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature
(other than the Security Interest) upon or with respect to any of the properties now owned or hereafter acquired by the Borrowers.
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Section 4.3 Legal
Agreements. This Agreement constitutes and, upon due execution by the Borrowers, the other Loan Documents will constitute the legal,
valid and binding obligations of the Borrowers, enforceable against the Borrowers in accordance with their respective terms.
Section 4.4 Subsidiaries.
Except as set forth in Schedule 4.4 attached hereto, the Borrowers have no Subsidiaries.
Section 4.5 Financial
Condition; No Adverse Change. The Borrowers have heretofore furnished to the Lender audited financial statements for their fiscal
year ended 2022, and unaudited financial statements for the fiscal year-to-date period ended September 30, 2023, and those statements
fairly present the Borrowers’ financial condition on the dates thereof and the results of their operations and cash flows for the
periods then ended and were prepared in accordance with generally accepted accounting principles. Since the date of the most recent financial
statements, there has been no material adverse change in the Borrowers’ business, properties or condition (financial or otherwise).
Section 4.6 Litigation.
Except as disclosed in Schedule 4.6 attached hereto, there are no actions, suits or proceedings pending or, to the Borrowers’ knowledge,
threatened against or affecting any of the Borrowers or any Affiliate or the properties of any of the Borrowers or any Affiliate before
any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which, if determined
adversely to any of the Borrowers or any Affiliate, would have a Material Adverse Effect on any of the Borrowers or any Affiliate.
Section 4.7 Regulation
U. None of the Borrowers is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U), and no part of the proceeds of any Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock.
Section 4.8 Taxes.
The Borrowers and each Affiliate have paid or caused to be paid to the proper authorities when due all federal, state and local taxes
required to be withheld by each of them. The Borrowers and each Affiliate have filed all federal, state and local tax returns which to
the knowledge of the officers of the Borrowers or any Affiliate, as the case may be, are required to be filed, and the Borrowers, each
Affiliate have paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment
received by any of them to the extent such taxes have become due.
Section 4.9 Titles
and Liens. Each Borrower has good and marketable title to the Collateral and all other Property reflected in the latest financial
statements referred to in Section 4.5 hereof and all proceeds thereof, free and clear of all mortgages, security interests, liens
and encumbrances, except for Permitted Liens. No financing statement naming any of the Borrowers as debtor is on file in any office except
to perfect Permitted Liens and, on the Closing Date, liens held by Persons who have agreed in writing that upon receipt of proceeds of
the Notes, they will promptly file or otherwise deliver to Borrowers UCC releases and terminations of all mortgages, security interests,
liens and encumbrances in and to the Collateral satisfactory to Lender.
Section 4.10 [Intentionally
Deleted].
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A&R Credit Agreement
Section 4.11 Default.
Each of the Borrowers is in compliance with all provisions of all agreements, instruments, decrees and orders to which it is a party
or by which it or its property is bound or affected, the breach or default of which would have a Material Adverse Effect on the Borrowers.
Section 4.12 [Intentionally
Deleted].
Section 4.13 Submissions
to Lender. All financial and other information provided to the Lender by or on behalf of the Borrowers in connection with the Borrowers’
request for the loans contemplated hereby is true and correct in all material respects and, as to projections, valuations or proforma
financial statements, present a good faith opinion as to such projections, valuations and proforma condition and results.
Section 4.14 Financing
Statements. Each of the Borrowers has provided written authorization to the Lender to file financing statements sufficient when filed
to perfect the Security Interest and the other security interests created by the Security Documents. When such financing statements are
filed in the offices noted therein, the Lender will have a valid and perfected first priority security interests in and to the Collateral
and all other collateral described in the Security Documents which is capable of being perfected by filing financing statements. None
of the Collateral or other collateral covered by the Security Documents is or will become a fixture on real estate, unless a sufficient
fixture filing is in effect with respect thereto.
Section 4.15 Leases.
No Leases exist between PDG, as landlord, and any Tenant, as tenant. Borrowers are in compliance with all other Leases (between any Borrower
and each owner/landlord of the Premises) and no defaults exist thereunder. Borrowers shall use commercially reasonable efforts to deliver
to Lender within one hundred fifty days (150) of the date hereof, a Landlord Waiver for each Lease between any Borrower and each owner/landlord
of any Premises.
Section 4.16 Rights
to Payment. Each right to payment and each instrument, document, chattel paper and other agreement constituting or evidencing Collateral
is (or, in the case of all future Collateral, will be when arising or issued) the valid, genuine and legally enforceable obligation,
subject to no defense, setoff or counterclaim, of the account debtor or other obligor named therein or in the Borrowers’ records
pertaining thereto as being obligated to pay such obligation.
Section 4.17 Financial
Solvency. Both before and after giving effect to the transactions contemplated in the Loan Documents, none of the Borrowers nor any
Affiliate:
(a) was
or will be insolvent, as that term is used and defined in Section 101(32) of the United States Bankruptcy Code and Section 2
of the Uniform Fraudulent Transfer Act;
(b) has
unreasonably small capital or is engaged or about to engage in a business or a transaction for which any remaining assets of any of the
Borrowers or any Affiliate are unreasonably small;
(c) by
executing, delivering or performing its obligations under the Loan Documents or other documents to which it is a party or by taking any
action with respect thereto, intends to, nor believes that it will, incur debts beyond its ability to pay them as they mature;
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A&R Credit Agreement
(d) by
executing, delivering or performing its obligations under the Loan Documents or other documents to which it is a party or by taking any
action with respect thereto, intends to hinder, delay or defraud either its present or future creditors; and
(e) at
this time contemplates filing a petition in bankruptcy or for an arrangement or reorganization or similar proceeding under any law any
jurisdiction, nor, to the knowledge of the Borrowers, is the subject of any actual, pending or threatened bankruptcy, insolvency or similar
proceedings under any law of any jurisdiction.
Section 4.18 Anti-Corruption
Laws; Sanctions; Anti-Terrorism Laws. The Borrowers and their respective directors, officers, and employees and, to the knowledge
of the Borrowers, the agents of the Borrowers are in compliance with Anti-Corruption Laws and all applicable Sanctions in all material
respects. The Borrowers have implemented and maintain in effect policies and procedures designed to ensure compliance with Anti-Corruption
Laws and applicable Sanctions. None of the Borrowers nor any director, officer, employee, agent, or affiliate of any of the Borrowers
is an individual or entity that is, or is 50% or more owned (individually or in the aggregate, directly or indirectly) or controlled
by individuals or entities (including any agency, political subdivision or instrumentality of any government) that are (a) the target
of any Sanctions or (b) located, organized or resident in a country or territory that is the subject of Sanctions (at the time of
this Agreement, Crimea, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, and the so-called Luhansk
People’s Republic).
Section 4.19 Accuracy
of Information.(a) No
information, exhibit or report furnished by any Borrower or any Subsidiary to the Lender in connection with the negotiation of, or compliance
with, the Loan Documents contained any material misstatement of fact or omitted to state a material fact or any fact necessary to make
the statements therein not misleading. As of the Closing Date, the information included in any Beneficial Ownership Certification is
true and correct in all respects.
Section 4.20 Material
Agreements. No Borrower or any Subsidiary is a party to any agreement or instrument or subject to any charter or other organizational
restriction that could reasonably be expected to have a Material Adverse Effect. No Borrower or any Subsidiary is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions in (a) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect or (b) any agreement or instrument evidencing or governing
Material Indebtedness.
Section 4.21 Compliance
with Laws. Each Borrower and its Subsidiaries are in compliance in all material respects with all applicable Laws, orders and restrictions
of any Governmental Authority having jurisdiction over the conduct of their respective businesses or the ownership of their respective
Property.
Section 4.22 Ownership
of Properties. Except as set forth in Schedule 6.1, each Borrower and its Subsidiaries have good title, free of all Liens other than
Permitted Liens, to all of the Property reflected in each Borrower’s most recent consolidated financial statements provided to
the Lender as owned by each Borrower and its Subsidiaries.
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A&R Credit Agreement
Section 4.23 Plan
Assets; Prohibited Transactions. No Borrower is an entity deemed to hold “plan assets” within the meaning of 29 C.F.R.
§ 2510.3-101, as modified by Section 3(42) of ERISA, of an employee benefit plan (as defined in Section 3(3) of ERISA)
subject to Title I of ERISA or any plan (within the meaning of Section 4975 of the Code) subject to Section 4975 of the Code,
and neither the execution of this Agreement nor the borrowings hereunder give rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code. No Borrower is subject to any Law substantially similar to the prohibited
transaction provisions of Section 406 of ERISA or Section 4975 of the Code.
Section 4.24 Environmental
Matters. The Property and operations of each Borrower and its Subsidiaries are in material compliance with applicable environmental
laws, and none of the Borrowers and their Subsidiaries is subject to any liability under environmental laws that individually or in the
aggregate could reasonably be expected to result in material liability. No the Borrower or any Subsidiary has received any notice to
the effect that its Property or operations are not in material compliance with any of the requirements of applicable environmental laws
or are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of
any hazardous material, which non-compliance or remedial action could reasonably be expected to result in material liability.
Section 4.25 Investment
Company Act. No Borrower or any Subsidiary is an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940.
Section 4.26 Insurance.
Each Borrower maintains, and has caused each Subsidiary to maintain, insurance in compliance with the requirements under the Loan Documents.
Section 4.27 Subordinated
Indebtedness. The Obligations are senior Indebtedness for Borrowed Money entitled to the benefits of the subordination provisions
of all outstanding Subordinated Debt.
Section 4.28 Solvency.
(a) Immediately
after the consummation of the transactions to occur on the Closing Date and immediately following any Advances made on the Closing Date
and after giving effect to the application of the proceeds of such Advances, (i) the fair value of the assets of the Borrowers and
their Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, subordinated, contingent or otherwise,
of the Borrowers and their Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the Property of the Borrowers
and their Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of
the Borrowers and their Subsidiaries on a consolidated basis on their debts and other liabilities, subordinated, contingent or otherwise,
as such debts and other liabilities become absolute and matured; (iii) the Borrowers and their Subsidiaries on a consolidated basis
will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute
and matured; and (iv) the Borrowers and their Subsidiaries on a consolidated basis will not have unreasonably small capital with
which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted after
the Closing Date.
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A&R Credit Agreement
(b) The
Borrowers do not intend to, or to permit any Subsidiary to, and does not believe that it or any Subsidiary will, incur debts beyond its
ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it and the timing of
the amounts of cash to be payable on or in respect of its Indebtedness for Borrowed Money.
Section 4.29 No
Default. No Default or Event of Default has occurred and is continuing.
Section 4.30 Anti-Corruption
Laws; Sanctions. The Borrowers, their Subsidiaries and their respective directors, officers, and employees and, to the knowledge
of the Borrowers, the agents of the Borrowers and their Subsidiaries are in compliance with Anti-Corruption Laws and all applicable Sanctions
in all material respects. The Borrowers and its Subsidiaries have implemented and maintain in effect policies and procedures designed
to ensure compliance with Anti-Corruption Laws and applicable Sanctions. None of the Borrowers, any of their Subsidiaries or any director,
officer, employee, agent, or affiliate of the Borrowers or any of their Subsidiaries is an individual or entity that is, or is 50% or
more owned (individually or in the aggregate, directly or indirectly) or controlled by individuals or entities (including any agency,
political subdivision or instrumentality of any government) that are (a) the target of any Sanctions or (b) located, organized
or resident in a country or territory that is the subject of Sanctions (at the time of this Agreement, Cuba, Iran, North Korea,
Syria, Crimea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and the Kherson and Zaporizhzhia
regions of Ukraine).
Section 4.31 Force
Majeure. Since the date of the most recent financial statements referred to in Section 4.5 hereof, the business and Property
of the Borrowers and their Subsidiaries have not been affected in any way by any fire or other casualty, strike, lockout, or other labor
trouble, embargo, sabotage, confiscation, condemnation, riot, civil disturbance, activity of armed forces or act of God, in any case
that could reasonably be expected to have a Material Adverse Effect.
Section 4.32 Labor
Matters. There are no pending or threatened strikes, lockouts or slowdowns against the Borrowers or any Subsidiary that would reasonably
be expected to have a Material Adverse Effect. Neither the Borrowers or any Subsidiary has been or is in violation in any material respect
of applicable law dealing with labor matters that could reasonably be expected to have a Material Adverse Effect. All material payments
due from the Borrowers or any Subsidiary on account of wages and employee health and welfare insurance and other benefits (in each case,
except for de minimis amounts), have been paid or accrued as a liability on the books of the Borrowers or such Subsidiary. The consummation
of the transactions contemplated under the Loan Documents will not give rise to any right of termination or right of renegotiation on
the part of any union under any collective bargaining agreement to which the Borrowers or any Subsidiary is bound.
ARTICLE V.
Affirmative Covenants
US Bank/Park Dental
A&R Credit Agreement
So long as the Obligations shall remain unpaid,
or the Revolving Credit Facility shall remain outstanding, each of the Borrowers will comply with the following requirements, unless
the Lender shall otherwise consent in writing:
Section 5.1 Reporting
Requirements. The Borrowers will deliver, or cause to be delivered, to the Lender each of the following, which shall be in form and
detail acceptable to the Lender:
(a) as
soon as available and in any event within one hundred twenty (120) days after the end of each fiscal year of the Borrowers, the Borrowers’
audited financial statements from independent certified public accountants selected by the Borrowers and acceptable to the Lender, which
annual financial statements shall include the Borrowers’ balance sheet as at the end of such fiscal year and the related statements
of the Borrowers’ income, retained earnings and cash flows for the fiscal year then ended, prepared on a combined and combining
basis including schedules and to include any Affiliate, all in reasonable detail and stating in comparative form the figures for the
corresponding date and periods in the previous year prepared in accordance with GAAP, together with (i) copies of all management
letters prepared by such accountants; and (ii) a certificate of the chief financial officer of each of the Borrowers, substantially
in the form of Exhibit A hereto stating (A) that such financial statements have been prepared in accordance with GAAP,
subject to year-end audit adjustments, (B) whether or not the officers have knowledge of the occurrence of any Default or Event
of Default hereunder not theretofore reported and remedied and, if so, stating in reasonable detail the facts with respect thereto, and
(C) all relevant facts in reasonable detail to evidence, and the computations as to, whether or not the Borrowers are in compliance
with the requirements set forth in Sections 5.14 and 5.15 hereof;
(b) as
soon as available and in any event by no later than forty five (45) days after the end of each fiscal quarter of the Borrowers, an unaudited/internal
balance sheet, statements of income and cash flows of the Borrowers for the year to date period then ended, prepared on a combined and
combining basis to include any Affiliate, in reasonable detail and stating in comparative form the figures for the corresponding date
and periods in the previous year, all prepared in accordance with GAAP, subject to year-end audit adjustments; and accompanied by a certificate
of the chief financial officer of each of the Borrowers, substantially in the form of Exhibit A hereto stating (i) that
such financial statements have been prepared in accordance with GAAP, subject to year-end audit adjustments, (ii) whether or not
the officers have knowledge of the occurrence of any Default or Event of Default hereunder not theretofore reported and remedied and,
if so, stating in reasonable detail the facts with respect thereto, and (iii) all relevant facts in reasonable detail to evidence,
and the computations as to, whether or not the Borrowers are in compliance with the requirements set forth in Sections 5.14 and 5.15
hereof;
(c) as
soon as available and in any event within sixty (60) days after the beginning of each fiscal year of the Borrowers, the projected combined
and combining income statement for the Borrowers for such fiscal year, identical to the projections used by the Borrowers for internal
planning purposes, together with supporting assumptions, schedules and information as the Lender may at its discretion require;
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A&R Credit Agreement
(d) immediately
after the commencement thereof, notice in writing of all litigation, and of all proceedings before any governmental or regulatory agency,
affecting any of the Borrowers of the type described in Section 4.6 hereof or which seek a monetary recovery against any of the
Borrowers in excess of $100,000;
(e) as
promptly as practicable (but in any event not later than five business days) after an officer of any of the Borrowers obtains knowledge
of the occurrence of any breach, default or event of default under any Loan Document or any event which constitutes a Default or Event
of Default hereunder, notice of such occurrence, together with a detailed statement by responsible officers of the Borrowers of the steps
being taken by the Borrowers to cure the effect of such breach, default or event;
(f) promptly
upon knowledge thereof, notice of any loss of or material damage to any Collateral or of any substantial adverse change in any Collateral
or the prospect of payment thereof;
(g) promptly
upon knowledge thereof, notice of the Borrowers’ violation of any law, rule or regulation, the non-compliance with which could
materially and adversely affect the Borrowers’ business or their financial condition;
(h) on
or promptly after any time at which any Borrower or any Subsidiary becomes subject to the Beneficial Ownership Regulation, a completed
Beneficial Ownership Certification in form and substance acceptable to the Lender; and
(i) from
time to time, with reasonable promptness, any and all receivables schedules, collection reports, deposit records, equipment schedules,
copies of invoices to account debtors, and such other material, reports, records or information as the Lender may reasonably request.
Section 5.2 Books
and Records; Inspection and Examination. Each of the Borrowers will keep accurate books of record and account for itself pertaining
to the Collateral and pertaining to the Borrowers’ business and financial condition and such other matters as the Lender may from
time to time request in which true and complete entries will be made in accordance with GAAP and, upon the Lender’s request, will
permit any officer, employee, attorney or accountant for the Lender to audit, review, make extracts from or copy any and all corporate
and financial books and records of the Borrowers at all times during ordinary business hours, to send and discuss with account debtors
and other obligors requests for verification of amounts owed to the Borrowers, and to discuss the Borrowers’ affairs with any of
their directors, officers, employees or agents. The Borrowers will permit the Lender, or its employees, accountants, attorneys or agents,
to examine and inspect each Premises and any Collateral of the Borrowers at any time during ordinary business hours.
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A&R Credit Agreement
Section 5.3 Account
Verification. During any Default Period, the Lender may at any time and from time to time send or require the Borrowers to send requests
for verification of accounts or notices of assignment to account debtors and other obligors. The Lender may also at any time and from
time to time telephone account debtors and other obligors to verify accounts.
Section 5.4 Compliance
with Laws.
(a) Each
of the Borrowers will (i) comply with the requirements of applicable laws and regulations, the non-compliance with which would materially
and adversely affect its business or its financial condition and (ii) use and keep the Collateral, and require that others use and
keep the Collateral, only for lawful purposes, without violation of any federal, state or local law, statute or ordinance. The Borrowers
will not themselves use, or allow any tenants or subtenants to use, any Premises for any activity that violates any federal or state
law.
(b) Without
limiting the foregoing undertakings, each of the Borrowers specifically agrees that it will comply in all material respects with all
applicable environmental laws and obtain and comply with all permits, licenses and similar approvals required by any environmental laws,
and will not generate, use, transport, treat, store or dispose of any hazardous substances in such a manner as to create any liability
or obligation under the common law of any jurisdiction or any environmental law.
Section 5.5 Payment
of Taxes and Other Claims. Each of the Borrowers will pay or discharge, when due, (a) all taxes, assessments and governmental
charges levied or imposed upon it or upon its income or profits, upon any properties belonging to it (including, without limitation,
any Collateral) or upon or against the creation, perfection or continuance of the Security Interest, prior to the date on which penalties
attach thereto, (b) all federal, state and local taxes required to be withheld by it, and (c) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien or charge upon any properties of either of the Borrowers; provided,
that the Borrowers shall not be required to pay any such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which proper reserves have been made.
Section 5.6 Maintenance
of Properties.
(a) Each
of the Borrowers will keep and maintain the Collateral and all of its other properties necessary or useful in its business in good condition,
repair and working order (normal wear and tear excepted) and will from time to time replace or repair any worn, defective or broken parts;
provided, however, that nothing in this Section shall prevent any of the Borrowers from discontinuing the operation and maintenance
of any of its properties if such discontinuance is, in the Borrower’s judgment (so long as such discontinuance would not have a
Material Adverse Effect), desirable in the conduct of the Borrowers’ business and not disadvantageous in any material respect to
the Lender.
(b) Each
of the Borrowers will defend the Collateral against all claims or demands of all Persons (other than the Lender) claiming the Collateral
or any interest therein.
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A&R Credit Agreement
(c) Each
of the Borrowers will keep all Collateral free and clear of all security interests, liens and encumbrances except Permitted Liens.
Section 5.7 Insurance.
The Borrowers will obtain and at all times maintain insurance with insurers believed by the Borrowers to be responsible and reputable,
in such amounts and against such risks as may from time to time be required by the Lender, but in all events in such amounts and against
such risks as is usually carried by companies engaged in similar business and owning similar properties in the same general areas in
which the Borrowers operate. Without limiting the generality of the foregoing, the Borrowers will at all times maintain business interruption
insurance including coverage for force majeure and keep all tangible Collateral insured against risks of fire (including so-called extended
coverage), theft, collision (for Collateral consisting of motor vehicles) and such other risks and in such amounts as the Lender may
reasonably request, with any loss payable to the Lender to the extent of its interest, and all policies of such insurance shall contain
a lender’s loss payable and mortgagee/loss payee endorsement, as the case may be, for the Lender’s benefit acceptable to
the Lender. All policies of liability insurance required hereunder shall name the Lender as an additional insured.
Section 5.8 Preservation
of Existence. Each of the Borrowers will preserve and maintain its existence and all of its rights, privileges and franchises necessary
or desirable in the normal conduct of its business and shall conduct its business in an orderly, efficient and regular manner.
Section 5.9 Delivery
of Instruments, etc. Upon request by the Lender, the Borrowers will promptly deliver to the Lender in pledge all instruments,
documents and chattel papers constituting Collateral and having a value individually or in the aggregate in excess of $50,000, duly endorsed
or assigned by the Borrowers.
Section 5.10 Performance
by the Lender. If any of the Borrowers at any time fails to perform or observe any of the foregoing covenants contained in this Article V
or elsewhere herein, and if such failure shall continue for a period of ten (10) calendar days after the Lender gives the Borrowers
written notice thereof (or in the case of the agreements contained in Sections 5.5 and 5.7 hereof, immediately upon the occurrence of
such failure, without notice or lapse of time), the Lender may, but need not, perform or observe such covenant on behalf and in the name,
place and stead of the Borrowers (or, at the Lender’s option, in the Lender’s name) and may, but need not, take any and all
other actions which the Lender may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment
of taxes, the satisfaction of security interests, liens or encumbrances, the performance of obligations owed to account debtors or other
obligors, the procurement and maintenance of insurance, the execution of assignments, security agreements and financing statements, and
the endorsement of instruments); and the Borrowers shall thereupon pay to the Lender on demand the amount of all monies expended and
all costs and expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Lender in connection with or as
a result of the performance or observance of such agreements or the taking of such action by the Lender, together with interest thereon
from the date expended or incurred at the Default Rate. To facilitate the Lender’s performance or observance of such covenants
of the Borrowers, each of the Borrowers hereby irrevocably appoints the Lender, or the Lender’s delegate, acting alone, as such
Borrowers’ attorney in fact (which appointment is coupled with an interest) with the right (but not the duty) from time to time
to create, prepare, complete, execute, deliver, endorse or file in the name and on behalf of the Borrowers any and all instruments, documents,
assignments, security agreements, financing statements, applications for insurance and other agreements and writings required to be obtained,
executed, delivered or endorsed by the Borrowers under this Section.
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A&R Credit Agreement
Section 5.11 Use
of Proceeds. Borrowers shall use the credit extended under this Agreement solely for the uses set forth in Section 2.11 hereof.
Section 5.12 Margin
Stock. Borrowers and any Subsidiary will not engage, principally or as one of its important activities, in the business of purchasing
or carrying margin stock or in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U), and no part of the proceeds of any Advance or the Term Loan or any other extension of credit made hereunder will be
used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin
stock.
Section 5.13 Operating
and Depository Accounts. On or before August 1, 2015, the Borrowers shall establish and thereafter maintain at all times all
of their primary depository and operating accounts at the Lender.
Section 5.14 Minimum
Fixed Charge Coverage Ratio. On each Measurement Date on a combined basis, the Borrowers shall achieve and maintain a Fixed Charge
Coverage Ratio of not less than 1.25 to 1.00.
Section 5.15 Total
Cash Flow Leverage Ratio. On each Measurement Date on a combined basis, the Borrowers shall achieve and maintain a Total Cash Flow
Leverage Ratio of not more than 3.50 to 1.00.
Section 5.16 [Intentionally
Deleted].
Section 5.17 Notice
of Material Events. Each Borrower will, and will cause each Subsidiary to, give notice to the Lender, promptly and in any event within
seven (7) days after an officer of any Borrower obtains knowledge thereof, of the occurrence of any of the following:
(i) any
Default or Event of Default;
(ii) (a) the
filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority (including pursuant to
any applicable Environmental Laws) against or affecting any Borrower or any Affiliate thereof that, if adversely determined, would reasonably
be expected to result in a Material Adverse Effect or that seeks to prevent, enjoin or delay any borrowings or (b) any material
adverse development in any litigation, arbitration or governmental investigation or proceeding previously disclosed by any Borrower or
any Subsidiary;
(iii) with
respect to a Plan, (a) any failure to pay all required minimum contributions and installments on or before the due dates provided
under Section 430(j) of the Code or (b) the filing pursuant to Section 412(c) of the Code or Section 302(c) of
ERISA, of an application for a waiver of the minimum funding standard;
(iv) the
occurrence of a Reportable Event;
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A&R Credit Agreement
(v) any
material change in accounting policies of, or financial reporting practices by, any Borrower or any Subsidiary;
(vi) material
alteration of, or reduction of the amount of coverage under, any insurance policy or policies required hereunder Section 5.7;
(vii) any
change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial
owners identified in parts (c) or (d) of such certification; and
(viii) any
other development, financial or otherwise, that would reasonably be expected to have a Material Adverse Effect.
Each notice delivered under this Section must
be accompanied by a statement of an officer of each Borrower setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.
ARTICLE VI.
Negative Covenants
So long as the Obligations shall remain unpaid,
or the Revolving Credit Facility shall remain outstanding, each of the Borrowers agrees that, without the Lender’s prior written
consent:
Section 6.1 Liens.
None of the Borrowers will create, incur or suffer to exist any mortgage, deed of trust, pledge, lien, security interest, assignment
or transfer upon or of any of its assets, now owned or hereafter acquired, to secure any indebtedness; excluding, however, from the operation
of the foregoing, the following (collectively, “Permitted Liens”):
(a) security
interests securing Subordinated Debt permitted under section 6.2(d) hereof;
(b) mortgages,
deeds of trust, pledges, liens, security interests and assignments in existence on the date hereof and listed in Schedule 6.1 attached
hereto, securing Indebtedness for Borrowed Money permitted under Section 6.2(b) hereof;
(c) the
Security Interest and liens and security interests created by the Security Documents;
(d) purchase
money security interests relating to the acquisition of machinery and equipment of the Borrowers not exceeding the lesser of cost or
fair market value thereof, individually and in the aggregate in an amount not to exceed $500,000 at any time, and so long as no Default
Period exists immediately before or after such acquisition;
(e) liens
for taxes or assessments or other governmental charges not yet due or being contested in good faith pursuant to Section 5.5 hereof;
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A&R Credit Agreement
(f) materialmen’s,
merchants’, carriers’, workmen’s, repairmen’s, or other like liens arising in the ordinary course of business
which secure amounts not overdue for a period of more than sixty (60) days or which are being contested in good faith by appropriate
proceedings and for which proper reserves have been made;
(g) any
interest or title of a lessor or sublessor under any operating lease;
(h) pledges
or deposits of cash and cash equivalent investments securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar
obligations to providers of insurance in the ordinary course of business and other Liens on unearned insurance premiums;
(i) judgment
liens and judicial attachment liens not constituting an Event of Default under Section 7.1(h) hereof; and
(j) pledges
or deposits to secure obligations under worker’s compensation laws, unemployment insurance and social security laws, or to secure
the performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases or to secure statutory obligations
or surety or appeal bonds, or to secure indemnity, performance or other similar bonds, in any case in the ordinary course of business.
Section 6.2 Indebtedness.
None of the Borrowers will incur, create, assume or permit to exist any indebtedness or liability on account of deposits or advances
or any Indebtedness for Borrowed Money or letters of credit issued on the Borrowers’ behalf, or any other indebtedness or liability
evidenced by notes, bonds, debentures or similar obligations, except:
(a) indebtedness
arising hereunder;
(b) except
as otherwise set forth in this Section 6.2, indebtedness of the Borrowers in existence on the date hereof and listed in Schedule
6.2 attached hereto;
(c) amounts
owing pursuant to Schedule E of that certain Contribution and Exchange Agreement dated on or about October 1, 2023; the maximum
amount of cash payments that may be made in any fiscal year for this Section 6.2(c) shall be equal to two percent (2.00%) of
the Borrowers’ consolidated adjusted gross revenue in such year;
(d) the
Subordinated Debt owing to the Subordinated Creditors (and extensions or replacements thereof that do not increase the principal amount
of any Subordinated Debt);
(e) unsecured
indebtedness which is subordinated in right of payment to the prior payment of the Obligations, in an aggregate amount not to exceed
$2,500,000 at any time, pursuant to subordination provisions approved in writing by the Lender and is otherwise pursuant to documentation
that is, and which contains interest rates, payment terms, maturities, amortization schedules, covenants, defaults, remedies and other
material terms that are, in each case, in form and substance satisfactory to the Lender; and
(f) indebtedness
relating to liens permitted in accordance with Section 6.1 hereof.
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A&R Credit Agreement
Section 6.3 Guaranties.
None of the Borrowers will assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations
of any other Person, except:
(a) the
endorsement of negotiable instruments by the Borrowers for deposit or collection or similar transactions in the ordinary course of business;
and
(b) guaranties,
endorsements and other direct or contingent liabilities in connection with the obligations of other Persons, in existence on the date
hereof and listed in Schedule 6.2 attached hereto.
Section 6.4 Investments
and Subsidiaries.
(a) Except
as permitted under Section 6.4(c) below, none of the Borrowers will purchase or hold beneficially any stock or other securities
or evidence of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever
in, any other Person, including specifically but without limitation any partnership or joint venture, except:
(i) investments
in direct obligations of the United States of America or any agency or instrumentality thereof whose obligations constitute full faith
and credit obligations of the United States of America having a maturity of one year or less, commercial paper issued by U.S. corporations
rated “A-1” or “A-2” by Standard & Poors Corporation or “P-1” or “P-2” by Moody’s
Investors Service or certificates of deposit or bankers’ acceptances having a maturity of one year or less issued by members of
the Federal Reserve System having deposits in excess of $100,000,000 (which certificates of deposit or bankers’ acceptances are
fully insured by the Federal Deposit Insurance Corporation);
(ii) advances
in the form of progress payments, prepaid rent not exceeding one (1) month or security deposits;
(iii) investments
in any Borrower and investments in Subsidiaries in existence on the Closing Date; and
(iv) a
Potential Acquisition involving the acquisition of the assets of a Person, without formation of a New Subsidiary (as defined in Section 6.4(b) below);
provided, however, that if the acquisition price for the Potential Acquisition is greater than $5,000,000 and a Borrower is financing
the same with cash (a “Potential Cash Acquisition”), such Borrower shall obtain the prior written consent of Lender for the
Potential Acquisition.
(b) Except
as permitted in Section 6.4(c) below, none of the Borrowers will form or acquire any Person which Person would thereby become
a Subsidiary (a “New Subsidiary”).
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A&R Credit Agreement
(c) Notwithstanding
anything to the contrary contained in Section 6.4(a) and Section 6.4(b) above, the Borrowers may form or acquire
a New Subsidiary in connection with a Potential Acquisition so long as all of the following conditions are satisfied on or before consummation
of the Potential Acquisition: (i) no Default or Event of Default has occurred (unless the same shall have been cured in accordance
with the provisions set forth herein or expressly waived in writing by the Lender) or would result from the Potential Acquisition, (ii) in
connection with a Potential Cash Acquisition, the Borrowers obtain Lender’s prior written consent if the acquisition price for
the Potential Acquisition is greater than $5,000,000, and (iii) the New Subsidiary, as determined by the Lender in its discretion,
either (A) becomes a co-borrower under this Agreement and the other Loan Documents, or (B) becomes a guarantor of all of the
Obligations and, in connection therewith, executes and delivers to the Lender such joinders, security agreements, financing statements,
pledge agreements, guaranties and other Loan Documents as the Lender may request to reflect its status as a new credit party to the transactions
contemplated hereby, and to evidence the Lender’s Lien on the Collateral (including any Collateral acquired pursuant to the Potential
Acquisition) and the perfection and priority of the Lender’s Security Interest in accordance with the terms hereof, and (C) provides
additional information and documentation regarding the Potential Acquisition as may be reasonably requested by the Lender at least thirty
(30) days prior to consummation of the Potential Acquisition.
Section 6.5 Dividends.
None of the Borrowers will declare or pay any dividends (other than dividends payable solely in equity interests of the Borrowers) (a
“Dividend”) on any class of its equity interests or make any payment on account of the purchase, redemption or other retirement
of any shares of such interests or make any distribution in respect thereof, either directly or indirectly if after giving effect to
such Dividend, the Borrowers fail to comply with the financial covenants set forth in Sections 5.14 and 5.15 hereof.
Section 6.6 Sale
or Transfer of Assets; Suspension of Business Operations. Without the prior written consent of the Lender, none of the Borrowers
will sell, lease, assign, transfer or otherwise dispose of (i) the equity interests of any Subsidiary, (ii) all or a substantial
part of its assets, or (iii) any Collateral or any interest therein (whether in one transaction or in a series of transactions)
to any Person, other than the sale of Inventory in the ordinary course of business or obsolete, worn or damaged Equipment in the ordinary
course of business (provided such Equipment is replaced with Equipment of equal or greater value), and will not liquidate, dissolve or
suspend business operations. None of the Borrowers will not in any manner transfer any property without prior or present receipt of full
and adequate consideration.
Section 6.7 Consolidation
and Merger; Asset Acquisitions. Without the prior written consent of the Lender, none of the Borrowers will consolidate with or merge
into any Person, or permit any other Person to merge into it, or acquire (in a transaction analogous in purpose or effect to a consolidation
or merger) all or substantially all the assets of any other Person, except in connection with a Potential Acquisition pursuant to the
requirements of Section 6.4 hereof.
Section 6.8 Restrictions
on Nature of Business. None of the Borrowers will engage in any line of business materially different from the Dental Business (as
such term is defined in the definition of Potential Acquisition) and will not purchase, lease or otherwise acquire assets not related
to the Dental Business.
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A&R Credit Agreement
Section 6.9 Accounting.
None of the Borrowers will adopt any material change in accounting principles other than as required by GAAP. None of the Borrowers will
adopt, permit or consent to any change in its fiscal year.
Section 6.10 Other
Defaults. None of the Borrowers will permit any breach, default or event of default to occur under any note, loan agreement, indenture,
lease, mortgage, contract for deed, security agreement or other contractual obligation binding upon any of the Borrowers or any Affiliate
which would have a Material Adverse Effect.
Section 6.11 Place
of Business; Name. None of the Borrowers will transfer its chief executive office or principal place of business, or move, relocate,
close or sell any business location. None of the Borrowers will permit any tangible Collateral or any records pertaining to the Collateral
to be located in any state or area in which, in the event of such location, a financing statement covering such Collateral would be required
to be, but has not in fact been, filed in order to perfect the Security Interest. None of the Borrowers will change its name.
Section 6.12 Organizational
Documents; Organizational Status. None of the Borrowers will (a) amend its articles of incorporation, articles of organization,
bylaws or operating agreement if such amendment would have a Material Adverse Effect or otherwise be adverse to Lender in any respect,
or (b) change its organizational status as a professional association, a corporation or a professional limited liability company,
as the case may be.
Section 6.13 Change
in Ownership. None of the Borrowers will issue or sell any equity interests of the Borrowers so as to change the percentage of voting
and non-voting equity interests owned by each of the Borrowers’ shareholders or members (a “Change of Control”), other
than a Change of Control of less than 20% of the outstanding ownership interests in any Borrower in any calendar year and of less than
50% of the outstanding ownership interests in any Borrower in the aggregate during the term of the Revolving Credit Facility, and none
of the Borrowers will permit or suffer to occur the assignment, pledge or other disposition of any or all of the issued and outstanding
equity interests of the Borrowers. As of the date hereof, the ownership of each Borrower is shown on Schedule 6.13 and each Borrower
shall provide an updated Schedule on each one (1) year anniversary of the date hereof and evidence of compliance with the above
covenant in connection therewith.
Section 6.14 Payments
on Subordinated Debt. The Borrowers shall make no payment on Subordinated Debt if, after giving effect to such payment, a Default
or Event of Default would occur hereunder, in each case except to the extent permitted under the Subordination Agreements with respect
to the Subordinated Debt. The Borrowers shall not refinance any of the Subordinated Debt with proceeds of the Notes unless approved by
Lender in writing.
Section 6.15 OFAC.
The Borrowers shall at all times comply with the requirements of all OFAC Sanctions Programs applicable to the Borrowers and shall cause
each of their Subsidiaries to comply with the requirements of all OFAC Sanctions Programs applicable to such Subsidiary. The Borrowers
shall provide Lender any information regarding Borrowers, their Affiliates, and their Subsidiaries necessary for the Lender to comply
with all applicable OFAC Sanctions Programs; subject however, in the case of Affiliates, to the Borrowers’ ability to provide information
applicable to them; If Borrowers obtain actual knowledge or receives any written notice that any of the Borrowers, any Affiliate or any
Subsidiary is named on the then current OFAC SDN List (such occurrence, an “OFAC Event”), the Borrowers shall promptly (i) give
written notice to the Lender of such OFAC Event, and (ii) comply with all applicable laws with respect to such OFAC Event (regardless
of whether the party included on the OFAC SDN List is located within the jurisdiction of the United States of America), including the
OFAC Sanctions Programs, and the Borrowers hereby authorize and consent to the Lender taking any and all steps the Lender deems necessary,
in its sole discretion, to avoid violation of all applicable laws with respect to any such OFAC Event, including the requirements of
the OFAC Sanctions Programs (including the freezing and/or blocking of assets and reporting such action to OFAC).
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A&R Credit Agreement
ARTICLE VII.
Events of Default, Rights and Remedies
Section 7.1 Events
of Default. “Event of Default,” wherever used herein, means any one of the following events:
(a) Default
in the payment of any of the Obligations when they become due and payable;
(b) Default
in the payment of any fees, commissions, costs or expenses required to be paid by any of the Borrowers under this Agreement;
(c) Default
in the performance, or breach, of any covenant or agreement of any of the Borrowers contained in this Agreement or in any other Loan
Document (subject to the expiration of any applicable grace or cure periods);
(d) Any
of the Borrowers or any Subsidiary shall be or become insolvent, or admit in writing its inability to pay its debts as they mature, or
make an assignment for the benefit of creditors; or any of the Borrowers or any Subsidiary shall apply for or consent to the appointment
of any receiver, trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or
similar officer shall be appointed without the application or consent of any of the Borrowers or any Subsidiary; or any of the Borrowers
or any Subsidiary shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction;
or any such proceeding shall be instituted (by petition, application or otherwise) against any of the Borrowers or any Subsidiary; or
any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the
property of any of the Borrowers or any Subsidiary;
(e) A
petition shall be filed by or against any of the Borrowers or any Subsidiary under the United States Bankruptcy Code naming any of the
Borrowers or any Subsidiary as debtor;
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A&R Credit Agreement
(f) Any
Material Adverse Effect occurs with respect to any of the Borrowers;
(g) Any
representation or warranty made by any of the Borrowers in this Agreement, or by any of the Borrowers (or any of its officers) in any
agreement, certificate, instrument or financial statement or other statement contemplated by or made or delivered pursuant to or in connection
with this Agreement or any such representation or warranty shall prove to have been incorrect in any material respect when deemed to
be effective;
(h) The
rendering against any of the Borrowers of a final judgment, decree or order for the payment of money in excess of $500,000 over the amount
of any insurance coverage and the continuance of such judgment, decree or order unsatisfied and in effect for any period of thirty (30)
consecutive days without a stay of execution;
(i) A
default under any bond, debenture, note or other evidence of indebtedness of any of the Borrowers owed to any Person other than the Lender
in excess of $250,000 individually or in the aggregate, or under any indenture or other instrument under which any such evidence of indebtedness
has been issued or by which it is governed, or under any lease of any of the Premises, and the expiration of the applicable period of
grace, if any, specified in such evidence of indebtedness, indenture, other instrument or lease;
(j) Any
Reportable Event, which the Lender determines in good faith might constitute grounds for the termination of any Plan or for the appointment
by the appropriate United States District Court of a trustee to administer any Plan, shall have occurred and be continuing thirty (30)
days after written notice to such effect shall have been given to any of the Borrowers by the Lender; or a trustee shall have been appointed
by an appropriate United States District Court to administer any Plan; or the Pension Benefit Guaranty Corporation shall have instituted
proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or any of the Borrowers shall have filed for a distress
termination of any Plan under Title IV of ERISA; or any of the Borrowers shall have failed to make any quarterly contribution required
with respect to any Plan under Section 412(m) of the Internal Revenue Code of 1986, as amended, which the Lender determines
in good faith may by itself, or in combination with any such failures that the Lender may determine are likely to occur in the future,
result in the imposition of a lien on either of the Borrowers’ assets in favor of the Plan;
(k) An
event of default shall occur under any of the other Loan Documents or under any other security agreement, mortgage, deed of trust, assignment
or other instrument or agreement securing any obligations of any of the Borrowers hereunder or under any note;
(l) Any
of the Borrowers shall liquidate, dissolve, terminate or suspend its or his business operations or otherwise fail to operate its business
in the ordinary course, or sell all or substantially all of its assets, without the Lender’s prior written consent;
(m) Any
of the Borrowers shall fail to pay, withhold, collect or remit any tax or tax deficiency when assessed or due (other than any tax deficiency
which is being contested in good faith and by proper proceedings and for which it shall have set aside on its books adequate reserves
therefor) or notice of any state or federal tax liens shall be filed or issued;
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A&R Credit Agreement
(n) Default
beyond any grace or cure period in the payment of any amount owed by any of the Borrowers to the Lender other than any indebtedness arising
hereunder;
(o) [intentionally
deleted];
(p) Any
of the Borrowers shall take or participate in any action which would be prohibited under the provisions of any Subordination Agreement
or make any payment on any Subordinated Debt that any Person was not entitled to receive under the provisions of the Subordination Agreement;
or
(q) Any
breach, default or event of default by or attributable to any Affiliate under any agreement between such Affiliate and the Lender.
Section 7.2 Rights
and Remedies. During any Default Period, the Lender may exercise any or all of the following rights and remedies:
(a) the
Lender may, by notice to the Borrowers, declare the Revolving Credit Facility to be terminated, whereupon the same shall forthwith terminate;
(b) the
Lender may, by notice to the Borrowers, declare the Obligations to be forthwith due and payable, whereupon all Obligations shall become
and be forthwith due and payable, without presentment, notice of dishonor, protest or further notice of any kind, all of which each of
the Borrowers hereby expressly waives;
(c) the
Lender may demand the Borrowers to, and the Borrowers shall, forthwith upon such demand and without any further notice or act, Cash Collateralize
the Letter of Credit Obligations at such time in an amount equal to 105% of the outstanding Letter of Credit Obligations plus any accrued
and unpaid interest thereon;
(d) the
Lender may apply any funds in the Letter of Credit Collateral Account to the payment of the Obligations and any other amounts as from
time to time become due and payable by the Borrowers to the Lender, as the Lender may decide in its sole discretion;
(e) while
any Event of Default is continuing, neither any Borrower nor any Person claiming on behalf of or through any Borrower may withdraw any
of the funds held in the Letter of Credit Collateral Account; and after the Obligations under this Agreement and the other Loan Documents
have been indefeasibly paid in full and the Revolving Credit Facility has been terminated, any funds remaining in the Letter of Credit
Collateral Account will be returned to the Borrowers or paid to whomever is legally entitled thereto;
(f) the
Lender may, without notice to the Borrowers and without further action, apply any and all money owing by the Lender to the Borrowers
to the payment of the Obligations;
(g) the
Lender may exercise and enforce any and all rights and remedies available upon default to a secured party under the UCC, including, without
limitation, the right to take possession of Collateral, or any evidence thereof, proceeding without judicial process or by judicial process
(without a prior hearing or notice thereof, which each of the Borrowers hereby expressly waives) and the right to sell, lease or otherwise
dispose of any or all of the Collateral, and, in connection therewith, each of the Borrowers will on demand assemble the Collateral and
make it available to the Lender at a place to be designated by the Lender which is reasonably convenient to both parties;
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A&R Credit Agreement
(h) the
Lender may exercise and enforce its rights and remedies under the Loan Documents; and
(i) the
Lender may exercise any other rights and remedies available to it by law or agreement.
Notwithstanding the foregoing, upon the occurrence
of an Event of Default described in subsections (d) or (e) of Section 7.1 hereof, the Obligations shall be immediately
due and payable automatically without presentment, demand, protest or notice of any kind, and the Borrowers shall be and become thereby
unconditionally obligated, without any further notice, act or demand, to Cash Collateralize the Letter of Credit Obligations at such
time in an amount equal to 105% of the outstanding Letter of Credit Obligations plus any accrued and unpaid interest thereon.
Section 7.3 Certain
Notices. If notice to the Borrowers of any intended disposition of Collateral or any other intended action is required by law in
a particular instance, such notice shall be deemed commercially reasonable if given (in the manner specified in Section 8.3) at
least ten (10) calendar days before the date of intended disposition or other action.
ARTICLE VIII.
Miscellaneous
Section 8.1 No
Waiver; Cumulative Remedies. No failure or delay by the Lender in exercising any right, power or remedy under the Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy under the Loan Documents. The remedies provided in the Loan
Documents are cumulative and not exclusive of any remedies provided by law.
Section 8.2 Amendments,
Etc. No amendment, modification, termination or waiver of any provision of any Loan Document or consent to any departure by the Borrowers
therefrom or any release of a Security Interest shall be effective unless the same shall be in writing and signed by the Lender, and
then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No notice
to or demand on the Borrowers in any case shall entitle the Borrowers to any other or further notice or demand in similar or other circumstances.
Section 8.3 Addresses
for Notices, Etc. Except as otherwise specified herein, all notices hereunder and under the other Loan Documents shall be in writing
(including notice by telecopy) and shall be given to the relevant party at its address or telecopier number set forth below, or such
other address or telecopier number as such party may hereafter specify by notice to the other given by courier, by United States certified
or registered mail, by telecopy or by other telecommunication device capable of creating a written record of such notice and its receipt.
Notices under the Loan Documents shall be addressed:
US Bank/Park Dental
A&R Credit Agreement
If to the Borrowers:
c/o Park Dental Group
2200 County Road C West, Suite 2210
Roseville, Minnesota 55113
Attention: Mr. Peter G. Swenson
and Dr. John E. Gulon, DDS
With a copy to:
Taft, Stettinius and Hollister LLP
2200 IDS Center
80 S. 8th Street
Minneapolis, Minnesota 55402
Attn: David Melloh, Esq.
If to the Lender:
U.S. Bank National Association
U.S. Bank Commercial Banking
800 Nicollet Mall, 3rd Floor
BC-MN-HO3W
Minneapolis, Minnesota 55402
Attention: Mr. Dan Miller
Each such notice, request or other communication
shall be effective (i) if given by mail, 5 days after such communication is deposited in the mail, certified or registered with
return receipt requested, addressed as aforesaid or (ii) if given by any other means, when delivered at the addresses specified
in this Section.
Section 8.4 Further
Documents. The Borrowers will from time to time execute and deliver or endorse any and all instruments, documents, conveyances, assignments,
security agreements, financing statements and other agreements and writings that the Lender may request in order to secure, protect,
perfect or enforce the Security Interest or the Lender’s rights under the Loan Documents (but any failure to request or assure
that each of the Borrowers executes, delivers or endorses any such item shall not affect or impair the validity, sufficiency or enforceability
of the Loan Documents and the Security Interest, regardless of whether any such item was or was not executed, delivered or endorsed in
a similar context or on a prior occasion).
Section 8.5 Collateral.
Neither this Agreement nor any of the Security Documents contemplate a sale of accounts, contract rights or chattel paper, and, as provided
by law, the Borrowers are entitled to any surplus and shall remain liable for any deficiency. The Lender’s duty of care with respect
to Collateral in its possession (as imposed by law) shall be deemed fulfilled if it exercises reasonable care in physically keeping such
Collateral, or in the case of Collateral in the custody or possession of a bailee or other third person, exercises reasonable care in
the selection of the bailee or other third person, and the Lender need not otherwise preserve, protect, insure or care for any Collateral.
The Lender shall not be obligated to preserve any rights the Borrowers may have against prior parties, to realize on the Collateral at
all or in any particular manner or order or to apply any cash proceeds of the Collateral in any particular order of application.
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A&R Credit Agreement
Section 8.6 Costs
and Expenses. Each of the Borrowers agrees to pay on demand all costs and expenses, including (without limitation) attorneys’
fees, incurred by the Lender in connection with the Obligations, this Agreement, the other Loan Documents and any other document or agreement
related hereto or thereto, and the transactions contemplated hereby, including without limitation all such costs, expenses and fees incurred
in connection with the negotiation, preparation, execution, amendment, administration, performance, collection and enforcement of the
Obligations and all such documents and agreements and the creation, perfection, protection, satisfaction, foreclosure or enforcement
of the Security Interest.
Section 8.7 Indemnity.
In addition to the payment of expenses pursuant to Section 8.6 hereof, each of the Borrowers agrees to indemnify, defend and hold
harmless the Lender, and any of its participants, parent corporations, subsidiary corporations, affiliated corporations, successor corporations,
and all present and future officers, directors, employees, attorneys and agents of the foregoing (the “Indemnitees”) from
and against any of the following (collectively, “Indemnified Liabilities”):
(a) any
and all transfer taxes, documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery
of the Loan Documents or the making of the Advances;
(b) any
claims, loss or damage to which any Indemnitee may be subjected if any representation or warranty contained in Section 4.12 hereof
proves to be incorrect in any respect or as a result of any violation of the covenant contained in Section 5.4(b) hereof; and
(c) any
and all other liabilities, losses, damages, penalties, judgments, suits, claims, costs and expenses of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel) in connection with the foregoing and any other investigative,
administrative or judicial proceedings, whether or not such Indemnitee shall be designated a party thereto, which may be imposed on,
incurred by or asserted against any such Indemnitee, in any manner related to or arising out of or in connection with the making of the
Advances and the Loan Documents or the use or intended use of the proceeds of the Notes, except to the extent that any event giving rise
to a claim was caused by the gross negligence or willful misconduct of the party seeking to be indemnified.
If any investigative, judicial or administrative
proceeding arising from any of the foregoing is brought against any Indemnitee, upon such Indemnitee’s request, the Borrowers,
or counsel designated by the Borrowers and satisfactory to the Indemnitee, will resist and defend such action, suit or proceeding to
the extent and in the manner directed by the Indemnitee, at the Borrowers’ sole costs and expense. Each Indemnitee will use its
best efforts to cooperate in the defense of any such action, suit or proceeding. If the foregoing undertaking to indemnify, defend and
hold harmless may be held to be unenforceable because it violates any law or public policy, the Borrowers shall nevertheless make the
maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
The Borrowers’ obligation under this Section shall survive the termination of this Agreement and the discharge of the Borrowers’
other obligations hereunder.
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A&R Credit Agreement
Section 8.8 Successors
and Assigns.
(a) Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of the Lender (and any other attempted assignment or transfer by any Borrower
shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 8.8(c) and,
to the extent expressly contemplated hereby, the related parties of the Lender) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) Assignments
by Lender. The Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of the Revolving Credit Facility and the Loans at the time owing to it).
(c) Participations.
The Lender may at any time, without the consent of, or notice to, the Borrowers, sell participations to any Person (each, a “Participant”)
in all or a portion of the Lender’s rights or obligations under this Agreement (including all or a portion of the Revolving Credit
Facility or the Loans); provided that (i) the Lender’s obligations under this Agreement shall remain unchanged, (ii) the
Lender shall remain solely responsible to the Borrower for the performance of such obligations, and (iii) the Borrowers shall continue
to deal solely and directly with the Lender in connection with this Agreement.
Each Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.13 and 2.16 (subject to the requirements and limitations therein) to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to Section 8.8(b); provided that such Participant shall
not be entitled to receive any greater payment under Sections 2.13 and 2.16, with respect to any participation, than the Lender would
have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs
after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 8.9 as though it were a Lender.
(d) Certain
Pledges. The Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of the Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment may release the Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for the Lender as a party hereto.
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A&R Credit Agreement
Section 8.9 Setoff.
Each Borrower hereby grants the Lender a security interest in all deposits, credits and deposit accounts (including all account balances,
whether provisional or final and whether or not collected or available) of each Borrower with the Lender or any Affiliate of the Lender
(the “Deposits”) to secure the Obligations. In addition to, and without limitation of, any rights of the Lender under applicable
law, if any Borrower becomes insolvent, however evidenced, or any Event of Default occurs, each Borrower authorizes the Lender and its
Affiliates to offset and apply all such Deposits toward the payment of the Obligations owing to the Lender, whether or not the Obligations,
or any part thereof, are contingent or unmatured or are owed to a branch office or Affiliate of the Lender different from the branch
office or Affiliate holding such Deposit and regardless of the existence or adequacy of any collateral, guaranty or any other security,
right or remedy available to the Lender.
Section 8.10 Execution
in Counterparts. This Agreement and other Loan Documents may be executed in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same
instrument.
Section 8.11 Binding
Effect; Assignment; Complete Agreement; Exchanging Information. The Loan Documents shall be binding upon and inure to the benefit
of the Borrowers and the Lender and their respective successors and assigns (except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by generally principles
of equity), except that the Borrowers shall not have the right to assign their rights thereunder or any interest therein without the
Lender’s prior written consent. This Agreement, together with the Loan Documents, comprises the complete and integrated agreement
of the parties on the subject matter hereof and supersedes all prior agreements, written or oral, on the subject matter hereof. Without
limiting the Lender’s right to share information regarding the Borrowers and any Affiliate with the Lender’s participants,
accountants, lawyers and other advisors, the Lender may exchange any and all information it may have in its possession regarding the
Borrowers or any Affiliate, and each of the Borrowers waives any right of confidentiality it may have with respect to such exchange of
such information.
Section 8.12 Severability
of Provisions. Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof.
Section 8.13 Headings.
Article and Section headings in this Agreement are included herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.
Section 8.14 Governing
Law; Jurisdiction, Venue; Waiver of Jury Trial. This Agreement and the other Loan Documents shall be governed by and construed in
accordance with the substantive laws (other than conflict laws) of the State of Minnesota. The parties hereto hereby (a) consents
to the personal jurisdiction of the state and federal courts located in the State of Minnesota and Wisconsin in connection with any controversy
related to this Agreement and the other Loan Documents; (b) waives any argument that venue in any such forum is not convenient,
(c) agrees that any litigation initiated by the Lender or the Borrowers in connection with this Agreement or the other Loan Documents
shall be venued in either the District Court of Hennepin County, Minnesota, or the United States District Court, District of Minnesota,
Fourth Division; and (d) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law. THE BORROWERS AND THE LENDER HEREBY WAIVE TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
US Bank/Park Dental
A&R Credit Agreement
Section 8.15 USA
Patriot Act. The Lender hereby notifies the Borrowers and each other Loan Party that, pursuant to the requirements of the PATRIOT
Act, it may be required to obtain, verify and record information that identifies such Loan Party, which information includes the name
and address of such Loan Party and other information that will allow the Lender to identify such Loan Party in accordance with the PATRIOT
Act.
Section 8.16 Document
Imaging; Telecopy and PDF Signatures; Electronic Signatures. Without notice to or consent of the Borrowers, the Lender may create
electronic images of any Loan Documents and destroy paper originals of any such imaged documents. Such images have the same legal force
and effect as the paper originals and are enforceable against the Borrowers and any other parties thereto. The Lender may convert any
Loan Document into a “transferrable record” as such term is defined under, and to the extent permitted by, UETA, with the
image of such instrument in the Lender’s possession constituting an “authoritative copy” under UETA. If the Lender
agrees, in its sole discretion, to accept delivery by telecopy or PDF of an executed counterpart of a signature page of any Loan
Document or other document required to be delivered under the Loan Documents, such delivery will be valid and effective as delivery of
an original manually executed counterpart of such document for all purposes. If the Lender agrees, in its sole discretion, to accept
any electronic signatures of any Loan Document or other document required to be delivered under the Loan Documents, the words “execution,”
“signed,” and “signature,” and words of like import, in or referring to any document so signed will deemed to
include electronic signatures and/or the keeping of records in electronic form, which will be of the same legal effect, validity and
enforceability as a manually executed signature and/or the use of a paper-based recordkeeping system, to the extent and as provided for
in any applicable law, including UETA, E-SIGN, or any other state laws based on, or similar in effect to, such acts. The Lender may rely
on any such electronic signatures without further inquiry.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
US Bank/Park Dental
A&R Credit Agreement
IN WITNESS WHEREOF, the parties
hereto have caused this Amended and Restated Credit Agreement to be executed by their respective officers thereunto duly authorized as
of the date first above written.
BORROWERS:
| PDG, P.A., a Minnesota professional association | |
ORTHODONTIC SPECIALISTS OF
MINNESOTA, PLLC, a Minnesota professional limited liability company |
| |
| |
|
|
| By: |
| |
By: |
|
| |
Christopher Steele, D.D.S. | |
|
Alan S. Law, D.D.S., PhD. |
| |
Its President | |
|
Its President |
| |
| |
|
|
| DENTAL SPECIALISTS OF
MINNESOTA, PLLC, a Minnesota professional limited liability company | |
PARK DENTAL
PARTNERS, INC., a Minnesota corporation |
| |
| |
|
|
| By: |
| |
By: |
|
| |
Alan S. Law, D.D.S., PhD. | |
|
Peter G. Swenson |
| |
Its President | |
|
Its Chief Executive Officer |
| |
| |
|
|
| THE FACIAL PAIN CENTER,
PLLC, a Minnesota professional limited liability company | |
PDP MN, LLC, a Minnesota
limited liability company |
| |
| |
|
|
| By: |
| |
By: |
|
| |
Christopher Steele, D.D.S. | |
|
Peter G. Swenson |
| |
Its President | |
|
Its Chief Executive Officer |
US Bank/Park Dental
A&R Credit Agreement
| |
|
LENDER: |
| |
|
|
| |
|
U.S. BANK NATIONAL ASSOCIATION, |
| |
|
a national banking association |
| |
|
|
| |
|
By: |
|
| |
|
|
Ed Surko |
| |
|
|
Its Vice President |
US Bank/Park Dental
A&R Credit Agreement
Table of Exhibits and Schedules
| Exhibit A | |
Compliance Certificate |
| | |
|
| Exhibit B | |
Premises |
___________________________
| Schedule 2.2(c) | |
Intentionally Deleted |
| | |
|
| Schedule 4.1 | |
Trade Names, Chief Executive Office, Principal Place of Business, and Locations of Collateral |
| | |
|
| Schedule 4.4 | |
Subsidiaries |
| | |
|
| Schedule 4.6 | |
Litigation |
| | |
|
| Schedule 6.1 | |
Permitted Liens |
| | |
|
| Schedule 6.2 | |
Permitted Indebtedness and Guaranties |
| | |
|
| Schedule 6.13 | |
Organizational/Ownership Chart |
Exhibit A to A&R
Credit Agreement
EXHIBIT A
COMPLIANCE
CERTIFICATE
To: U.S.
Bank National Association
Date: ___________
In accordance with our Amended
and Restated Credit Agreement dated as of March __, 2024 (as the same has been amended from time to time, the “Credit Agreement”),
attached are the financial statements of PDG, P.A., a Minnesota professional association, DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota
professional limited liability company, ORTHODONTIC SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company,
PARK DENTAL PARTNERS, INC., a Minnesota corporation, THE FACIAL PAIN CENTER, PLLC, a Minnesota professional limited liability company,
and PDP MN, LLC, a Minnesota limited liability company (collectively, the “Borrowers”) as of and for _________, 20___ (the
“Reporting Date”) and the year-to-date period then ended (the “Current Financials”). Unless otherwise defined
herein, all terms used in this certificate have the meanings given in the Credit Agreement.
I certify that the Current
Financials have been prepared in accordance with GAAP, subject to year-end audit adjustments, and fairly present the Borrowers’
financial condition and the results of their operations as of the date thereof and for the fiscal year-to-date period then ended.
Events of Default.
(Check one):
| ¨ | The undersigned does not have knowledge of the
occurrence of a Default or Event of Default under the Credit Agreement. |
| ¨ | The undersigned has knowledge of the occurrence
of a Default or Event of Default under the Credit Agreement and attached hereto is a statement of the facts with respect to thereto. |
I hereby further certify to the Lender
as follows:
1. Minimum
Fixed Charge Coverage Ratio. Pursuant to Section 5.14 of the Credit Agreement, as of the Reporting Date, the Borrowers’
Fixed Charge Coverage Ratio was __ to 1.00 which ¨ satisfies
¨ does not satisfy the
required minimum ratio of 1.25 to 1.00 as of each Measurement Date, based on the immediately prior 12-months.
2. Total
Cash Flow Leverage Ratio. Pursuant to Section 5.15 of the Credit Agreement, as of the Reporting Date, the Borrowers’ Total
Cash Flow Leverage Ratio was __ to 1.00 which ¨ satisfies
¨ does not satisfy the
required maximum ratio of 3.50 to 1.00 as of each Measurement Date.
Attached hereto are all relevant
facts in reasonable detail to evidence, and the computations of the financial covenants referred to above. These computations were made
in accordance with GAAP.
Exhibit A to A&R Credit Agreement
Attached hereto are all relevant
facts in reasonable detail to evidence, and the computations of the financial covenants referred to above. These computations were made
in accordance with GAAP.
| By: |
|
|
| |
CJ Bernander |
|
| |
Chief Financial Officer of the Borrowers |
|
Exhibit B to A&R Credit Agreement
EXHIBIT B
Premises
See Schedule 4.1
Schedule 2.2(c) to A&R Credit Agreement
SCHEDULE 2.2(c)
Intentionally Deleted
Schedule 2.2(c)
Schedule 4.1 to A&R Credit Agreement
SCHEDULE 4.1
Trade Names, Chief Executive Office, Principal
Place of Business, and Locations of Collateral
Trade Names
PDG, P.A. (legal name)
Dental Specialists of Minnesota, PLLC (legal
name)
Orthodontic Specialists of Minnesota, PLLC (legal
name)
Park Dental Partners, Inc. (legal name)
PDG Northern Minnesota, PLLC (legal name)
The Facial Pain Center, PLLC (legal name)
PDP MN, LLC (legal name)
Apollo Dental Center
Becker Family Dentistry
Central Minnesota Endodontics
Downtown Dental Care of Duluth
Endodontic Specialists
Greenview Cosmetic and Family Dentistry
Park Dental Albertville-St. Michael
Park Dental Apple River
Park Dental Apple Valley
Park Dental Bailey Road
Park Dental Big Lake
Park Dental Blaine
Park Dental Blaine East
Park Dental Bloomington
Park Dental BlueStone
Park Dental Brookpark
Park Dental Cedar Valley
Park Dental Champlin
Park Dental Chaska
Park Dental Como Avenue
Park Dental Coon Rapids
Park Dental Cottage Grove
Park Dental Dean Lakes
Park Dental Downtown Duluth
Park Dental Eagan
Park Dental Eden Prairie
Park Dental Edina
Park Dental Edinborough Way
Park Dental Edinbrook
Park Dental Elk River
Park Dental Grand Avenue
Park Dental Hermantown
Park Dental High Pointe
Park Dental Hudson
Schedule 4.1-1
Schedule 4.1 to A&R Credit Agreement
Park Dental Hugo
Park Dental Lakeville
Park Dental LaSalle Plaza
Park Dental Mac Groveland
Park Dental Maple Grove
Park Dental Maplewood
Park Dental Marquette
Park Dental Minnetonka
Park Dental Owatonna
Park Dental Plymouth Lakes
Park Dental Plymouth West
Park Dental Ridgepark
Park Dental Ridges
Park Dental Riverdale
Park Dental Rochester
Park Dental Rosemount
Park Dental Roseville
Park Dental Salem Square
Park Dental Savage
Park Dental Shakopee
Park Dental Silver Lake
Park Dental St. Croix Valley
Park Dental St. Louis Park
Park Dental Woodbury
Park Dental Yankee Doodle Road
The Dental Specialists – Eagan
The Dental Specialists – St. Paul
The Dental Specialists Blaine South
The Dental Specialists Deephaven
The Dental Specialists Duluth
The Dental Specialists Forest Lake
Schedule 4.1-2
Schedule
4.1 to A&R Credit Agreement
Chief Executive Office/Principal Place of
Business
2200 County Road C West, Suite 2210
Roseville, MN 55113
Other Inventory and Equipment Locations
| Company | |
Location | |
Address | |
City | |
State | |
Zip |
| Park Dental Group | |
Albertville | |
11091 Jason Ave NE #3 | |
Albertville | |
MN | |
55301 |
| Park Dental Group | |
Apple Valley | |
6520 150th St W #300 | |
Apple Valley | |
MN | |
55124 |
| Park Dental Group | |
Cedar Valley | |
14135 Cedar Ave #500 | |
Apple Valley | |
MN | |
55124 |
| Park Dental Group | |
Big Lake | |
16991 198th Ave | |
Big Lake | |
MN | |
55309 |
| Dental Specialists | |
Blaine South | |
11855 Ulysses Street NE | |
Blaine | |
MN | |
55434 |
| Park Dental Group | |
Blaine | |
12904 Central Ave. N.E. | |
Blaine | |
MN | |
55434-4147 |
| Park Dental Group | |
Blaine East | |
4190 108th Ave NE, Suite 130 | |
Blaine | |
MN | |
55449 |
| Park Dental Group | |
Bloomington | |
4200 W Old Shakopee Rd Suite 100 | |
Bloomington | |
MN | |
55437-3934 |
| Park Dental Group | |
Brookpark | |
6437 Brooklyn Boulevard | |
Brooklyn Center | |
MN | |
55429-2174 |
| Park Dental Group | |
Edinbrook | |
8559 Edinbrook Parkway | |
Brooklyn Park | |
MN | |
55443-3728 |
| Park Dental Group | |
Ridges | |
40 Nicollet Blvd W | |
Burnsville | |
MN | |
55337 |
| Park Dental Group | |
Champlin | |
12180 Business Park Blvd N | |
Champlin | |
MN | |
55316 |
| Dental Specialists | |
Chaska South | |
111 Hundertmark Road | |
Chaska | |
MN | |
55318 |
| Park Dental Group | |
Chaska | |
1150 Hazeltine Blvd | |
Chaska | |
MN | |
55318 |
| Dental Specialists | |
Riverdale | |
3161 Northdale Blvd | |
Coon Rapids | |
MN | |
55433-1825 |
| Park Dental Group | |
Coon Rapids | |
9145 Springbrook Drive NW, Suite 100 | |
Coon Rapids | |
MN | |
55433-5886 |
| Park Dental Group | |
Riverdale | |
3161 Northdale Blvd | |
Coon Rapids | |
MN | |
55433-1825 |
| Park Dental Group | |
Cottage Grove | |
7430 80th St S #203 | |
Cottage Grove | |
MN | |
55016 |
| Dental Specialists | |
Downtown Duluth | |
324 W. Superior St., Ste 1111 | |
Duluth | |
MN | |
55802 |
| NMN General | |
BlueStone | |
906 Woodland Ave | |
Duluth | |
MN | |
55812 |
| NMN General | |
Downtown Duluth | |
324 W. Superior St., Ste 1111 | |
Duluth | |
MN | |
55802 |
| NMN General | |
Downtown Duluth | |
324 W. Superior St., Ste 1111 | |
Duluth | |
MN | |
55802 |
| Park Dental Group | |
Eagan | |
1895 Plaza Drive, Suite 130 | |
Eagan | |
MN | |
55122-2612 |
| Park Dental Group | |
Yankee Doodle Road | |
1215 Town Centre Drive #150 | |
Eagan | |
MN | |
55123 |
| Park Dental Group | |
Eden Prairie | |
18315 Cascade Dr #120 | |
Eden Prairie | |
MN | |
55437 |
| Dental Specialists | |
Edina | |
6545 France Ave S | |
Edina | |
MN | |
55435 |
| Dental Specialists | |
Southdale | |
6545 France Ave. S | |
Edina | |
MN | |
55435 |
| Orthodontic Specialists | |
Edina | |
6545 France Ave S | |
Edina | |
MN | |
55435 |
| Park Dental Group | |
Edina | |
6545 France Ave S | |
Edina | |
MN | |
55435 |
| Park Dental Group | |
Edinborough Way | |
3300 Edinborough Way | |
Edina | |
MN | |
55435 |
| Park Dental Group | |
Elk River | |
18230 Zane Ave NW | |
Elk River | |
MN | |
55330 |
| Dental Specialists | |
Forest Lake | |
25 No Lake Street, Suite 11 | |
Forest Lake | |
MN | |
55434 |
| NMN General | |
Hermantown | |
4803 Miller Trunk Highway, Suite B | |
Hermantown | |
MN | |
55811 |
| Park Dental Group | |
Hudson | |
1003 Pearson Drive | |
Hudson | |
WI | |
54016 |
| Park Dental Group | |
Hugo | |
14741 Victor Hugo Blvd N | |
Hugo | |
MN | |
55038 |
Schedule 4.1-3
Schedule 4.1 to A&R Credit Agreement
| Park Dental Group | |
Salem Square | |
5350 South Robert Trail | |
Inver Grove Heights | |
MN | |
55077-1404 |
| Park Dental Group | |
Lakeville | |
17436 Kenwood Trail | |
Lakeville | |
MN | |
55044-9219 |
| Dental Specialists | |
Maple Grove | |
9600 Upland Lane North, Suite 200 | |
Maple Grove | |
MN | |
55369-4496 |
| Park Dental Group | |
Maple Grove | |
9600 Upland Lane North, Suite 200 | |
Maple Grove | |
MN | |
55369-4496 |
| Dental Specialists | |
Downtown Minneapolis | |
825 Nicollet Mall | |
Minneapolis | |
MN | |
55402 |
| Park Dental Group | |
LaSalle Plaza | |
800 LaSalle Avenue South | |
Minneapolis | |
MN | |
55402-2013 |
| Park Dental Group | |
Marquette | |
901 Marquette Avenue S, #230 | |
Minneapolis | |
MN | |
55402 |
| Park Dental Group | |
St Louis Park | |
5000 West 36th Street | |
Minneapolis | |
MN | |
55416 |
| Park Dental Group | |
Minnetonka | |
14525 Highway 7, Suite 125 | |
Minnetonka | |
MN | |
55345-4113 |
| Park Dental Group | |
Ridgepark | |
13059 Ridgedale Drive | |
Minnetonka | |
MN | |
55305-1807 |
| Dental Specialists | |
Monticello | |
3880 Deegan Ct Suite 100 | |
Monticello | |
MN | |
55362 |
| Park Dental Group | |
Owatonna | |
605 Hillcrest Ave Number 210 | |
Owatonna | |
MN | |
55060 |
| Park Dental Group | |
Plymouth Lakes | |
1525 County Rd 101 | |
Plymouth | |
MN | |
55447 |
| Park Dental Group | |
Plymouth West | |
15535 34th Ave. N, Suite 250 | |
Plymouth | |
MN | |
55447 |
| Park Dental Group | |
Apollo | |
3000 43rd St NW | |
Rochester | |
MN | |
55901 |
| Park Dental Group | |
Greenview | |
1801 Greenview Dr SW Suite 101 | |
Rochester | |
MN | |
55902 |
| Park Dental Group | |
Rochester | |
3780 Marketplace Dr NW, Suite 112 | |
Rochester | |
MN | |
55901 |
| Dental Specialists | |
Rosemount West | |
15031 Crestone Ave. | |
Rosemount | |
MN | |
55068 |
| Park Dental Group | |
Rosemount | |
15015 Cimarron Ave | |
Rosemount | |
MN | |
55068 |
| Dental Specialists | |
Roseville | |
1835 County Road C-West, Suite 220 | |
Roseville | |
MN | |
55113-1835 |
| Park Dental Group | |
Resource | |
2200 County Road C West | |
Roseville | |
MN | |
55113 |
| Park Dental Group | |
Roseville | |
1835 County Road C-West, Suite 220 | |
Roseville | |
MN | |
55113-1835 |
| Park Dental Group | |
Como Avenue | |
2282 Como Avenue | |
Saint Paul | |
MN | |
55108-1722 |
| Park Dental Group | |
Grand Avenue | |
917 Grand Avenue | |
Saint Paul | |
MN | |
55105-3000 |
| Park Dental Group | |
Mac Groveland | |
Fire Station #14 Professional Building | |
Saint Paul | |
MN | |
55104-6756 |
| Dental Specialists | |
Sartell | |
1900 Kruchten Court South | |
Sartell | |
MN | |
56377 |
| Park Dental Group | |
Savage | |
14170 Highway 13 South | |
Savage | |
MN | |
55378 |
| Park Dental Group | |
Dean Lakes | |
4155 Dean Lakes Blvd | |
Shakopee | |
MN | |
55379 |
| Park Dental Group | |
Shakopee | |
1515 St Francis Ave Suite 145 | |
Shakopee | |
MN | |
55379 |
| Park Dental Group | |
Silver Lake | |
2600 39th Avenue NE, Suite 225 | |
St Anthony | |
MN | |
55421-2966 |
| Dental Specialists | |
St Paul | |
2550 University Ave W | |
St Paul | |
MN | |
55114 |
| Park Dental Group | |
Maplewood | |
1600 St Johns Blvd | |
St. Paul | |
MN | |
55109 |
| Park Dental Group | |
St Croix Valley | |
13961 60th Street North | |
Stillwater | |
MN | |
55082 |
| Dental Specialists | |
Deephaven | |
18258 Minnetonka Blvd, Suite 100 | |
Wayzata | |
MN | |
55391 |
| Park Dental Group | |
Bailey Road | |
7774 Hargis Parkway, Suite 104 | |
Woodbury | |
MN | |
55129 |
| Park Dental Group | |
Radio Drive | |
241 Radio Drive | |
Woodbury | |
MN | |
55125 |
| Park Dental Group | |
Woodbury | |
10150 City Walk Drive Suite C | |
Woodbury | |
MN | |
55129 |
IT assets held at the following data centers:
Primary Data Center: 1200 Washington
Avenue North, Minneapolis, MN 55401
Backup Data Center: 7700 France Avenue
South, Edina, MN 55435
Schedule 4.1-4
Schedule 4.4 to A&R Credit Agreement
SCHEDULE
4.4
Subsidiaries
Subsidiaries of PDG, P.A.
1. Dental
Specialists of Minnesota, PLLC
2. Orthodontic
Specialists of Minnesota, PLLC
3. The
Facial Pain Center, PLLC
Subsidiaries of Park Dental Partners, Inc.
1. PDP
MN, LLC
Schedule 4.4
Schedule 4.6 to A&R Credit Agreement
SCHEDULE
4.6
Litigation
None.
Schedule 4.6
Schedule 6.1 to A&R Credit Agreement
SCHEDULE
6.1
Permitted Liens
| 1. | Capital Lease in favor of GreatAmerica Financial Services Corporation and a related UCC Financing Statement
filed October 28, 2020, as No. 1189145701466 in the Minnesota Secretary of State's office with PDG, P.A., as debtor. |
Schedule 6.1
Schedule 6.2 to A&R Credit Agreement
SCHEDULE 6.2
Permitted Indebtedness and Guaranties
Indebtedness (other than Subordinated Debt)
None.
Guaranties
None.
Subordinated Creditors
| Subordinated Creditor | |
Amount Owed | |
| Nick Swenson | |
$ | 1,600,000 | |
| John E. Gulon | |
$ | 69,767 | |
| Gregory T. Swenson | |
$ | 69,767 | |
| Daniel T. Marvin | |
$ | 69,767 | |
| Christopher Steele | |
$ | 69,767 | |
| Alan S. Law | |
$ | 69,767 | |
| Todd Marshall | |
$ | 69,767 | |
| Peter Swenson | |
$ | 69,767 | |
| Peter Thompson | |
$ | 27,907 | |
| Kevin Lahr | |
$ | 13,954 | |
| Douglas Petersen | |
$ | 13,954 | |
| Lee Lutterman | |
$ | 20,913 | |
| Total | |
$ | 2,165,097.00 | |
Schedule 6.2
Schedule 6.13 to Credit Agreement
SCHEDULE 6.13
Organizational/Ownership Chart
Schedule 6.13
Exhibit 10.2
US Bank/Park
Dental
A&R
Security Agreement
AMENDED AND RESTATED SECURITY
AGREEMENT
THIS AMENDED AND
RESTATED SECURITY AGREEMENT (this “Agreement”), is made as of this 27th day of March, 2024, by PDG, P.A., a Minnesota
professional association, DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company, ORTHODONTIC SPECIALISTS
OF MINNESOTA, PLLC, a Minnesota professional limited liability company, PARK DENTAL PARTNERS, INC., a Minnesota corporation, THE
FACIAL PAIN CENTER, PLLC, a Minnesota professional limited liability company, and PDP MN, LLC, a Minnesota limited liability company
(individually, collectively and jointly and severally, the “Debtor” or “Debtors”), in favor of U.S. BANK NATIONAL
ASSOCIATION, a national banking association (the “Secured Party”).
In order to secure the payment of the Obligations,
as that term is defined in that certain Amended and Restated Credit Agreement of even date herewith (as the same may hereafter be amended,
supplemented or restated from time to time, the “Credit Agreement) by and between the Debtor and the Secured Party, as evidenced
by, among other things, (a) that certain Second Amended and Restated Revolving Note of even date herewith in the original principal
amount of $15,000,000, as the same may hereafter be amended, supplemented or restated from time to time, and (b) that certain Term
Note of even date herewith in the original principal amount of $13,000,000, as the same may hereafter be amended, supplemented or restated
from time to time, each executed by the Debtor and payable to the order of the Secured Party (all of the foregoing are collectively referred
to herein as the “Secured Obligations”), the Debtor hereby agrees as follows:
1. SECURITY
INTEREST AND COLLATERAL. In order to secure the payment and performance of the Secured Obligations, the Debtor hereby grants to the
Secured Party a security interest (herein called the “Security Interest”) in and to the following property (hereinafter collectively
referred to as the “Collateral”):
All assets of the Debtor including,
without limitation, any and all furniture, fixtures, machinery, equipment, inventory, accounts (including, but not limited to, all health-care-insurance
receivables), deposit accounts, vehicles, prepaid insurance, letter-of-credit rights, supplies, patents, patent rights, copyrights, trademarks,
trade names, goodwill, royalty rights, franchise rights, chattel paper (including, but not limited to, electronic chattel paper and tangible
chattel paper), license rights, documents, instruments, investment property, software, payment intangibles, general intangibles and any
and all other goods, now owned or hereafter acquired by the Debtor and wherever located,
together with all supporting obligations, substitutions
and replacements for and products and proceeds of any of the foregoing property and, in the case of all tangible Collateral, together
with (i) all accessories, attachments, parts, equipment, accessions and repairs now or hereafter attached or affixed to or used in
connection with any such goods, and (ii) all warehouse receipts, bills of lading and other documents now or hereafter covering such
goods. All terms used and not otherwise defined herein shall have the meanings set forth in Articles 8 and 9 of the Uniform Commercial
Code in effect in the State of Minnesota (the “UCC”).
US Bank/Park
Dental
A&R
Security Agreement
2. REPRESENTATIONS,
WARRANTIES AND AGREEMENTS. The Debtor hereby represents and warrants to, and covenants and agrees with, the Secured Party as follows:
(a) The
Collateral will be used primarily for business purposes. The Collateral shall be located on the real property described on Schedule 4.1
of the Credit Agreement.
(b) The
address of the Debtor’s chief executive office is identified on Schedule 4.1 of the Credit Agreement, and it keeps and will keep
all of its books and records with respect to all of its accounts at such address. The Debtor shall not change its state of organization
or chief executive office without the Secured Party’s prior written consent.
(c) If
any Debtor becomes aware of any part or all of the Collateral that becomes so related to particular real estate as to become a fixture,
the Debtor will promptly advise the Secured Party as to real estate concerned and the record owner thereof and execute and deliver any
and all instruments necessary to perfect the Security Interest therein to the extent not already delivered to Secured Party and to assure
that such Security Interest will be prior to the interest therein of the owner of the real estate.
(d) During
the preceding one (1) year, the Debtor has not changed its name or operated or conducted business under any trade name or “d/b/a”
which is different from its corporate name except as otherwise disclosed on Schedule 4.1 of the Credit Agreement. The Debtor shall promptly
notify the Secured Party of any change in such name or if it operates or conducts business under any trade name or “d/b/a”
which is different from such name or the names disclosed on Schedule 4.1 of the Credit Agreement.
(e) The
Debtor has (or will have at the time the Debtor acquires rights in Collateral hereafter acquired or arising) and will maintain absolute
title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest and the
other Permitted Liens (as defined in the Credit Agreement), and will defend the Collateral against all claims or demands of all persons
other than the Secured Party and those holding Permitted Liens. Except as permitted in the Credit Agreement, the Debtor will not sell
or otherwise dispose of the Collateral or any interest therein except that until an Event of Default (as defined in the Credit Agreement)
has occurred the Debtor may sell inventory in the ordinary course of its business.
(f) The
Debtor will not permit any Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing
statement covering such Collateral is required to be, but has not in fact been, filed.
(g) The
Debtor authorizes the Secured Party to file all of the Secured Party’s financing statements and amendments to financing statements,
and all terminations of the filings of other secured parties (other than holders of Permitted Liens), all with respect to the Collateral,
in such form and substance as the Secured Party, in its sole discretion, may determine.
US Bank/Park
Dental
A&R
Security Agreement
(h) All
rights to payment and all instruments, documents, chattel paper and other agreements constituting or evidencing Collateral are (or will
be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other
than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in the Debtor’s
records pertaining thereto as being obligated to pay such obligation. The Debtor will not agree to any modification, amendment or cancellation
of any such obligation without the Secured Party’s prior written consent, and will not subordinate any such right to payment to
claims of other creditors of such account debtor or other obligor.
(i) The
Debtor will: (i) keep all Collateral in good repair, working order and condition, normal wear, tear and depreciation excepted, and
will, from time to time, replace any worn, broken or defective parts thereof to the extent Debtor determines in its business judgment
that such replacement is necessary or desirable in the conduct of Debtor’s business; (ii) other than taxes and other governmental
charges contested in good faith and by appropriate proceedings, promptly pay all taxes and other governmental charges levied or assessed
upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest; (iii) keep all
Collateral free and clear of all security interests, liens and encumbrances except the Permitted Liens; (iv) at all reasonable times,
permit the Secured Party or its representatives to examine or inspect any Collateral, wherever located, and to examine, inspect and copy
the Debtor’s books and records pertaining to the Collateral and its business and financial condition and to discuss with account
debtors and other obligors requests for verifications of amounts owed to the Debtor; (v) keep accurate and complete records pertaining
to the Collateral and pertaining to the Debtor’s business and financial condition and will submit to the Secured Party such periodic
reports concerning the Collateral and the Debtor’s business and financial condition as the Secured Party may from time to time reasonably
request; (vi) promptly notify the Secured Party of any material loss or damage to any Collateral or of any material adverse change,
known to the Debtor, in the prospect of payment of any sums due on or under any instrument, chattel paper or account constituting Collateral;
(vii) if the Secured Party at any time so requests promptly deliver to the Secured Party any instrument, document or chattel paper
having value in excess of $50,000 and constituting Collateral, duly endorsed or assigned by the Debtor to the Secured Party; (viii) at
all times keep all Collateral insured against risks of fire (including so called extended coverage), theft, collision (in case of collateral
consisting of motor vehicles) and such other risks and in such amounts as the Secured Party may request and in accordance with the requirements
under the Credit Agreement, with any loss payable to the Secured Party to the extent of its interest and notify the Secured Party in writing
of any material loss or damage to the Collateral or any part; (ix) from time to time execute such financing statements or other forms,
including, without limitation, patent and trademark recordation forms, as the Secured Party may deem required to be filed in order to
perfect the Security Interest and, if any Collateral is covered by a certificate of title, execute such documents as may be required to
have the Security Interest properly noted on a certificate of title; (x) pay when due or reimburse the Secured Party on demand for
all costs of collection of any of the Secured Obligations and all other out-of-pocket expenses (including in each case all reasonable
attorneys’ fees) incurred by the Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security
Interest or the execution or creation, continuance or enforcement of this Agreement or any or all of the Secured Obligations including
expenses incurred in any litigation or bankruptcy or insolvency proceedings; (xi) execute, deliver or endorse any and all instruments,
documents, assignments, security agreements and other agreements and writings which the Secured Party may at any time reasonably request
in order to secure, protect, perfect or enforce the Security Interest and the Secured Party’s rights under this Agreement, including,
without limitation, an assignment of claim with respect to any account which is a government receivable; (xii) not use or keep any
Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance;
(xiii) permit the Secured Party at any time and from time to time to send requests (during the occurrence of an Event of Default
under the Credit Agreement) to account debtors or other obligors for verification of amounts owed to Debtor; and (xiv) not permit
any Collateral to become part of or to be affixed to any real property, without first assuring to the reasonable satisfaction of the Secured
Party that the Security Interest will be prior and senior to any interest or lien then held or thereafter acquired by any mortgagee of
such real property or the owner or purchaser of any interest therein. If the Debtor at any time fails to perform or observe any agreement
contained in this Section 2(i), and if such failure shall continue for a period of ten (10) calendar days after the Secured
Party gives the Debtor written notice thereof (or, in the case of the agreements contained in clauses (viii) and (ix) of this
Section 2(i), immediately upon the occurrence of such failure, without notice or lapse of time) the Secured Party may (but need not)
perform or observe such agreement on behalf and in the name, place and stead of the Debtor (or, at the Secured Party’s option, in
the Secured Party’s own name) and may (but need not) take any and all other actions which the Secured Party may deem necessary to
cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens or encumbrances
(other than Permitted Liens), the performance of obligations under contracts or agreements with account debtors or other obligors, the
procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of
repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance
of money usurious or otherwise illegal under any applicable law, the Debtor shall thereupon pay the Secured Party on demand the amount
of all moneys expended and all costs and expenses (including attorneys’ fees) incurred by the Secured Party in connection with or
as a result of the Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon
from the date expended or incurred by the Secured Party at the default rate provided for in the Credit Agreement. To facilitate the performance
or observance by the Secured Party of such agreements of the Debtor, the Debtor hereby irrevocably appoints (which appointment is coupled
with an interest) the Secured Party, or its delegate, as the attorney-in-fact of the Debtor with the right (but not the duty) from time
to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of the Debtor, any and all instruments,
documents, financing statements, forms, applications for insurance and other agreements and writings required to be obtained, executed,
delivered or endorsed by the Debtor under this Section 2.
US Bank/Park
Dental
A&R
Security Agreement
3. ASSIGNMENT
OF INSURANCE. The Debtor hereby assigns to the Secured Party, as additional security for the payment of the Secured Obligations, any
and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all
other rights of the Debtor under or with respect to, any and all policies of insurance covering the Collateral, and the Debtor hereby
directs the issuer of any such policy to pay any such moneys to the Secured Party. During the occurrence of an Event of Default under
the Credit Agreement, the Secured Party may (but need not) in its own name or in the Debtor’s name, execute and deliver proofs of
claim, receive all such moneys (subject to the Debtor’s rights), endorse checks and other instruments representing payment of such
monies, and adjust, litigate, compromise or release any claim against the issuer of any such policy.
4. COLLECTION
OF ACCOUNTS. The Secured Party may, or at the Secured Party’s request, the Debtor shall, during the occurrence of an Event of
Default under the Credit Agreement, notify any account debtor or any obligor on an instrument to make payment directly to a post office
box specified by and under the sole control of the Secured Party, whether or not the Secured Party was theretofore making collections
with respect thereto, and the Secured Party shall be entitled to take control of any proceeds thereof. If so requested by the Secured
Party, the Debtor shall insert appropriate language on each invoice directing its customers to make payment to such post office box. During
any Default Period, the Debtor hereby authorizes and directs the Secured Party, at Secured Party’s election, to deposit into a special
collateral account to be established and maintained with the Secured Party all checks, drafts and cash payments, received in said lock
box. All deposits in said collateral account shall constitute proceeds of Collateral and shall not constitute payment of any of the Secured
Obligations. At its option, the Secured Party may, at any time during an Event of Default under the Credit Agreement, apply finally collected
funds on deposit in said collateral account to the payment of the Secured Obligations in such order of application as the Secured Party
may determine, or permit the Debtor to withdraw all or any part of the balance on deposit in said collateral account. If a collateral
account is so established during any Default Period, the Debtor agrees that it will promptly deliver to the Secured Party for deposit
into said collateral account, all payments on accounts and chattel paper received by it. All such payments shall be delivered to the Secured
Party in the form received (except for the Debtor’s endorsement where necessary). Until so deposited and during any Default Period,
all payments on accounts and chattel paper received by the Debtor shall be held in trust by the Debtor for and as the property of the
Secured Party and shall not be commingled with any funds or property of the Debtor.
5. REMEDIES.
During the occurrence of an Event of Default under the Credit Agreement, the Secured Party may exercise any one or more of the following
rights or remedies if any or all of the Secured Obligations are not paid when due: (i) exercise and enforce any or all rights and
remedies available after default to a secured party under the Uniform Commercial Code, including but not limited to the right to take
possession of any Collateral, proceeding without judicial process or by judicial process (without a prior hearing or notice thereof, which
the Debtor hereby expressly waives), and the right to sell, lease or otherwise dispose of or use any or all of the Collateral; (ii) the
Secured Party may require the Debtor to assemble the Collateral and make it available to the Secured Party at a place to be designated
by the Secured Party which is reasonably convenient to both parties; (iii) exercise its rights under any lessors’ agreements
regardless of whether or not the Debtor is in default under such leases; and (iv) exercise or enforce any or all other rights or
remedies available to the Secured Party by law or agreement against the Collateral, against the Debtor or against any other person or
property including, without limitation, and without regard to any waste, adequacy of the security or solvency of the Debtor, the right
to apply for the appointment of a receiver to liquidate the Collateral to which appointment the Debtor hereby consents. The Secured Party
is hereby granted a non-exclusive, worldwide and royalty-free license to use or otherwise exploit all trademarks, franchises, copyrights
and patents of the Debtor that the Secured Party deems necessary or appropriate to the disposition of any Collateral during any Default
Period. If notice to the Debtor of any intended disposition of Collateral or any other intended action is required by law in a particular
instance, such notice shall be deemed commercially reasonable if given (in the manner specified in Section 6 below) at least ten
(10) calendar days prior to the date of intended disposition or other action.
US Bank/Park
Dental
A&R
Security Agreement
6. MISCELLANEOUS.
This Agreement does not contemplate a sale of accounts or chattel paper, and, as provided by law, the Debtor is entitled to any surplus
and shall remain liable for any deficiency. This Agreement can be waived, modified, amended, terminated or discharged, and the Security
Interest can be released, only explicitly in a writing signed by the Secured Party. A waiver signed by the Secured Party shall be effective
only in the specific instance and for the purpose given. Mere delay or failure to act shall not preclude the exercise or enforcement of
any of the Secured Party’s rights or remedies. All rights and remedies of the Secured Party shall be cumulative and may be exercised
singularly or concurrently, at the Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall
neither be a condition to nor bar the exercise or enforcement of any other. All notices to be given to the Debtor shall be deemed sufficiently
given if deposited in the United States mails, registered or certified, postage prepaid, or personally delivered to the Debtor at its
address set forth herein. The Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall
be deemed fulfilled if the Secured Party exercises reasonable care in physically safe keeping such Collateral or, in the case of Collateral
in the custody or possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third
person, and the Secured Party need not otherwise preserve, protect, insure or care for any Collateral. The Secured Party shall not be
obligated to preserve any rights the Debtor may have against any other party, to realize on the Collateral at all or in any particular
manner or order, or to apply any cash proceeds of Collateral in any particular order of application. This Agreement shall be binding upon
and inure to the benefit of the Debtor and the Secured Party and their respective heirs, representatives, successors and assigns and shall
take effect when signed by the Debtor and delivered to the Secured Party, and the Debtor waives notice of the Secured Party’s acceptance
hereof. The Secured Party may execute this Agreement if appropriate for the purpose of filing, but the failure of the Secured Party to
execute this Agreement shall not affect or impair the validity or effectiveness of this Agreement. Except to the extent otherwise required
by law, this Agreement shall be governed by the laws of the State of Minnesota and, unless the context otherwise requires, all terms used
herein which are defined in Articles 1, 8 and 9 of the UCC, shall have the meanings therein stated and all capitalized terms used herein
which are defined in the Credit Agreement shall have the meanings therein stated. If any provision or application of this Agreement is
held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which
can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been
contained herein or prescribed hereby. All representations and warranties contained in this Agreement shall survive the execution, delivery
and performance of this Agreement and the creation and payment of the Secured Obligations.
US Bank/Park
Dental
A&R
Security Agreement
7. AMENDMENT
AND RESTATEMENT. This Agreement constitutes an amendment and restatement of that certain Security Agreement dated as of March 16,
2015, executed by the Debtors in favor of the Secured Party (as the same has been amended from time to time, the “Existing Security
Agreement”), and is given in replacement and substitution for, but not in payment or satisfaction of, the Existing Security Agreement.
This Agreement is not a novation of the Existing Security Agreement or any other obligations of the Debtors to the Secured Party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
US Bank/Park
Dental
A&R
Security Agreement
IN WITNESS WHEREOF, the Debtor has executed and
delivered to the Secured Party this Amended and Restated Security Agreement as of the day and year first above written.
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DEBTORS: |
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PDG, P.A., a Minnesota professional association |
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|
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By: |
|
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Christopher Steele, D.D.S. |
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Its President |
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|
|
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THE FACIAL PAIN CENTER, PLLC, a Minnesota professional limited liability company |
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|
|
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By: |
|
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Christopher Steele, D.D.S. |
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Its Manager |
US Bank/Park Dental
A&R
Security Agreement
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DEBTORS: |
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ORTHODONTIC SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company |
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|
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By: |
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Alan S. Law, D.D.S., PhD. |
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Its President |
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DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company |
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|
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By: |
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Alan S. Law, D.D.S., PhD. |
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Its President |
US Bank/Park Dental
A&R
Security Agreement
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DEBTORS: |
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PARK DENTAL PARTNERS, INC., a Minnesota corporation |
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By: |
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Peter G. Swenson |
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Its Chief Executive Officer |
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PDP MN, LLC, a Minnesota limited liability company |
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|
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By: |
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Peter G. Swenson |
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Its Chief Executive Officer |
Exhibit 10.3
US Bank/Park Dental
Second
A&R Revolving Note
SECOND AMENDED AND RESTATED REVOLVING NOTE
| $15,000,000.00 |
Minneapolis,
Minnesota |
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March 27, 2024 |
For value received, the undersigned,
PDG, P.A., a Minnesota professional association, DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company,
ORTHODONTIC SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company, PARK DENTAL PARTNERS, INC., a Minnesota
corporation, THE FACIAL PAIN CENTER, PLLC, a Minnesota professional limited liability company, and PDP MN, LLC, a Minnesota limited
liability company (individually, collectively and jointly and severally, the “Borrower” or “Borrowers”), hereby
promise to pay on the Revolving Credit Termination Date under the Credit Agreement (defined below), to the order of U.S. BANK NATIONAL
ASSOCIATION, a national banking association (the “Lender”), at its office in Minneapolis, Minnesota, or at any other
place designated at any time by the holder hereof, in lawful money of the United States of America and in immediately available funds,
the principal sum of Fifteen Million and 00/100 Dollars ($15,000,000.00), or so much thereof as may be or has been advanced by the Lender
to or for the benefit of the Borrower under the Credit Agreement and remains unpaid, together with interest on the principal amount hereunder
remaining unpaid from time to time, from the date hereof until this Note is fully paid at the rate or rates from time to time in effect
under that certain Amended and Restated Credit Agreement of even date herewith (as the same may hereafter be amended, supplemented or
restated from time to time, the “Credit Agreement”) by and between the Lender and the Borrower. All defined terms used in
this Note, unless otherwise defined herein, shall have the meanings set forth in the Credit Agreement.
The principal hereof and interest
accruing thereon shall be due and payable as provided in the Credit Agreement. This Note may be prepaid only in accordance with the Credit
Agreement. Interest on this Note is computed on a 365/360 basis; that is, by applying the ratio of the interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. All
interest payable under this Note is computed using this method. This calculation method results in a higher effective interest rate than
the numeric interest rate stated in this Note.
This Note is issued pursuant,
and is subject, to the Credit Agreement, which provides, among other things, for acceleration hereof. This Note is the “Revolving
Note” defined in the Credit Agreement. This Note is secured, among other things, pursuant to the Security Documents and may now
or hereafter be secured by one or more other security agreements, mortgages, deeds of trust, assignments or other instruments or agreements.
This Note shall be governed by and construed in accordance with the internal laws of the State of Minnesota.
US Bank/Park Dental
Second
A&R Revolving Note
The Borrower hereby agrees
to pay all costs of collection, including attorneys’ fees and legal expenses in the event this Note is not paid when due, whether
or not legal proceedings are commenced.
The Borrower hereby expressly
waives demand, presentment, protest or notice of dishonor or of any kind hereunder. The obligations of the Borrower hereunder are joint
and several obligations.
This Note constitutes an amendment
and restatement of that certain Amended and Restated Revolving Note dated as of October 4, 2023, executed by the Borrower and payable
to the order of the Lender in the original principal amount of $23,000,000 (as the same has been amended from time to time, the “Existing
Note”), and is given in replacement and substitution for, but not in payment or satisfaction of, the Existing Note. This Note is
not a novation of the Existing Note or any other obligations of the Borrower to the Lender.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
US Bank/Park Dental
Second
A&R Revolving Note
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BORROWERS: |
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|
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PDG, P.A., a Minnesota professional association |
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|
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By: |
|
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Christopher Steele, D.D.S. |
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Its President |
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|
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THE FACIAL PAIN CENTER, PLLC, a Minnesota professional limited liability company |
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|
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By: |
|
| |
|
Christopher Steele, D.D.S. |
| |
|
Its Manager |
US Bank/Park Dental
Second
A&R Revolving Note
| |
BORROWERS: |
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|
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ORTHODONTIC SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company |
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|
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By: |
|
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Alan S. Law, D.D.S., PhD. |
| |
|
Its President |
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|
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DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company |
| |
|
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By: |
|
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|
Alan S. Law, D.D.S., PhD. |
| |
|
Its President |
US Bank/Park Dental
Second
A&R Revolving Note
| |
BORROWERS: |
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|
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PARK DENTAL PARTNERS, INC., a Minnesota corporation |
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|
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By: |
|
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Peter G. Swenson |
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Its Chief Executive Officer |
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|
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PDP MN, LLC, a Minnesota limited liability company |
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|
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By: |
|
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Peter G. Swenson |
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|
Its Chief Executive Officer |
Exhibit 10.4
US
Bank/Park Dental
Term Note
TERM NOTE
| $13,000,000.00 |
Minneapolis,
Minnesota |
| |
March 27, 2024 |
For value received, the undersigned,
PDG, P.A., a Minnesota professional association, DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company,
ORTHODONTIC SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company, PARK DENTAL PARTNERS, INC., a Minnesota
corporation, THE FACIAL PAIN CENTER, PLLC, a Minnesota professional limited liability company, and PDP MN, LLC, a Minnesota limited
liability company (individually, collectively and jointly and severally, the “Borrower” or “Borrowers”), hereby
promise to pay on the Maturity Date under the Credit Agreement (defined below), to the order of U.S. BANK NATIONAL ASSOCIATION, a national
banking association (the “Lender”), at its office in Minneapolis, Minnesota, or at any other place designated at any time
by the holder hereof, in lawful money of the United States of America and in immediately available funds, the principal sum of Thirteen
Million and 00/100 Dollars ($13,000,000.00), which amount has been advanced by the Lender to or for the benefit of the Borrower under
the Credit Agreement and remains unpaid, together with interest on the principal amount hereunder remaining unpaid from time to time,
from the date hereof until this Note is fully paid at the rate or rates from time to time in effect under that certain Amended and Restated
Credit Agreement of even date herewith (as the same may hereafter be amended, supplemented or restated from time to time, the “Credit
Agreement”) by and between the Lender and the Borrower. All defined terms used in this Note, unless otherwise defined herein, shall
have the meanings set forth in the Credit Agreement.
The principal hereof and interest
accruing thereon shall be due and payable as provided in the Credit Agreement. This Note may be prepaid only in accordance with the Credit
Agreement. Interest on this Note is computed on a 365/360 basis; that is, by applying the ratio of the interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. All
interest payable under this Note is computed using this method. This calculation method results in a higher effective interest rate than
the numeric interest rate stated in this Note.
This Note is issued pursuant,
and is subject, to the Credit Agreement, which provides, among other things, for acceleration hereof. This Note is the “Term Note”
defined in the Credit Agreement. This Note is secured, among other things, pursuant to the Security Documents and may now or hereafter
be secured by one or more other security agreements, mortgages, deeds of trust, assignments or other instruments or agreements. This Note
shall be governed by and construed in accordance with the internal laws of the State of Minnesota.
The Borrower hereby agrees
to pay all costs of collection, including attorneys’ fees and legal expenses in the event this Note is not paid when due, whether
or not legal proceedings are commenced.
US Bank/Park Dental
Term Note
The Borrower hereby expressly waives demand, presentment, protest
or notice of dishonor or of any kind hereunder. The obligations of the Borrower hereunder are joint and several obligations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
US Bank/Park Dental
Term Note
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BORROWERS: |
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|
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PDG, P.A., a Minnesota professional association |
| |
|
| |
By: |
|
| |
|
Christopher Steele, D.D.S. |
| |
|
Its President |
| |
|
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THE FACIAL PAIN CENTER, PLLC, a Minnesota professional limited liability company |
| |
|
| |
By: |
|
| |
|
Christopher Steele, D.D.S. |
| |
|
Its Manager |
US Bank/Park Dental
Term Note
|
|
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BORROWERS: |
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ORTHODONTIC SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company |
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By: |
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Alan S. Law, D.D.S., PhD. |
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Its President |
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DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability company |
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By: |
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Alan S. Law, D.D.S., PhD. |
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Its President |
US Bank/Park Dental
Term Note
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BORROWERS: |
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PARK DENTAL PARTNERS, INC., a Minnesota corporation |
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By: |
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Peter G. Swenson |
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Its Chief Executive Officer |
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PDP MN, LLC, a Minnesota limited liability company |
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By: |
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Peter G. Swenson |
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Its Chief Executive Officer |
Exhibit 10.5
SENIOR SECURED NOTE PURCHASE
AGREEMENT
This Note Purchase Agreement,
dated as of September 26, 2007, (this “Agreement”) is entered into by and among PDG, P.A., a Minnesota professional association
(the “Company”), Nick Swenson, an individual residing in Minnesota (the “Initial Investor”), and any
other person or entity who hereafter executes a counterpart signature page (“Counterpart”) to this Agreement in the
form of Schedule I as an “Additional Investor” on or prior to the Closing Date (as defined below) (the Initial
Investor and Additional Investors are collectively referred to as the “Investors” and, individually, as an “Investor”).
RECITALS
A. On the terms and subject
to the conditions set forth herein, each Investor is willing to purchase from the Company, and the Company is willing to sell to each
Investor, a secured promissory note for up to the original principal amount set forth in Schedule II hereto (in the case of the
Initial Investor) or the applicable Counterpart (in the case of each Additional
Investor).
B. Capitalized terms not
otherwise defined herein shall have the meaning set forth in the form of Note (as defined below) attached hereto as Exhibit A.
AGREEMENT
NOW THEREFORE, in consideration
of the foregoing, and the representations, warranties, and conditions set forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. The Secured Notes.
1.1 Issuance of Notes. At the Closing (as defined below), the Company agrees to issue and sell to each of the Investors, and, subject to all of the terms and conditions hereof, each of the Investors severally agrees to purchase a secured promissory note in the form of Exhibit A hereto (each, a “Note” and, collectively, the “Notes”) for up to the original principal amount set forth in Schedule II hereto (in the case of the Initial Investor) or the applicable Counterpart (in the case of each Additional Investor) hereto by delivery of a check in the amount of each Investor’s share of the initial Tranche (the “Purchase Price”), and each Investor’s agreement to pay his or her share of each subsequent Tranche, as set forth in Section 1.3 of this Agreement. The purchase and sale of the Notes will be several and not joint. Each of the Notes shall constitute indebtedness against the Company and will be registered in such Investor’s name in the Company’s records.
1.2
Closing. Subject to satisfaction or waiver of the conditions set forth in Sections 6 and 7, the sale
and purchase of the Notes shall take place in a single closing (the “Closing”) to be held at the offices of the Company’s
attorneys, Larkin Hoffman Daly & Lindgren Ltd., 7900 Xerxes Avenue South, Suite 1500, Bloomington, Minnesota, at 10:00 a.m. on Friday,
October 12, 2007 (the “Closing Date”). At the Closing, the Company will deliver to each Investor the respective Note
to be purchased by such Investor in the original principal amount set forth opposite such Investor’s name on Schedule II hereto
(in the case of each Initial Investor) or the applicable Counterpart (in the case of each Additional Investor), and each Investor will
deliver his or her Purchase Price in exchange for such Note. In addition, the Company and Nick Swenson, as agent for all Investors, shall
execute and deliver a security agreement in the form attached as Exhibit B hereto (the “Security Agreement”),
securing each of the Notes by a first lien on all existing and after acquired real and personal, tangible and intangible assets and property
of the Company.
1.3
Commitments and Tranches.
| (a) | The
Initial Investor agrees to pay a minimum of One Million Six Hundred Thousand Dollars ($1,600,000)
to the Company pursuant to the Initial Investor’s Note, so long as Additional Investors agree
to pay a minimum of Six Hundred Thousand Dollars ($600,000) to the Company (collectively,
the “Minimum Investments”). The Minimum Investments shall be due and payable
to the Company by the Investors as set forth on Schedule III attached hereto; provided,
however, that the amounts shown on Schedule III for the Additional Investors are aggregate
amounts. The amount actually owed by each Additional Investor shall be a fraction of such
aggregate amount, the numerator of which shall be the original stated principal amount of
each Additional Investor’s Note (as determined pursuant to Section 1.3(c) below) and the
denominator of which shall be the aggregate amount of all Notes issued to Additional Investors
(such fraction, with respect to each Additional Investor, shall be such Additional Investor’s
“Pro Rata Share”). |
| (b) | Upon
and to the extent of the request(s) of the Company, the Initial Investor agrees to pay up
to an additional Five Hundred Thousand Dollars ($500,000) to the Company (“Additional
Initial Investor Investment”), in addition to his Minimum Investment. The Company
may request up to one-half (1/2) of the total Additional Initial Investor Investment for
payment on January 1, 2008 (the “January Additional Investment”), and may
request an amount up to the remaining unpaid Additional Initial Investor Investment for payment
on February 1, 2008 (the “February Additional Investment”). (For sake of
clarity, if the Company does not request any January Additional Investment, the amount of
the February Additional Investment may be up to $500,000.) Any request for payment shall
be made in writing delivered to the Initial Investor at least five (5) days prior to the
intended payment date. |
| (c) | Upon
and to the extent of the request(s) of the Company, the Additional Investors, collectively,
agree to pay an additional amount to the Company up to an aggregate amount equal to the difference
between One Million Dollars ($1,000,000) and the total Additional Initial Investor Investment
requested by the Company and paid by the Initial Investor (such difference, is referred to
as the “Discretionary Investment”). Each Additional Investor agrees to pay
to the Company the Additional Investor’s Pro Rata Share of the total available Discretionary
Investment. The original stated principal amount of each Additional Investor’s Note shall
equal such Additional Investor’s Pro Rata Share of the Minimum Investment plus such Additional
Investor’s Pro Rata Share of the Discretionary Investment, assuming no Additional Initial
Investor Investment (i.e., it will be the Additional Investor’s Pro Rata Share of the maximum
aggregate investment by the Additional Investors hereunder of $1,600,000). |
| (d) | Under no circumstances shall (i) the sum of any Discretionary Investment for payment
on or before January 1, 2008, and the amount of the January Additional Investment, if any, exceed Two Hundred Fifty Thousand Dollars ($250,000),
(ii) the sum of the total Additional Initial Investor Investment and the aggregate Discretionary Investment exceed One Million Dollars
($1,000,000), and (iii) the sum of the total Minimum Investments, total Additional Initial Investor Investment, and total Discretionary
Investment exceed Three Million Two Hundred Thousand Dollars ($3,200,000). |
| (e) | All payments of the Investors required under this Agreement and the Notes are subject
to the condition that there is then no Event of Default. |
1.4
Payments. The Company will make all payments due under the Notes and this Agreement by issuance
of Company checks mailed on or before the date such payment is due to the address for such purpose specified for each Additional Investor
on Schedule II hereto (in the case of the Initial Investor) or the applicable Counterpart (in the case of each Additional Investor),
or at such other address as an Investor or other registered holder of a Note may from time to time direct in writing. The Company may
also agree with any Investor to make any such payments by wire transfer.
2.
Use of Proceeds. The proceeds of the sale and issuance of the Notes shall be used for general corporate purposes.
3.
Representations
and Warranties of the Company. A Schedule of Exceptions is attached hereto as Schedule IV. Except as set forth on the
Schedule of Exceptions, the Company hereby represents and warrants to the Investors that the following statements are true and correct
as of the date of this Agreement and will be true and correct on the Closing Date as if made on the day of Closing:
3.1 Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota. The Company has the requisite corporate power and authority to own and operate its properties and assets, to carry on its business as presently conducted, to execute and deliver this Agreement and the Security Agreement (this Agreement and the Security Agreement together, the “Agreements”), to issue and sell the Notes, and to perform its obligations pursuant to the Agreements and the Notes. The Company is presently qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified could reasonably be expected to have a material adverse effect on the Company’s financial condition or business as now conducted or proposed to be conducted (a “Material Adverse Effect”).
3.2 Subsidiaries. The Company does not own or control, directly or indirectly, any interest in any corporation, partnership, limited liability company, association or other business entity. The Company is not a participant in any joint venture, partnership or similar arrangement.
3.3 Authorization. All corporate action on the part of the Company and its directors, officers and stockholders necessary for the authorization, execution and delivery of the Agreements by the Company hereunder and thereunder at the Closing and, the authorization, sale, issuance and delivery of the Notes, and the performance of all of the Company’s obligations under the Agreements has been taken or will be taken prior to the Closing. The Agreements, when executed and delivered by the Company, shall constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except (i) as limited by laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) as limited by rules of law governing specific performance, injunctive relief or other equitable remedies and by general principles of equity.
3.4 Agreements; Action.
| (a) | There are no agreements, understandings or proposed transactions between the Company
and any of its officers, directors, affiliates, or any affiliate thereof. |
| (b) | There are no agreements, understandings, instruments, contracts, proposed transactions,
judgments, orders, writs or decrees to which the Company is a party or by which it is bound that may involve obligations (contingent or
otherwise) of, or payments by the Company in excess of, $10,000 other than in the ordinary course of the Company’s business. |
| (c) | The Company has not (i) declared or paid any dividends or authorized or made any distribution upon or
with respect to any class or series of its capital stock, (ii) incurred or guaranteed any indebtedness for money borrowed or any other
liabilities individually in excess of $10,000 or, in the case of indebtedness and/or liabilities individually
less than $10,000, in excess of $50,000 in the aggregate, (iii) made any loans or advances to any person, other than ordinary advances
for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory
in the ordinary course of business. |
| (d) | For the purposes of subsections (b) and (c) above, all indebtedness, liabilities, agreements,
understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities
the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum
dollar amounts of such subsections. |
3.5 Obligations to Related Parties. There are no obligations of the Company to officers, directors, stockholders, or employees of the Company other than (a) for payment of salary for services rendered, (b) reimbursement for reasonable expenses incurred on behalf of the Company and (c) for other standard employee benefits made generally available to all employees (including stock option agreements outstanding under any stock option plan approved by the Board of Directors of the Company). None of the officers, directors, key employees or stockholders of the Company or any members of their immediate families, are indebted to the Company or have any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation which competes with the Company, other than passive investments in publicly traded companies (representing less than 15% of such company) which may compete with the Company. The Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation.
3.6 Title to Properties and Assets; Liens. The Company has good and marketable title to its properties and assets, in each case subject to no material mortgage, pledge, lien, lease, encumbrance or charge, other than (i) liens incurred pursuant to the Security Agreement in connection with the present financing, (ii)liens for current taxes not yet due and payable, (iii) minor liens imposed by law and incurred in the ordinary course of business for obligations not past due, and (iv) liens, encumbrances and defects in title which do not in any case materially detract from the value of the property subject thereto or have a Material Adverse Effect, and which have not arisen otherwise than in the ordinary course of business. With respect to the property and assets it leases, the Company is in compliance with such leases in all material respects and, to its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances, subject to clauses (i)-(iv) above.
3.7 Compliance with Other Instruments. Except where properly waived, the execution and delivery of the Agreements and the Notes by the Company, and the performance by the Company of its obligations pursuant to the Agreements and the Notes, will not result in any violation of, or conflict with, or constitute a default under, the Company’s Articles of Incorporation or Bylaws, each as amended to date, or any of its agreements, nor, to the Company’s knowledge, result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company, other than in favor of the Investors pursuant to the Security Agreement, or (i) result in a breach or violation of the terms, conditions or provisions of, (ii) constitute a default under, (iii) result in the creation of any encumbrance upon the capital stock or assets of the Company pursuant to, (iv) give any third party the right to modify, terminate or accelerate any obligation under, or (v) require any authorization, consent, approval, exemption or other action by or notice to any court or administrative or governmental body or other third party pursuant to, any applicable law, statute, rule or regulation or any agreement or instrument or any order, judgment or decree to which the Company is subject or by which any of its assets are bound, except those that been duly and validly obtained or filed, or with respect to any filings that must be made after the Closing, as will be filed in a timely manner after the Closing. The Company has avoided every condition, and has not performed any act, the occurrence of which would result in the Company’s loss of any right granted under any license, distribution agreement or other agreement required to be disclosed on the Schedule of Exceptions.
3.8 Litigation. To the Company’s knowledge, there are no actions, suits, proceedings or investigations pending against the Company or its properties (nor has the Company received written notice of any threat thereof) before any court or governmental agency that questions the validity of the Agreements or the right of the Company to enter into them, or the right of the Company to perform its obligations contemplated thereby, or that, either individually or in the aggregate, if determined adversely to the Company, would or could reasonably be expected to have a Material Adverse Effect or result in any change in the assets, conditions, affairs or prospects of the Company, financially or otherwise, or any change in the current equity ownership of the Company nor is the Company aware that there is any basis for any of the foregoing.
3.8 Laws and Permits. The Company is not in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its properties which violation would materially and adversely affect the business, assets, liabilities, financial condition, operations or prospects of the Company. The Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business as now being conducted by it, the lack of which would have a Material Adverse Effect, and believes it can obtain, without undue burden or expense, any similar authority for the conduct of its business as planned to be conducted.
3.9 Tax Returns and Payments. The Company is a C corporation for purposes of federal and state income taxes. The Company has timely filed all tax returns (federal, state and local) required to be filed by it with appropriate federal, state and local governmental agencies, except where the failure to do so would not have a Material Adverse Effect. These returns and reports are true and correct in all material respects. All taxes shown to be due and payable on such returns, any assessments imposed, and to the Company’s knowledge all other taxes due and payable by the Company on or before the Closing, have been paid or will be paid prior to the time they become delinquent. The Company has not been advised (a) that any of its returns, federal, state or other, have been or are being audited as of the date hereof, or (b) of any deficiency in assessment or proposed judgment to its federal, state or other taxes. The Company has no knowledge of any liability of any tax to be imposed upon its properties or assets as of the date of this Agreement that is not adequately provided for.
3.10 Employees. No employee of the Company has been granted the right to continued employment by the Company or to any material compensation following termination of employment with the Company. The Company is not aware that any officer, key employee or group of employees intends to terminate his, her or their employment with the Company, nor does the Company have a present intention to terminate the employment of any officer, key employee or group of employees. There are no actions pending, or to the Company’s knowledge, threatened, by any former or current employee concerning such person’s employment by the Company.
3.11 Corporate Documents. The copy of the minute books of the Company available for review by Investors’ counsel contains complete and correct minutes of all duly called meetings of directors and stockholders and all actions by written consent without a meeting by the directors and stockholders since the date of incorporation and reflects all actions by the directors (and any committee of directors) and stockholders with respect to all transactions referred to in such minutes completely and accurately in all material respects.
4. Representations
and Warranties of Investors. Each Investor, severally and not jointly, in consideration of the Company’s offer to sell the Notes
and upon the acquisition of the Notes, represents and warrants to the Company as follows:
4.1 Authorization.
| (a) | Such Investor has all requisite power and authority to execute and deliver the Agreements, to purchase
a Note hereunder for the amount subscribed, and to carry out and perform its obligations under the terms of the Agreements. All action
on the part of the Investor necessary for the authorization, execution, delivery and performance of the Agreements, and the performance
of all of the Investor’s obligations under the Agreements, has been taken or will be taken prior to the Closing. |
| (b) | The Agreements, when executed and delivered by or on behalf of the Investor, will constitute valid and
legally binding obligations of the Investor, enforceable in accordance with their terms except: (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and
(ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies or by general
principles of equity. Without limiting the foregoing, by executing and delivering this Agreement, each Additional Investor authorizes
the Initial Investor to act for and on behalf of the Additional Investor as provided in the Security Agreement. |
| (c) | No consent, approval, authorization, order, filing, registration or qualification
of or with any court, governmental authority or third person is required to be obtained by the Investor in connection with the execution
and delivery of the Agreements by the Investor or the performance of the Investor’s obligations hereunder or thereunder. |
4.2 Tax Advisors. Such Investor has reviewed with its own tax advisors the U.S. federal, state, local and foreign tax consequences of this investment and the transactions contemplated by the Agreements. With respect to such matters, such Investor relies solely on such advisors and not on any statements or representations of the Company or any of its agents, written or oral. The Investor understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment or the transactions contemplated by the Agreements and the Notes.
4.3 Investment Representations and Warranties.
| (a) | Information About the
Company - The Investor has obtained all information about the Company that the Investor
believes relevant to the decision to purchase the Note. The Investor has also had the opportunity
to ask questions of, and receive answers from, the Company or an agent or a representative
of the Company concerning the terms and conditions of the investment and the business and
affairs of the Company, and to obtain any additional information necessary to verify such
information, and the Investor has received such information concerning the Company as the
Investor considers necessary or advisable in order to form a decision concerning an investment
in the Company. The Investor acknowledges and understands that any information provided about
the Company’s future plans and prospects is uncertain and subject to all of the uncertainties
inherent in future predictions, understands that this investment involves a high degree of
risk, and is able to bear that risk. The Investor also understands that this transaction
has not been scrutinized by the United States Securities and Exchange Commission (the “Commission”)
or by any state agency or other authority. |
| (b) | Residency
- The Investor is a citizen of the United States, a resident of the State of Minnesota, and
over eighteen (18) years of age. |
| (c) | Investment Experience
- The Investor understands that the purchase of the Note involves a high degree of risk,
including the risk of loss of all investment in the Company. The Investor is experienced
and knowledgeable in financial and business matters generally and as an investor in securities
of companies in the development stage. The Investor further acknowledges that the Investor
can bear the economic risk of this investment in the Note, that the Investor is capable of
evaluating the merits and risks of this investment in the Note and protecting the Investor’s
interest in connection with this investment, and that the Investor believes that an investment
in the Note is appropriate and suitable for the Investor. |
| (d) | Relationship with Company
- The Investor (i) is a director or executive officer of the Company; (ii) has a preexisting
personal or business relationship with the Company or one or more of its directors, officers
or control persons; or (iii) by reason of the Investor’s business or financial experience,
or by reason of the business or financial experience of the Investor’s financial advisor
who is unaffiliated with and who is not compensated, directly or indirectly, by the Company
or any affiliate or selling agent of the Company, is capable of evaluating the risks and
merits of this investment and of protecting the Investor’s own interests in connection with
this investment |
| (e) | No General Solicitation
- To the best knowledge of the Investor, the Notes hereby subscribed for were not advertised
for sale to the general public in any publication or by any other media or by mail or telephone. |
| (f) | Accredited Status
- The Investor is knowledgeable regarding the definition of an “accredited investor”
as defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the
“Securities Act”), and qualifies as an accredited investor thereunder. |
| (g) | Investment
Purpose — The Investor acknowledges that the Notes have not been registered under
the Securities Act or any state law and will be issued to the Investor in reliance on Investor’s
agreements, representations and warranties set forth herein. The Investor shall sell, assign,
or transfer the Notes only in compliance with this Agreement, the Securities Act and applicable
state law. |
5.
Covenants of the Company and Investors.
5.1
Issuance of Superior Debt; Subordination of Rights; Release of Security Interest.
| (a) | Except
as set forth in the following sentence, after the Closing the Company shall not issue additional
debt superior to the Notes. Notwithstanding the foregoing, the Company may issue an amount
of debt superior to the Notes (“Superior Debt”) up to an amount equal to
4.75 times the Company’s EBITDA (earnings before interest, taxes, depreciation and amortization,
calculated in accordance with generally accepted accounting principles (“GAAP”))
for the most recent twelve month period, determined monthly on a rolling basis. This figure
will be calculated each month. |
| (b) | In connection with any Superior Debt, upon request of the Company, the Investors shall subordinate their
rights under this Agreement, the Notes, and the Security Agreement to the person(s) lending such Superior Debt, and shall execute such
subordination agreements and other documents evidencing such subordination, on such terms as the Company and such lender(s) may reasonably
request. If any Additional Investor refuses or fails to timely deliver any such subordination agreement or other document, the officers
of the Company shall have the right and power to execute the same for, in the name, and on behalf of such Additional Investor, without
any liability to such Investor. |
| (c) | If the party or parties providing any
Superior Debt financing to the Company require, following commercially reasonable efforts
by the Company to have such party or parties to accept a subordinated security interest in
the Company’s assets, that the Investors agree to terminate the Security Agreement and release
their security interest in the Company’s assets as a condition to closing the Superior Debt,
the Company shall notify the Investors in writing of such requirement, and the Security Agreement
will be terminated and the security interest described therein released upon the written
consent of Investors holding Notes representing, in the aggregate, a majority of the total
outstanding principal balance of all notes then outstanding (determined on the basis of the
amount then advanced to the Company, not the maximum amount of the Notes) (a “Majority
in Interest of the Investors”); provided, however, that in all cases a Majority
in Interest of the Investors must also include the Initial Investor or permitted assignees/transferees
of the Initial Investor holding, in the aggregate, a majority of the total outstanding principal
balance of the Note originally issued to the original Initial Investor hereunder (determined
on the basis of the outstanding principal amounts owed under Note or replacement Notes issued
pursuant to Section 8.5 of this Agreement). |
5.2
Sale or Change of Control of the Company. After the Closing and without the prior written consent
of a Majority in Interest of the Investors, the Company shall not affect a change of control of the Company, whether occurring through
merger, sale of assets or stock, exchange of securities or otherwise. With respect to any sale of stock, merger or exchange, a change
of control shall mean any transaction or series of related transactions following which the stockholders of the Company immediately prior
to the closing of such transaction cease to directly and beneficially own, in the aggregate, a majority of the Company’s voting securities
on a fully diluted basis.
5.3
Financial Information. So long as any amount is due and owing under the Notes, the Company will deliver to the Investors within thirty
(30) days of the end of any quarter, an income statement and balance sheet showing year to date and a comparison for the same period
last year. The Initial Investor shall have the right to audit the Company’s books upon reasonable notice no more than once each twelve
months at its own expense (provided that if the audit shows a an underpayment of more than 5% of the interest owed to the Investors under
the Notes, then the Company shall reimburse the cost of the audit). An officer of the Company shall certify such financials.
5.4
Release of Noncompete Agreements. All doctors employed by the Company are and shall continue, except as provided below, to be bound
by a noncompete agreement in favor of the Company. The Company shall not revise the noncompete provisions of any such agreement with
any of its doctor-employees, or release any doctor-employee from any such noncompete provisions, without the prior written consent of
a Majority in Interest of the Investors.
5.5
Special Rights of Initial Investor. After the Closing, and until the Note issued to the Initial Investor have been paid in full,
the Initial Investor shall have the following rights:
| (a) | Right of First Negotiation. If
the Company desires to issue any additional debt, whether or not the additional debt is Superior
Debt, but excluding any debt issued to a shareholder of the Company in connection with the
redemption of such shareholder’s shares of stock in the Company, the Company shall notify
Nick Swenson in writing of such desire. Nick Swenson shall then have a right of first negotiation
with the Company to negotiate the possible investment of additional funds to satisfy the
Company’s desire to raise additional funds. The parties agree to negotiate in good faith
any such possible additional investment; provided, however, that the Company shall not be
obligated to accept any proposal or terms offered by Nick Swenson. After a reasonable period
of time, not to exceed fifteen days, the Company shall be free to pursue other financing
opportunities, including, but not limited to, the issuance of Superior Debt, but subject
to the covenants, terms and conditions set forth in this Agreement, the Notes, and the Security
Agreement. The rights of Nick Swenson under this Section 5.5(a) may be assigned by him, and
only by him, once to a single assignee designated by him in writing and delivered to the
Company. |
| (b) | Contingent
Interest. In consideration for the significant investment being made by the Initial Investor
alone, the Company shall pay the Initial Investor, as additional interest, an amount equal
to twenty percent (20%) of any Net Damages (as defined below) received by the Company. “Net
Damages” shall mean the amount of cash damages awarded to and received by the Company
in connection with the pending litigation between the Company, Dental Specialists of Minnesota,
P.A., American Dental Partners, Inc. and PDHC, Ltd., excluding (i) amounts awarded and intended
to be a return of Company funds or other assets, and (ii) Two Million Five Hundred Thousand
Dollars ($2,500,000). Any amount payable to the Initial Investor pursuant to this subsection
shall be due and payable within five (5) business days after the Company actually receives,
in cash, the Net Damages. |
5.6
Consent by Investors. Each Investor, including any permitted assignee or transferee of an Investor, but excluding Nick Swenson and
any entity directly or indirectly controlled by Nick Swenson personally, agrees that he, she or it shall not unreasonably delay, condition
or withhold any consent or approval that is requested or required of such Investor under this Agreement or the Security Agreement. In
the event a consent is requested after December 31, 2009 by the Company of a Majority in Interest of the Investors pursuant to this Agreement,
such consent shall be deemed to be given by any Investor that fails to respond to the Company within ninety (90) days of the Company
having sent to such Investor a request for consent to the Investor’s last known address on the books and records of the Company. This
Section 5.6 shall not apply to any consent contemplated pursuant to Section 8.1 below.
6. Conditions
to Closing of the Investors. Each Investor’s obligations at the Closing are subject to the fulfillment, on or prior to
the Closing Date, of all of the following conditions, any of which may be waived in whole or in part by all of the Investors:
6.1 Representations and Warranties. The representations and warranties made by the Company in Section 3 hereof shall have been true and correct when made, and shall be true and correct in all material respects on the Closing Date.
6.2 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Investors.
6.3 Transaction Documents. The Company shall have duly executed and delivered to the Investors the following documents: this Agreement, the Security Agreement and each Note issued hereunder.
6.4 Consents, Permits and Waivers. The Company shall have obtained any and all consents, permits and waivers necessary or appropriate for consummation of the transactions contemplated by the Agreement (except for such as may be properly obtained subsequent to the Closing). Without limiting the foregoing, Signature Bank shall have terminated and released its security interest in the Company’s assets.
6.5 UCC filing. The Company shall have filed or shall agree to file within one business day after the Closing a UCC financing statement, in a form reasonably satisfactory to the Investors, listing the Investors as secured lenders (which may be satisfied by listing the Initial Investor, as agent for all Investors under this Agreement).
6.6 Expense Reimbursement. The Company shall have reimbursed Investors’ counsel’s fees and expenses in accordance with Section 8.3 of this Agreement.
6.7 Minimum Investment. The Company shall have received Counterparts from Additional Investors committing to pay a minimum of Six Hundred Thousand Dollars ($600,000) to the Company pursuant to this Agreement and the Notes.
7.
Conditions to Obligations of the Company.
The Company’s obligation to issue and sell the Notes at the Closing is subject to the fulfillment, on or prior to the Closing Date,
of the following conditions, any of which may be waived in whole or in part by the Company:
7.1
Representations and Warranties. The representations and warranties made by the Investors in Section 4 hereof shall be true and
correct when made, and shall be true and correct in all material respects on the Closing Date.
7.2
Purchase Price. Each Investor shall have delivered to the Company the Purchase Price in respect of the Note being purchased by
such Investor referenced in Section 1.1 hereof.
8.
Miscellaneous.
8.1 Waivers and Amendments. Any provision of this Agreement may be amended, waived or modified only upon the written consent of the Company and a Majority in Interest of the Investors. Any such amendment so approved shall be binding upon all parties to this Agreement, including without limitation all Investors.
8.2 Governing Law. This Agreement and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to the conflicts of law provisions of the State of Minnesota or of any other state.
8.3 Expenses. The Company and the Investors shall each pay their own expenses in connection with the transactions contemplated by this Agreement; provided, however, that if the Closing is effected, the Company shall reimburse the reasonable documented fees of and expenses of Renaissance Law Group, P.A., counsel to the Investors, such amount not to exceed $10,000. In the event an Investor fails to pay any amount owed to the Company when due, such Investor shall owe the Company interest on such amount at the rate provided for in the Notes. In addition, under the foregoing circumstances, or if any Investor fails to execute any document reasonably requested of it in connection with the subordination required pursuant to Section 5.1 of this Agreement, the Investor shall pay all costs and expenses, including reasonable attorneys’ fees and court costs, incurred by the Company in enforcing its rights under this Agreement against such Investor.
8.4
Successors and Assigns; Right to Prepay Notes Issued to Additional Investors.
| (a) | Except as provided in this Section 8.4(a) or in Section 8.4(b) below, neither this Agreement nor any rights,
duties and obligations hereunder or any Note, may be assigned, transferred, delegated or sublicensed by any Investor without the prior
written consent of the Company; provided, however, that the Initial Investor may assign and transfer his rights hereunder, including under
his Note (except for his rights under Section 5.5(a) of this Agreement which may be assigned only once as provided by Section 5.5(a)),
to any other person or entity so long as the assignee or transferee is not a competitor of the Company and so long as such assignment
or transfer is in compliance with applicable federal and state securities laws. For purposes of this Agreement, a competitor of the Company
shall include any person or entity directly or indirectly, through any affiliates or otherwise, engaged in the practice of dentistry or
the business of managing dental clinics, including, but not limited to, American Dental Partners, Inc., PDHC, Ltd., and any of their subsidiaries,
affiliates, directors, officers, or key employees, but shall not include any dentist actively employed by the Company. Any attempt by
an Investor without such permission to assign, transfer, delegate or sublicense any rights, duties or obligations that arise under this
Agreement shall be void. |
| (b) | Right
to Prepay Notes Issued to Additional Investors. Each Additional Investor hereby grants
the Company the right to prepay any Note originally issued to an Additional Investor following
such Additional Investor’s death, upon the terms and conditions hereinafter set forth. The
Company shall have up to one hundred eighty (180) days following its receipt of actual notice
of the death of an Additional Investor to pay all principal and all unpaid interest then
accrued under such Note, whereupon the Note shall be cancelled. The Company shall be deemed
to have actual notice of the death of an Additional Investor whenever an officer of the Company
receives actual notice thereof. If the Company does not exercise its right of prepayment,
then notwithstanding Section 8.4(a) above, the Note held by a deceased Additional Investor,
and the related rights under this Agreement, may be transferred pursuant to the will or laws
of intestacy applicable to such Additional Investor’s interest in the Note. |
| (c) | Subject to the foregoing, the provisions of this Agreement shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. |
8.5 Transfer and Replacement of the Notes. The Company will keep, at its principal executive office, books for the registration and registration of transfer of the Notes. No Note may be assigned or transferred except as provided in Section 8.4. Prior to presentation of any Note for registration of transfer, the Company shall treat the person in whose name such Note is registered as the owner and holder of such Note for all purposes whatsoever, whether or not such Note shall be overdue, and the Company shall not be affected by notice to the contrary. Subject to any restrictions on or conditions to transfer set forth in Section 8.4, the holder of any Note, at its option, may in person or by duly authorized attorney surrender the same for exchange at the Company’s chief executive office, and promptly thereafter and at the Company’s expense, except as provided below, receive in exchange therefor one or more new Note(s), each in the principal requested by such holder, dated the date to which interest shall have been paid on the Note so surrendered or, if no interest shall have yet been so paid, dated the date of the Note so surrendered and registered in the name of such person or persons as shall have been designated in writing by such holder or its attorney for the same principal amount as the then unpaid principal amount of the Note so surrendered. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it; or (b) in the case of mutilation, upon surrender thereof, the Company, at its expense, will execute and deliver in lieu thereof a new Note executed in the same manner as the Note being replaced, in the same principal amount as the unpaid principal amount of such Note and dated the date to which interest shall have been paid on such Note or, if no interest shall have yet been so paid, dated the date of such Note.
8.6 Assignment by the Company. The rights, interests or obligations hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of a Majority in Interest of the Investors.
8.7 Entire Agreement. This Agreement (including all schedules and exhibits hereto), together with the Security Agreement, the Notes, and all Counterparts, constitute and contain the entire agreement among the Company and Investors and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof.
8.8 Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and faxed, mailed or delivered to each party as follows: (a) if to an Investor, at such Investor’s address or facsimile number set forth in the Schedule II or such Investor’s Counterpart, as applicable, or at such other address as such Investor shall have furnished the Company in writing, or (b) if to the Company, marked “Personal and Confidential,” 1835 County Road C — West, Suite 245, Roseville, Minnesota 55113-1343, Attn: Chief Executive Officer, or at such other address as the Company shall have furnished to the Investors in writing, with a copy to Larkin Hoffman Daly & Lindgren Ltd., Attn: Todd Freeman, Esq., 7900 Xerxes Avenue South, Suite 1500, Minneapolis, Minnesota 55431, Fax no. (952) 896-3333. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being deposited with an overnight courier service of recognized standing, (iv) four days after being deposited in the U.S. mail, first class with postage prepaid, or (v) if sent by facsimile, upon confirmation of facsimile transfer.
8.9 Severability of this Agreement. Unless otherwise expressly provided herein, the rights of each Investor hereunder are several rights, not rights jointly held with any of the other Investors. Any invalidity, illegality or limitation on the enforceability of the Agreement or any part thereof, by any Investor whether arising by reason of the law of the respective Investor’s domicile or otherwise, shall in no way affect or impair the validity, legality or enforceability of this Agreement with respect to other Investors. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
8.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile copies of signed signature pages will be deemed binding originals.
[Signature Page Follows]
The parties have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of the date and year first written above.
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COMPANY: |
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PDG,
P.A. |
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By: |
/s/ [Illegible] |
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Name: |
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Title: |
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INITIAL INVESTOR: |
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/s/ Nick Swenson |
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Nick Swenson |
SCHEDULE I
COUNTERPART SIGNATURE
PAGE
FOR ADDITIONAL INVESTORS
The undersigned
hereby agrees to be bound as an “Additional Investor” by and pursuant to that certain Senior Secured Note Purchase Agreement
dated September , 2007 (the “Purchase Agreement”), by and among PDG, P.A., Nick Swenson,
and all other persons who have or hereafter execute a Counterpart signature page similar to this Counterpart. Unless otherwise defined
herein, all capitalized terms used in this Counterpart shall have the same meanings as are set forth in the Purchase Agreement.
The undersigned Additional Investor further agrees as follows:
1. The undersigned’s
Pro Rata Share of the Minimum Investment is .
2.
The undersigned’s Pro Rata Share of the combined Minimum Investment and Discretionary Investment,
assuming no Additional Initial Investor Investment, is .
This amount is the maximum amount of investment that may be made and required of the undersigned pursuant to the Purchase
Agreement.
3. The undersigned shall pay his or her Pro Rata Share of (a) the initial Tranche to the Company at the Closing, (b) the remainder of the Minimum Investment, and (c) any Discretionary Investment, all as provided in Section 1.3 of the Purchase Agreement.
4. All payments on account of the Note issued to the undersigned, and all notices to the undersigned given pursuant to the Purchase Agreement, shall be sent to the following address or to such other address as the registered holder of the Note issued to the undersigned shall direct pursuant to Section 8.8 of the Purchase Agreement:
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Attn: |
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Tel.: ( ) - |
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Fax: ( ) - |
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5. The undersigned has read the Purchase Agreement, including but not limited to the representations and warranties made by the undersigned pursuant to Section 4 of the Purchase Agreement, and agrees to be bound thereby as an “Additional Investor” and “Investor”.
The undersigned, intending to be legally bound hereby and by the Purchase Agreement, has executed and delivered this Counterpart effective as of the date indicated below. This Counterpart may not be revoked without the written consent of the Company.
| Dated: ______________, 2007 |
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(Signature) |
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(Print Name) |
Accepted by the Company:
PDG, P.A.
SCHEDULE II
INITIAL INVESTOR INFORMATION
By his execution of the Agreement, the Initial Investor agrees
as follows:
1. The Initial Investor’s Minimum Investment is $1,600,000. The maximum amount to be advanced by the Initial Investor is $2,100,000.
2. The Initial Investor shall pay $550,000 to the Company at the Closing, and shall pay the remainder of the Minimum Investment as provided in Section 1.3 of the Purchase Agreement.
3.
All payments on account of the Note issued to the
Initial Investor or otherwise due to the Initial Investor pursuant to the Purchase Agreement, and all notices to the Initial
Investor given pursuant to the Purchase Agreement, shall be sent to the following address or to such other address as the registered
holder of the Note issued to the undersigned shall direct pursuant to Section 8.8 of the Purchase
Agreement:
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2900 Thomas Ave S #2321 |
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Minneapolis, MN 55416 |
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Attn: |
Nick Swenson |
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Tel.: |
(612) 703 - 2292 |
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Fax: |
( ) ___-____ |
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4. The Initial
Investor has read the Purchase Agreement, including but not limited to the representations and warranties made by the Initial Investor
pursuant to Section 4 of the Purchase Agreement, and agrees to be bound thereby as an “Initial Investor” and “Investor”.
SCHEDULE
III
MINIMUM
INVESTMENTS
| Payment Date | |
Initial Investor | | |
Additional Investors (collectively) | |
| October 12 | |
$ | 550,000 | | |
$ | 200,000 | |
| November 1 | |
$ | 360,000 | | |
$ | 140,000 | |
| December 1 | |
$ | 360,000 | | |
$ | 140,000 | |
| January 1 | |
$ | 330,000 | | |
$ | 120,000 | |
| February 1 | |
| | | |
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| Total Minimum Investment | |
$ | 1,600,000 | | |
$ | 600,000 | |
SCHEDULE IV
SCHEDULE OF EXCEPTIONS
TO
COMPANY REPRESENTATIONS
AND WARRANTIES
Exception to all Representations and Warranties:
| · | The Company’s execution and delivery of the Security Agreement and the Notes violates
certain loan covenants the Company has with Signature Bank, and the Company’s assets are subject to a security interest in favor of Signature
Bank. While the Company’s line of credit with Signature Bank will remain in place, Signature Bank will terminate and release its security
interest in the Company’s assets prior to the Closing. |
| · | The Company is presently engaged in litigation with American Dental Partners, Inc.
and PDHC, Ltd., the Company’s long-time management company. The results of this litigation are likely to have a material impact on the
Company, whether positively or negatively. |
Other Specific Exceptions:
| · | Section 3.2 – The Company owns approximately 40% of the outstanding shares of
Dental Specialists of Minnesota, P.A. |
| · | Sections 3.4 and 3.5 – The Company has employment agreements with its doctors
and Peter Swenson. It also has committed to benefit plans for the benefit of its employees. The Company is party to agreements with its
shareholders relating to the redemption of its stock. The Company has loaned funds to some of its employees pursuant to revolving promissory
notes. The Company and some employees have deferred their compensation. The Company has borrowed money from PDHC, Ltd. pursuant to the
Service Agreement (as such term is defined below) and the Company has a loan outstanding with its rabbi trust. |
| · | Section 3.5 – A director of the Company is also a shareholder of Dental Specialists of Minnesota P.A., an affiliate of the Company. |
| · | Section 3.6 – The Company obtains the use of substantially all of the assets
used in its business pursuant to the Amended and Restated Service Agreement dated January 1, 1999, as amended, to which it is a party with PDHC, Ltd. (“Service
Agreement”). |
| · | Section 3.7 – PDHC, Ltd. has claimed that the granting of a security interest
by the Company violates the Service Agreement. |
| · | Section 3.8 – Due to ongoing breaches by PDHC, Ltd. of the Service Agreement, the Company’s current
relationship with PDHC, Ltd. has resulted in violations by the Company of various federal and state laws, including those relating to
patient information, enabling the unlawful practice of dentistry and qualified retirement plans. The Company, through its litigation with
PDHC, Ltd. and other means, is attempting to rectify all such violations as soon as such violations are identified. |
| · | Section 3.9 – Due to incorrect accounting and treatment of certain items by PDHC, Ltd., the Company
does have exposure for sales and income taxes of an undetermined amount. None of these issues have arisen in recent audits by taxing authorities. |
| · | Section 3.10 – Peter Swenson and all doctors employed by the Company are subject to, and receive
the benefit of, employment agreements which include noncompete restrictions in favor of the Company. |
Exhibit A
FORM OF NOTE
See attached.
PDG, P.A.
SENIOR SECURED PROMISSORY
NOTE
Maximum Investment Amount: «Note_Dollar_Amount»
Minneapolis, MN |
October 12, 2007 |
For
Value Received, PDG, P.A., a Minnesota professional association (“Borrower”), hereby unconditionally
promises to pay to the order of «LENDER» (“Lender”), in lawful money of the United States
of America and in immediately available funds, the principal sum of «Note_Spelled_Amount» («Note_Dollar Amount»),
or the aggregate principal amount advanced by Lender to Borrower pursuant to that certain Senior Secured Note Purchase Agreement dated
September __, 2007, by and among Borrower, Lender, and other lenders thereunder (as the same may from time to time be amended, modified
or supplemented or restated, the “Purchase Agreement”), whichever is less, together with accrued and unpaid
interest thereon, each due and payable on the dates and in the manner set forth below. Capitalized terms used herein but not otherwise
defined shall have the meanings given to them in the Purchase Agreement.
This Note is one
of a series of similar Notes executed and delivered in connection with the Purchase Agreement and the Security Agreement referenced therein
(together, the “Loan Agreements”). Additional rights and obligations of the Lender and Borrower are set forth
in the Loan Agreements. So long as the Borrower is not in Default as described in Section 7 of this Note, the Lender shall deliver to
the Borrower the Minimum Investment under this Note in tranches according to the following schedule:
| October 12, 2007 |
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| November 1, 2007 |
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| December 1, 2007 |
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| January 1, 2008 |
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In addition, the
Lender shall deliver additional amounts which may be required to be delivered by the Lender, if any, pursuant to Section 1.3 of the Purchase
Agreement. The aggregate of all such tranches and additional amounts delivered to Borrower shall be the aggregate principal balance of
this Note.
1.
Repayment. This Note shall mature on October 1, 2037 or, if earlier, upon the election of the Investors made pursuant to
Section 8 below following the occurrence of an Event of Default. The holder hereof shall also have the right, upon not less than one
hundred twenty (120) days prior written notice to Borrower, to accelerate the maturity of this Note
and cause it to mature on a date that is 7, 10, 15 or 20 years after the date of this Note.
2. Interest.
Borrower further promises to pay interest on the outstanding principal amount hereof from the date hereof until payment in full. Interest
shall be paid quarterly, within fifteen (15) days after the end of each calendar quarter of Borrower (i.e., on April 15, July 15, October
15, and January 15 of each year), but with the first payment due April 15, 2008, for interest accrued through March 31, 2008. Interest
shall be the greatest of:
2.1 14%
per annum multiplied by the principal balance of this Note, based on actual days outstanding on the basis of a 365 or 366 -day year,
as the case may be;
2.2 an
amount equal to (calculated as of the end of the prior calendar year for the next calendar year, so for example, calculated as of the
end of 2007 for interest accruing in 2008): (a) the Salary Factor (as defined below); multiplied by the (b) Average Dentist Compensation
(as defined below); multiplied by (c) the Note Factor (as defined below); or
2.3 an
amount equal to (calculated as of the end of the prior calendar year for the next calendar year, so for example, calculated as of the
end of 2007 for interest accruing in 2008): (a) the Salary Factor; multiplied by (b) 20% of the Total Revenue (as defined below); divided
by (c) the “Annual FTEs” (as defined below); multiplied by (d) the Note Factor (as defined below).
For purposes of this Note:
(i) “Annual
FTEs” shall mean, for a given year, the sum of the Individual FTEs for such year.
(ii) “Average
Dentist Compensation” shall mean, as to a year: all pre-tax salary, bonus or other payments paid by Borrower and its affiliates
in such year to Employed Dentists (excluding non-cash benefits but not excluding elective salary reductions to a 401(k) plan); divided
by the Annual FTEs for such year.
(iii)
“Employed Dentist”’ shall mean a general and specialty dentist employed by Borrower or its affiliates.
(iv)
“Individual FTEs” shall be calculated each
year for each Employed Dentist as provided below. In the event an Employed Dentist has a change in his/her regular clinical
schedule, then such Employed Dentist’s Individual FTE shall be separately calculated for each time period relating to each such
schedule. “Individual FTE” for an Employed Dentist in a given year shall equal:
(a)
the number of hours per week that such Employed Dentist is regularly scheduled; divided by
(b) thirty-six (36); multiplied by
(c) the
number of months (or portions thereof) during such year in which such Employed Dentist was employed pursuant to such schedule;
divided by
(d) twelve (12).
(ii)
“Note Factor” shall mean the then-current principal balance of this Note divided by 1,000,000.
(iv)
“Salary Factor” shall equal 140,000 divided by the Average Dentist Compensation for the year 2007. The
Salary Factor will be calculated after the Borrower has final numbers for 2007, and will remain fixed.
(v)
“Total Revenue” shall mean the Borrower’s total net revenue as determined in accordance with GAAP, except that
Total Revenue shall not include any damages or other consideration awarded or otherwise realized to the Borrower in connection with the
pending lawsuit between the Borrower, Dental Specialists of Minnesota, P.A., American Dental Partners, Inc. and PDHC, Ltd. (the “PDHC
Litigation”). “Net revenue” shall be gross revenues less any allowances, discounts, and bad debt expense.
The calculations and operation
of the provisions of this Section 2 are illustrated in the examples attached hereto, and made a part hereof, as Exhibit A.
Notwithstanding the
foregoing, interest for the period from the date of this Note through December 31, 2007, shall be determined pursuant to Section 2.1
above, without regard to Sections 2.2 or 2.3.
Upon the occurrence and
during the continuance of any Event of Default, the principal balance of this Note may bear interest at the rate of one and a half times
the normal rate, including after the commencement of, and during the pendency of, any bankruptcy or other insolvency proceeding, if the
Investors so elect pursuant to Section 8 below.
3. Secured
Note. The full amount of this Note is secured by the collateral identified and described as security therefor in the Security Agreement.
Borrower shall not, directly or indirectly, create, permit or suffer to exist, and shall defend the collateral against and take such
other action as is necessary to remove, any Lien (as defined in the Security Agreement) on or in the collateral, or in any portion thereof,
except as permitted pursuant to the Loan Agreements. The Security Agreement may be terminated and released as provided in the Loan Agreements.
4.
Prepayment. This Note may not be prepaid without the written consent of the Lender, except as otherwise provided in Section
8.4(b) of the Purchase Agreement.
5.
Place of Payment. All amounts payable hereunder shall be payable as directed by Lender pursuant to the Purchase Agreement.
6.
Application of Payments. Payment on this Note, if any, shall be applied first to expenses and costs payable hereunder,
then to accrued interest, and thereafter to the outstanding principal balance hereof.
7. Default.
Each of the following events shall be an “Event of Default” hereunder:
(a) Borrower fails
to pay timely any of the principal amount or any accrued interest or other amounts due under this Note, providing that Borrower does not
make such payment within five days after receiving written notice of such failure to pay;
(b) Borrower fails to generally
pay its debts as they become due, or files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium
law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of
creditors or takes any corporate action in furtherance of any of the foregoing;
(c) An involuntary petition
is filed against Borrower (unless such petition is dismissed or discharged within 60 days) under any bankruptcy statute now or hereafter
in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession,
custody or control of any property of Borrower;
(d)
Any material representation or warranty made by the Borrower herein or in the Loan Agreements shall prove to have been false or
misleading in any material respect when made;
(e)
The Borrower is in default of any of its obligations under any Indebtedness in excess of $50,000 and such default is not waived
or cured within any applicable cure period (excluding any amounts owing pursuant to the PDHC Litigation);
(f)
A judgment in the aggregate amount of at least $5,000,000 is rendered against the Borrower and is unsatisfied or unstayed for thirty
(30) days;
(g) In
the event the outstanding balance of any Superior Debt as of the end of the month exceeds 4.75 times the Borrower’s then current
twelve (12) month EBITDA, determined monthly on a rolling basis, for three (3) consecutive months or for six (6) months out of any
period of twelve (12) consecutive months;
(h)
In the event of a breach of any covenant of Borrower listed in the Purchase Agreement and such breach is not cured within ten (10)
days after written notice thereof; or
(i)
In the event that the interest rate calculated under Section 2 exceeds the maximum rate allowed under applicable law.
Borrower shall provide
Lender with Prompt written notice of any Event of Default, other than a default described in Section 7(a) above.
“Indebtedness”
means (i) all indebtedness for borrowed money, (ii) all obligations evidenced by notes, bonds, debentures or similar instruments, (iii)
all capital lease obligations and (iv) any direct or indirect liability, contingent or otherwise, of the Borrower with respect to any
indebtedness or other liability or obligation of another person, including without limitation, any such liability or obligation guaranteed,
endorsed or co-made by the Borrower, but not including any checks or other negotiable instruments endorsed by Borrower in the ordinary
course of its business.
8. Remedies.
Upon the occurrence and during the continuance of any Event of Default, for any Event of Default other than the Borrower being in bankruptcy,
an amount equal to the principal balance of this Note then outstanding, plus all unpaid accrued interest thereon and all other amounts
owing hereunder (collectively, the “Default Obligation”) shall, at the sole election of a Majority in Interest
of the Investors, be immediately due, payable and collectible by Lender pursuant to applicable law, or at the election of such Majority
in Interest of the Investors the interest rate shall be one and a half times the applicable rate. Any such election by a Majority in
Interest of the Investors shall be binding on the holder hereof.
9. Cumulative
Remedies. Lender’s rights and remedies under this Note and the Loan Agreements shall be cumulative. Lender shall have all other rights
and remedies not inconsistent herewith as provided under the Uniform Commercial Code, by law or in equity. No exercise by Lender of one
right or remedy shall be deemed an election, and no waiver by Lender of any Event of Default shall be deemed a continuing waiver.
10. Creditor’s
Rights. Borrower waives presentment and demand for payment, notice of dishonor, protest and notice of protest of this Note. The right
to plead any and all statutes of limitations as a defense to any demands hereunder is hereby waived to the full extent permitted by law.
The Borrower hereby acknowledges that the Lender shall be entitled to recover, and the undersigned agrees to pay when incurred, all costs
and expenses of collection of this Note, including without limitation, reasonable attorneys’
fees.
11.
Usury. All agreements between the Borrower and Lender, whether now
existing or hereafter arising and whether written or oral, are expressly limited so that in no contingency or event whatsoever, whether
by acceleration of the maturity of this Note or otherwise, shall the amount paid, or agreed to be paid, to the Borrower for the use,
forbearance or detention of the money to be loaned hereunder or otherwise, exceed the maximum amount permissible under applicable law.
12.
Governing Law. This Note shall be governed by, and construed and enforced
in accordance with, the laws of the State of Minnesota, excluding conflict of laws principles that would cause the application of laws
of any other jurisdiction.
13.
Further Action. In the event that the interest is amended because
of Section 11 above or the interest calculated under Section 2 exceeds the maximum rate allowed under applicable law, then the Borrower
shall negotiate in good faith to negotiate a new note which meets the original intent of the parties.
14.
Amendment and Waiver. This Note may be amended, together with all similar Notes purchased pursuant to the Purchase Agreement,
as provided in Section 8.1 of the Purchase Agreement, which amendment shall be binding upon the holder hereof.
15.
Transfer. This Note may be transferred only in accordance with Section 8.4 of the Purchase Agreement.
16.
Successors and Assigns. The provisions of this Note shall inure to the benefit of and be binding on any successor to Borrower
and shall extend to any permitted holder hereof.
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]
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BORROWER: |
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PDG, P.A. |
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By: |
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Name: |
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Title: |
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Signature
Page to Senior Secured
Promissory
Note
«Lender»
EXHIBIT A
CALCULATION AND OPERATION
OF SECTION 2
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$1,600,000 |
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| Calculation of Salary Factor: |
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|
|
| 14% of 1,000,000 base |
|
|
140,000 |
|
|
|
|
| Average Dentist Compensation: |
|
|
|
|
|
|
|
| 2007 Dentist Compensation |
|
|
|
|
|
|
|
| (*example only —not actual) |
21,000,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
| 2007 Annual FTEs |
104.8 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
| Salary Factor |
|
|
200,382 |
|
|
|
|
| |
|
0.6987 |
|
|
|
|
| |
|
|
|
|
|
|
Interest Calculation (example using 2006 figures)
| Greatest of: |
|
|
|
|
|
|
|
| |
|
|
|
|
Interest Amount |
|
|
| Section 2.1 |
14% |
|
|
|
$ |
224,000 |
|
|
| Section 2.2 |
|
|
|
|
|
|
|
|
| Salary Factor (from example above – not
actual) |
|
|
0.6987 |
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Average Dentist Compensation: |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Dentist Compensation for the year |
20,081,612 |
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Annual FTEs for the year |
103.22 |
|
194,552 |
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Note Factor: |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Principal Balance of Note |
1,600,000 |
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| base note amount |
1,000,000 |
|
1.6 |
|
$ |
217,494 |
|
|
| Section 2.3 |
|
|
|
|
|
|
|
|
| Salary Factor (from example
above – not actual) |
|
|
0.6987 |
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Total Revenue for the year |
87,014,416 |
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| 20% |
|
|
17,402,883 |
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Annual FTEs for the year |
|
|
103.22 |
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Note Factor |
|
|
1.6 |
|
$ |
188,481 |
|
|
| |
|
|
|
|
|
|
|
|
| Interest for Year (greatest amount) |
|
|
|
|
$ |
224,000 |
|
|
EXAMPLE OF ANNUAL FTE CALCULATION:
| | |
| | |
| | |
Dr. Charles (Jan- | | |
Dr. Charles (May- | |
| Individual FTEs: | |
Dr. Able | | |
Dr. Baker | | |
Apr) | | |
Dec) | |
| hours per week in regular schedule | |
| 36 | | |
| 22 | | |
| 40 | | |
| 36 | |
| standard hours per week | |
| 36 | | |
| 36 | | |
| 36 | | |
| 36 | |
| months in the year under the schedule | |
| 12 | | |
| 12 | | |
| 4 | | |
| 8 | |
| total months in the year | |
| 12 | | |
| 12 | | |
| 12 | | |
| 12 | |
| Individual FTE | |
| 1.0 | | |
| 0.61 | | |
| 0.37 | | |
| 0.67 | |
| | |
| | | |
| | | |
| | | |
| | |
| Annual FTEs | |
| 2.65 | | |
| | | |
| | | |
| | |
Exhibit B
SECURITY AGREEMENT
See attached.
SECURITY AGREEMENT
THIS SECURITY
AGREEMENT (this “Security Agreement” or the “Agreement”) is made and entered into as of October
12, 2007 (the “Effective Date”) by and between PDG, P.A., a Minnesota professional association (“Debtor”);
and Nick Swenson (“Swenson”), as agent for all “Investors” (as defined in the Note Purchase Agreement defined
below) (individually, a “Secured Party” and collectively, the “Secured Parties”). All capitalized terms
used in this Security Agreement and not otherwise defined shall have the respective meanings ascribed to them in the Note Purchase Agreement
(as defined below).
1. Creation
of Security Interest; Term and Termination.
(a) Debtor hereby
grants to the Secured Parties a security interest with superior priority to all other security interests (except for the Permitted Liens
as such term is defined in Section 4(b) below) in the Collateral described in Section 2 of this Security Agreement to secure the prompt
and complete performance and payment of all of the obligations of Debtor under the Senior Secured Note Purchase Agreement dated September
26, 2007 by and between Debtor and the Secured Parties (the “Note Purchase Agreement”) and all obligations and indebtedness
of Debtor arising from the Notes (the “Secured Notes”) issued to the Secured Parties by the Debtor pursuant to the Note
Purchase Agreement, and all obligations of the Debtor under this Security Agreement, including, but not limited to, the obligations and
indebtedness of Debtor to the Secured Parties described in Section 3 (the Note Purchase Agreement, the Secured Notes, and this Security
Agreement are collectively referred to as the “Loan Documents”) (collectively, the “Indebtedness” or
“Secured Obligations”).
(b) This Security
Agreement is subject to Section 5.1 of the Note Purchase Agreement. This Security Agreement, and the security interest granted hereby,
shall terminate upon the full performance, payment and satisfaction of all of the Indebtedness, or with the written consent of a Majority
in Interest of the Investors. Until termination of this Agreement, the Secured Parties’ security interest in the Collateral, and all proceeds
and products thereof, shall continue in full force and effect.
2.
Collateral. In order to secure the payment when due of any and all Indebtedness, Debtor hereby pledges to the Secured Parties
and grants to the Secured Parties a security interest in and to the following properties (collectively, the “Collateral”):
(a) All of Debtor’s
inventory (as defined in the Minnesota Uniform Commercial Code (the “UCC”)), both now owned and hereafter acquired,
including, without limitation, all goods, merchandise, raw materials, goods in process, finished goods and other tangible personal property
both now owned and hereafter acquired by Debtor and held for sale or lease or furnished or to be furnished under contracts of service
or used or consumed in Debtor’s business, and all proceeds thereof and any products made or processed from such inventory, as well as
all additions and accessions thereto and substitutions and replacements for any thereof;
(b) All
of Debtor’s tangible personal property, both now owned and hereafter acquired, including, without limitation, all equipment, consumer
goods, furniture, fixtures, machinery, operating equipment, assembly and production equipment, engineering and electrical equipment,
and all proceeds of any thereof, including, without limitation, all tapes, cards, computer runs and other papers and documents in the
possession or under the control of the Debtor or any computer bureau or service company from time to time acting for the Debtor, as well
as all additions and accessions thereto and substitutions and replacements for any thereof;
(c) All of Debtor’s
intangible personal property, cash on hand and cash in, and deposits with, banks or other financial institutions, whether now owned
or hereafter acquired, including, without limitation, all accounts, chattel paper, documents, instruments and general intangibles,
as those terms are defined in the UCC in the local law of the jurisdiction where the Collateral is located, as in effect on the date
hereof, all contracts, shares of stock, bonds, notes, evidences of indebtedness and other securities, bills, notes and accounts
receivable, interests in life insurance policies, trademarks, trade names, patents, patent rights, copyrights, claims, credits,
choses in action, licenses, permits, franchises and grants;
(d) All
awards in respect of any “Taking” (as used herein, a “Taking” shall mean a taking, conveyance or sale of all
or any part of the Collateral or any interest therein or right accruing thereto, as a result of, or in lieu or anticipation of, the exercise
of the right of appropriation, confiscation, condemnation or eminent domain);
(e) All rents, income and issues arising
from or in connection with, and all proceeds of, any of the foregoing; and
(f) All other real,
personal and mixed (tangible and intangible) property of every character and wherever situated, now owned and hereafter acquired (other
than property that may be held by Debtor pursuant to leases) by Debtor.
3. Payment
Obligations of Debtor.
(a) Debtor shall pay to the
Secured Parties any sum or sums due or which may become due pursuant to the Secured Notes in accordance with the terms of the Secured
Notes and the terms of this Security Agreement and any and all renewals, rearrangements or extensions of the Secured Notes and all of
the obligations under the Note Purchase Agreement.
(b) Debtor shall account
fully and faithfully to the Secured Parties for proceeds from disposition of the Collateral in any manner and, following an Event of Default
(as defined below) hereunder, shall pay or turn over promptly in cash, negotiable instruments, drafts, assigned accounts or chattel paper,
all of the proceeds from each sale to be applied to Debtor’s Indebtedness to the Secured Parties, subject, if other than cash, to final
payment or collection.
(c) Following an
Event of Default hereunder or under the Secured Notes or under the Note Purchase Agreement, Debtor shall pay to the Secured Parties on
demand all reasonable expenses and expenditures (including, but not limited to, reasonable fees and expenses of legal counsel) incurred
or paid by the Secured Parties in exercising or protecting its interests, rights and remedies under this Security Agreement, plus interest
thereon at the rate set forth in the Secured Notes.
4. Representations,
Warranties and Agreements of Debtor. Debtor represents and warrants to the Secured Parties the following; the following are modified
by and subject to the Schedule of Exceptions attached to the Note Purchase Agreement:
(a) All information
supplied and statements made by Debtor in any financial, credit or accounting statement or provided to the Secured Parties prior to, contemporaneously
with or subsequent to the execution of this Security Agreement are and shall be true, correct, complete, valid and genuine in all material
respects as of the date made.
(b) Except
for the security interests granted in this Security Agreement and the Permitted Liens, no financing statement covering the Collateral
or its proceeds is on file in any public office and there is no lien, security interest or encumbrance (“Lien”) in or on the
Collateral. “Permitted Liens” shall mean (1) such Liens which arise in Debtor’s ordinary course of business and both
(i) do not materially impair the Debtor’s ownership or use of the Collateral and (ii) are junior to and do not adversely affect the security
interests granted hereunder to the Secured Parties, and (2) any senior lien permitted in connection with “Superior Debt” pursuant
to Section 5.1 of the Note Purchase Agreement.
(c) The location where Debtor
maintains its chief executive office is 1835 County Road C-West, Suite 245, Roseville, Minnesota 55113-1343. The Debtor represents and
warrants that it has no subsidiaries or other entities through which it operates its business.
(d) The Collateral
shall remain in Debtor’s possession or control, as applicable, at all times at Debtor’s risk of loss until as authorized in writing by
the Secured Parties.
(e) Until an Event of Default,
Debtor may use the Collateral in any lawful manner not inconsistent with this Security Agreement or with the terms or conditions of any
policy of insurance thereon. The Secured Parties’ security interest shall attach to all proceeds of sales, licenses and other dispositions
of the Collateral.
(f) Debtor will provide the
Secured Parties with prior written notice of any change in the location of its chief executive office as set forth in Section 4(c) of
this Security Agreement and of any change in the domicile of Debtor.
(g)
Debtor shall pay prior to delinquency all taxes, charges,
Liens and assessments against the Collateral except those Debtor is contesting in good faith and for which adequate accruals have
been made, and upon Debtor’s failure to do so after ten days’ prior written notice, the Secured Parties may, at the option of the
Secured Parties, pay any of them and the Secured Parties shall be the sole judge of the legality or validity thereof and the amount
necessary to discharge the same. Such payment shall become part of the Indebtedness secured by this Security Agreement and shall be
paid to the Secured Parties by Debtor immediately and without demand, with interest thereon at the rate set forth in Section 3(c)
hereof.
(h)
Debtor will have and maintain insurance at all times with respect
to all Collateral against risks of fire, theft and such other risks as the Secured Parties may reasonably require (but in no event
shall Debtor be obligated to insure such collateral in an amount greater than the replacement value thereof), including extended
coverage, and in the case of motor vehicles, including collision coverage. Within ten (10) days after the date hereof, Debtor shall
amend such insurance policies to contain a standard mortgagee’s endorsement providing for payment of any loss to the Secured Parties
and to provide for ten (10) days’ written minimum cancellation notice to the Secured Parties. Within a reasonable time after
execution of this Security Agreement, Debtor shall furnish to the Secured Parties evidence of compliance with the foregoing
insurance provisions. After the occurrence and during the continuance of an Event of Default, the Secured Parties may (i) act as
attorney for Debtor in obtaining, adjusting, settling and canceling such insurance and endorsing any drafts drawn by insurers of the
Collateral, and (ii) apply any proceeds of such insurance which may be received by it in payment on account of the obligations
secured hereby.
(i) Debtor shall, at its own expense,
do, make, procure, execute and deliver all agreements and assurances as the Secured Parties, may at any time reasonably request to
protect, assure or enforce the Secured Parties’ interests, rights and remedies created by, provided in or emanating from this
Security Agreement, including with respect to filings with the Patent and Trademark Office. Debtor will execute financing statements
and take whatever other actions are reasonably requested by the Secured Parties to perfect and continue the Secured Parties’
security interests in the Collateral. After the occurrence and during the continuance of an Event of Default, upon the request of
the Secured Parties, the Debtor will deliver to the Secured Parties, any and all of the documents evidencing or constituting the
Collateral (if applicable), and the Debtor will note the Secured Parties’ interests upon any and all of such documents if not
delivered to the Secured Parties for possession by it. Debtor hereby agrees that a carbon, photographic, photostatic or other
reproduction of this Security Agreement or of a financing statement is sufficient as a financing statement where permitted by
law.
(j) Except in the
ordinary course of business, Debtor shall not sell, lend, license, rent, lease or otherwise dispose of the Collateral or any interest
therein except as authorized in this Security Agreement or in writing by the Secured Parties, which consent shall not be unreasonably
delayed, conditioned or withheld, and Debtor shall keep the Collateral, including the proceeds thereof, free from unpaid charges, including
taxes, and from Liens other than the Permitted Liens.
(k) Debtor
shall keep accurate and complete records of the Collateral and its proceeds.
(1) Debtor is the owner of
the Collateral free of all Liens, except for the Permitted Liens.
(m) As to that
portion of the Collateral which is accounts, Debtor represents, warrants and agrees with respect to each such account that:
(i) The account
arose from the performance of services by Debtor which have been performed or from the lease or the absolute sale of goods by Debtor in
which Debtor had the sole and complete ownership, and the goods have been shipped or delivered to the account debtor.
(ii)
The account is not subject to any prior or subsequent assignment or Lien other than the Permitted Liens.
(iii)
The account is not subject to set-off, counterclaim, defense, allowance or adjustment other than discounts for prompt payment shown
on the invoice, or to dispute, objection or complaint by the account debtor concerning its liability on the account, and the goods,
the sale or lease of which gave rise to the account, have not been returned, rejected, lost or damaged.
(iv) The account
arose in the ordinary course of Debtor’s business. Debtor shall promptly give the Secured Parties written notice upon Debtor receiving
actual notice of any bankruptcy or insolvency of any material account debtor.
(n) All books or records relating to the
Collateral are located at the Company’s chief executive office.
(o) All of the Collateral is located in Minnesota.
(p)
No person or entity other than the Debtor, such as lessees, consignees, or warehousemen, has possession or is intended to have
possession of any of the Collateral.
5. Events
of Default. Debtor shall be in default under this Security Agreement upon the happening of any condition or event set forth below
(each, an “Event of Default”):
(a) An Event of Default
(as defined in the Secured Notes or the Note Purchase Agreement and subject to Secured Party’s right to increase the interest rate in
lieu of repayment) or a material default under the Secured Notes or the Note Purchase Agreement, if such default shall continue unremedied
for a period of ten (10) days following written notice of default by the Secured Parties to Debtor.
(b) Default
by Debtor in the punctual performance of any of the material obligations, covenants, terms or provisions contained or referred to in
this Security Agreement, as amended, replaced or modified if such default shall continue unremedied for a period of ten (10) days
following written notice of default by the Secured Parties to Debtor.
(c) Any statement
of the financial condition of Debtor or of any guarantor, surety or endorser of any liability of Debtor to a Secured Party submitted to
a Secured Party by Debtor or any such guarantor, surety or endorser proves to be false in any material respect when made.
Debtor shall provide the Secured
Parties with prompt written notice of any Event of Default, except for Events of Default arising out of Debtor’s failure to make any payments
under the Secured Notes when due.
6. Secured
Parties’ Rights and Remedies.
(a) Rights in Event of Default.
In addition to any other rights which the Secured Parties may have at law or hereunder, upon the occurrence of an Event of Default, and
at any time thereafter during the continuance thereof, the Secured Parties may:
(i)
Declare all obligations
secured hereby immediately due and payable and the Secured Parties shall have the rights and remedies of a “secured party”
under the applicable UCC, including, without limitation, the right to sell, lease or otherwise dispose of any or all of the
Collateral and the right to take possession of the Collateral, and for that purpose the Secured Parties may enter any premises on
which the Collateral or any part thereof may be situated and remove the same therefrom, so long as the same may be accomplished
without a breach of the peace. The Secured Parties may require Debtor to assemble the Collateral and make it available to the
Secured Parties at a place to be designated by the Secured Parties which is reasonably convenient to the Secured Parties and
thereafter hold the Collateral absolutely free from any claim or right whatsoever, including any right or equity of
redemption (statutory or otherwise) of the Debtor, and such demand, notice and right or equity being hereby expressly waived and
released. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a
recognized market, the Secured Parties will send Debtor reasonable notice of the time and place of any public sale thereof or of the
time after which any private sale or other disposition thereof is to be made. The requirement of sending reasonable notice shall be
met if such notice is sent to Debtor at least ten (10) days before the time of the sale or disposition. Expenses of retaking,
holding, preparing for sale, selling or the like shall include the Secured Parties’ reasonable fees and expenses (including, but not
limited to, reasonable fees and expenses of legal counsel), and Debtor agrees to pay such reasonable fees and expenses, plus
interest thereon at the rate set forth in Section 3(c) hereof. Debtor shall remain liable for any
deficiency hereunder or under the Secured Notes;
(ii)
Notify the accounts of Debtor or obligors of any accounts, chattel paper, negotiable instruments or other evidences of indebtedness remitted
by Debtor to the Secured Parties as proceeds to pay the Secured Parties directly;
(iii)
Execute, sign, endorse, transfer or deliver in the name of Debtor, notes, checks, drafts or other instruments for the payment of money
and receipts, certificates of origin, applications for certificates of title or any other documents, necessary to evidence, perfect or
realize upon the security interest and obligations created by this Security Agreement;
(iv) Agree
to discharge taxes and Liens at any time levied or placed on the Collateral, may pay for the insurance on the Collateral and may pay
for the maintenance and preservation of the Collateral. Debtor agrees to reimburse the Secured Parties on demand for any payment
made, or expense incurred by it pursuant to the foregoing authorization, plus interest thereon at the rate set forth in Section 3(c)
hereof, and will indemnify and hold the Secured Parties harmless from and against liability in connection therewith; and
(v) Remedy any
default and may waive any default without waiving or being deemed to have waived any other prior or subsequent default.
(b) Private
Sale. The Secured Parties shall not incur any liability as a result of a private sale of the Collateral, or any part thereof, at
any sale pursuant to this Section 6 conducted in good faith. Debtor hereby waives any claims against the Secured Parties arising by the
reason of the fact that the price at which the Collateral may have been sold at such private sale was less than the price that might
have been obtained at a public sale or was less than the aggregate amount of the Indebtedness, even if the Secured Parties accepts the
first offer received and does not offer the Collateral to more than one offeree.
(c) Deficiency.
If the proceeds of sale, collection or other realization of or upon the Collateral pursuant to this Section 6 are insufficient to cover
the costs and expenses of such realization and the payment in full of the Indebtedness, Debtor shall remain liable for any deficiency.
(d) Ratable
Treatment of Secured Notes. Debtor hereby acknowledges and agrees that in terms of payments in respect of the Secured Notes and from
the proceeds of any Collateral, each Secured Party shall be treated ratably in accordance with its share (the “Pro Rata Share”)
of the aggregate dollar amount outstanding under the Secured Notes at any given time based upon a fraction, (i) the numerator of which
shall be equal to the outstanding dollar amount of the Secured Notes held by such Secured Party at such time and (ii) the denominator
of which shall be equal to the aggregate dollar amount outstanding under all of the Secured Notes at such time. Debtor shall execute
and deliver such additional documents and take such additional action as may be necessary or desirable in the reasonable opinion of the
Secured Agent (as defined below), on behalf of the Secured Parties, to effectuate the provisions and purposes of the provisions of Section
7 hereof.
7. Intercreditor
Arrangement.
(a) The
Secured Parties agree (i) as to the certain rights and priorities of each with respect to the Secured Obligations and with respect
to their respective liens upon and security interest in the Collateral and (ii) as to provide for the orderly sharing between the
Secured Parties of the proceeds of such Collateral upon any foreclosure thereon or other disposition thereof, to the intercreditor
arrangement set forth in this Section 7.
(b) Payments
Held in Trust/Turnover, Application of Payments.
(i) In the event that
any payment or distribution of assets of Debtor, whether in cash, property or securities, which is prohibited by any of the Loan Documents,
shall be received by a Secured Party in contravention of such Loan Document, such payment or distribution shall be held in trust for the
benefit of and shall be paid over to or delivered to the other Secured Parties for application in accordance with the terms hereof.
(ii) All payments
of principal, interest, fees and expenses after the issuance of the Secured Notes, and proceeds of the Collateral shall be apportioned
ratably between the Secured Parties, in accordance with each Secured Party’s Pro Rata Share.
(c) Permitted
Liens and Relative Priorities. As between the Secured Parties, and notwithstanding the terms (including the description of Collateral),
dating, execution, or delivery of any Loan Document; the time, order, method, or manner of granting, attachment or perfection of any
Lien; the time of filing or recording of any financing statements, assignments, deeds of trust, mortgages, or any other documents, instruments,
or agreements under the UCC or any other applicable law, and any provision of the UCC or any other applicable law to the contrary, the
Secured Parties agree that Swenson (the “Secured Agent”), not individually but on behalf of all of the Secured Parties,
shall have a Lien upon the Collateral.
For purposes of the
foregoing allocation of priorities, any claim of a right to a setoff shall be treated in all respects as a security interest and no claimed
right of setoff shall be asserted to defeat or diminish the rights or priorities provided for herein.
(d) No Alteration of Priority.
The Lien priorities provided in Section 7(c) hereof shall not be altered or otherwise affected by any amendment, modification, supplement,
extension, renewal, restatement or refinancing of any of the Secured Obligations nor by any action or inaction which any Secured Parties
may take or fail to take in respect of the Collateral. Each Secured Party consents to Debtor’s granting to each other Secured Party of
the Liens reflected in Section 7(c) hereof.
(e) Nonavoidability and
Perfection. The provisions of this Section 7 are intended solely to govern the respective priorities as between the Secured Parties.
Each Secured Party agrees that it will not directly or indirectly take any action to contest or challenge the validity, legality, perfection,
priority, availability, or enforceability of the liens of the other Secured Party upon the Collateral or seek to have the same avoided,
disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise. In the event that any Secured Party breaches
or causes to be breached the terms of the preceding sentence, resulting (directly or indirectly) in the avoidance or imperfection of
the Secured Agent’s Lien held on behalf of all of the Secured Parties in some or all of the Collateral, then the priority of the Lien
of the Secured Parties in any such affected Collateral shall continue to be governed by the terms of Section 7(c) hereof irrespective
of the avoidance or imperfection of the Secured Agent’s Lien held on behalf of all of the Secured Parties.
(f) Management of Collateral.
Notwithstanding anything to the contrary contained in any of the Secured Notes (with respect to provisions addressing management of Collateral
only):
(i)
Until the Secured Obligations have been paid in full
and subject to the remaining provisions of this Section 7: (i) the Secured Agent, on behalf of the Secured Parties, shall have
the exclusive right to manage, perform, and enforce the terms of the Loan Documents with respect to the Collateral and to exercise and
enforce all privileges and rights thereunder in its reasonable discretion and its exercise of its business judgment, including, without
limitation, the exclusive right to enforce or settle insurance claims with respect to Collateral, take or retake control or possession
of Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate Collateral; (ii) the other Secured Parties
shall not exercise or take any action in furtherance of the sale, foreclosure, realization upon, or the repossession or liquidation of
any of the Collateral, including, without limitation: (A) the exercise of any remedies or rights of a “Secured Creditor”
under Article 9 of the UCC, such as, without limitation, the notification of account debtors; (B) the exercise of any remedies or rights
as a mortgagee or beneficiary (or by the trustee on behalf of the beneficiary), including, without limitation, the appointment of a receiver,
or the commencement of any foreclosure proceedings or the exercise of any power of sale, including, without limitation, the placing of
any advertisement for the sale of any Collateral; (C) the exercise of any remedies available to a judgment creditor; or (D) any other
remedy available in respect of the Collateral available to the other Secured Parties under any of the Loan Documents (the “Secured
Parties Remedies”) with respect to Collateral; and (iii) any and all proceeds of Collateral which shall come into the possession,
control, or custody of any Secured Party will be deemed to have been received for the account of all of the Secured Parties, and, if
not received by the Secured Agent, shall be immediately paid over to the Secured Agent for application in accordance with the provisions
hereof. The other Secured Parties waive any and all rights to affect the method or challenge the appropriateness of any action by the
Secured Agent with respect to the Collateral other than actions arising out of the willful misconduct of the Secured Agent, and waive
any claims or defenses it may have against the Secured Agent, including any such claims or defenses based on any actions or omissions
of any such person in connection with the perfection, maintenance, enforcement, foreclosure, sale, liquidation or release of any Lien
therein, or any modification or waiver of the Loan Documents specifically relating to the management of the Collateral other than those
arising out of the willful misconduct of the Secured Agent.
(ii) The
rights and priorities set forth in this Section 7 shall remain binding irrespective of the terms of any plan of reorganization in any
proceeding commenced by or against Debtor under any provision of the United States Bankruptcy Code (11 U.S.C. § 101, etseq.),
as amended, and any successor statute (the “Bankruptcy Code”) or under any other federal or state bankruptcy or insolvency
law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with its creditors,
or proceedings seeking reorganization, arrangement, or other similar relief, and all converted or succeeding cases in respect thereof
(the “Bankruptcy Case”) or other provisions of the Bankruptcy Code or any similar federal or state statute.
(g) Sale
of Collateral. Until the Secured Obligations have been paid in full: (a) only the Secured Agent on behalf of the Secured Parties
shall have the right to restrict or permit, or approve or disapprove, the sale, transfer or other disposition of the Collateral; and
(b) each other Secured Party will, immediately upon the request of the Secured Agent, release or otherwise terminate its Lien upon the
Collateral, to the extent such Collateral is sold or otherwise disposed of by Debtor with the consent of the Secured Agent, and the other
Secured Parties will immediately deliver such release documents as the Secured Agent may require in connection therewith, provided, that
the proceeds of any given sale shall be applied to the Secured Obligations of each Secured Party in accordance with its Pro Rata Share.
Debtor may rely on any consent granted by the Secured Agent as constituting the consent of all Secured Parties.
(h) Sections
9-611 and 9-620 Notice and Waiver of Marshalling. Each Secured Party hereby acknowledges that this Security Agreement shall constitute
notice of the other Secured Parties’ respective interests in the Collateral as provided by Sections 9-611 and 9-620 (provided that if
the Secured Agent seeks to exercise any rights under Section 9-620, it shall provide the other Secured Parties with the notices required
thereunder) of the UCC and each of the Secured Parties waives any right to compel the other Secured Parties to marshal any of the Collateral
or to seek payment from any particular assets of Debtor or from any third party.
(i) Bankruptcy
Issues.
(i) Except as provided in this
Section 7(i), this Section 7 shall continue in full force and effect after the commencement of a Bankruptcy Case and shall apply
with full force and effect with respect to all Collateral acquired by Debtor, and to each Secured Party’s Secured Obligations
incurred by Debtor, subsequent to such commencement.
(ii) If
Debtor shall become subject to a Bankruptcy Case, the Secured Agent may permit the use of cash collateral or to provide
post-petition financing to Debtor. No objection will be raised by the other Secured Parties to the Secured Agent’s motion for relief
from the automatic stay in any proceeding under the Bankruptcy Code to foreclose on and sell the Collateral.
| (iii) | In any Bankruptcy Case by or against Debtor: |
| (A) | The Secured Agent may, and is hereby irrevocably authorized and empowered (in its own name or in the name
of the Secured Parties or otherwise), but shall have no obligation, to, (1) demand, sue for, collect and receive every payment or distribution
in respect of the Secured Obligations and give acquittance therefor and (2) file claims and proofs of claim in respect of all of the Secured
Obligations and take such other action (including, without limitation, voting all of the Secured Notes or enforcing any Lien securing
payment of all of the Secured Obligations) as the Secured Agent may reasonably deem necessary or advisable for the exercise or enforcement
of any of the rights or interests of the Secured Parties; and |
| (B) | The other Secured Parties will duly and promptly take such action as the Secured Agent may reasonably
request (1) to collect the Secured Obligations and to file appropriate claims or proofs of claim with respect thereto, (2) to execute
and deliver to the Secured Agent such powers of attorney, assignments or
other instruments as the Secured Agent may reasonably request in order to enable it to enforce any and all claims with respect to, and
any Liens securing payment of, the Secured Obligations, and (3) to collect and receive any and all payments or distributions which may
be payable or deliverable upon or with respect to the Secured Obligations for application to the Secured Parties in accordance with this
Security Agreement. |
(j) Notice
of Default and Certain Events. Debtor and each Secured Party shall send written notice to the other Secured Parties upon the occurrence
of any default or event of default under a Loan Document.
(k) Bailment.
With respect to any Collateral in which a security interest may be perfected under the UCC or other relevant law only by possession (“Possessory
Collateral”), the Secured Agent will act as pledgeholder for the Secured Parties until the payment in full in cash of the Secured
Obligations. The other Secured Parties acknowledge and agree that: (i) the Secured Agent makes no representation or warranty whatsoever
as to the nature, extent, description, validity or priority of any Possessory Collateral or the Liens upon any Possessory Collateral;
(ii) while any Possessory Collateral is held by the Secured Agent, the Secured Agent shall not have any liability to, and shall be held
harmless by, the parties, for any losses, damages, claim, or liability of any kind to the extent arising out of the holding of such Possessory
Collateral, other than losses, damages, claims, or liabilities arising out of the Secured Agent’s gross negligence, recklessness, or
willful misconduct; (iii) the Secured Agent need not act as a pledgeholder for the other Secured Parties with respect to any Collateral
in which a security interest may be perfected by means other than possession; (iv) the other Secured Parties shall immediately deliver
to the Secured Agent any Possessory Collateral that is now or in the future comes into their possession to be held by the Secured Agent
pursuant to the terms hereof; and (v) the priority of the Secured Parties’ Liens upon the Possessory Collateral shall be governed by
the terms of this Security Agreement.
(1) Authority
of Agents/Trustees. Each of the Secured Parties agrees that any assignment or transfer of an interest in any of the Secured Obligations
held by it shall be made expressly subject to the terms and conditions of this Security Agreement.
(m) Successor
Secured Agent. In the event the original Secured Agent hereunder is no longer able or qualified to serve as the Secured Agent hereunder,
the Secured Parties may, by vote of a majority of their respective Pro Rata Shares, designate a successor who shall serve as the Secured
Agent hereunder, with all rights, duties, indemnities and obligations of the original or any previous successor Secured Agent hereunder.
Swenson as Secured Agent hereunder shall cease to be the Secured Agent hereunder if at any time Swenson’s Pro Rata Share (including the
Pro Rata Share of any entities directly or indirectly controlled by Swenson) is less than twenty-five percent (25%), unless Swenson is
thereafter confirmed or elected as Secured Agent by the Secured Parties, by vote of a majority of their respective Pro Rata Shares.
(n) Subordination.
Each Secured Party shall subordinate its rights under this Agreement to any lender issuing any “Superior Debt” as required
by Section 5.1 of the Note Purchase Agreement
8. Miscellaneous.
(a) Notices.
Any notice required or permitted by this Security Agreement shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified; (ii) when delivered by confirmed facsimile transmission if received during normal business hours
of the recipient on a business day, or if not, then on the next business day; or (iii) one (1) business day after deposit with a nationally
recognized overnight courier, specifying next business day delivery, with written verification of receipt. All communications shall be
sent to the Debtor and the Secured Parties at the addresses set forth on Schedule 1 attached hereto or at such other address as the Debtor
or such Secured Parties may designate by ten (10) days’ advance written notice to the other parties hereto.
(b) Construction.
“Secured Parties” and “Debtor,” as used in this instrument, include the administrators, successors,
representatives, receivers, trustees and assigns of such party.
(c) Headings.
The headings appearing in this instrument have been inserted for convenience of reference only and shall be given no substantive meaning
or significance whatever in construing the terms and provisions of this instrument.
(d) Governing
Law. The law governing this secured transaction shall be that of the State of Minnesota in force at the date of this instrument
(e) Further
Assurances. All property acquired by Debtor after the date hereof shall, immediately upon the acquisition thereof and without further
mortgage, conveyance or assignment, become subject to the lien of this Security Agreement as fully as though now owned by Debtor and
specifically described herein. Nevertheless, Debtor will do all such further acts and execute, acknowledge and deliver all such further
conveyances, mortgages, financing statements and assurances as the Secured Parties shall reasonably require for accomplishing the purposes
of this Security Agreement.
(f) Rights
Cumulative; No Waiver. The rights and remedies of the Secured Parties hereunder are cumulative, and the exercise (or waiver) of any
one or more of the remedies provided for herein shall not be construed as a waiver of any of the other rights and remedies of the Secured
Parties. No delay on the part of the Secured Parties in the exercise of any power or right under this Security Agreement or under any
other instrument executed pursuant hereto shall operate as a waiver thereof, nor shall a single or partial exercise of any power or right
preclude other or further exercise thereof or the exercise of any other power or right.
(g)
Successors and Assigns. The rights and obligations of the
Secured Parties and the Debtor hereunder may not be transferred or assigned by any party without the prior written consent of the
Secured Parties and Debtor, except the Secured Parties may transfer or assign their rights and obligations under this Security
Agreement to any assignee without such consent, and in such case the assignee shall be entitled to all of the rights, privileges and
remedies granted in this Security Agreement to such Secured Parties, provided that the transfer is in connection with a concurrent
assignment or transfer of the applicable Secured Note to such assignee and is permitted under or made in accordance with Section 8.4
of the Note Purchase Agreement; and in such event the Debtor will not assert any claims or defenses, other than a defense that it
has performed its obligations under the Loan Documents, it may have against the Secured Parties against the assignee, except those
granted in this Security Agreement. Any assignee of Debtor or a Secured Party shall agree in writing prior to the effectiveness of
such assignment to be bound by the provisions hereof. All of the stipulations, promises and agreements in this Security Agreement
made by Debtor shall bind the successors and assigns of Debtor, whether so expressed or not, and inure to the benefit of the
successors and permitted assigns of Debtor and the Secured Parties.
(h) Severability.
If one or more provisions of this Security Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate
such provision(s) in good faith, in order to maintain or achieve the economic position enjoyed by each party as close as possible to
that under the provision(s) rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement
for such provision(s), then (i) such provision(s) shall be excluded from this Security Agreement, (ii) the balance of this Security Agreement
shall be interpreted as if such provision(s) were so excluded and (iii) the balance of this Security Agreement shall be enforceable in
accordance with its terms.
(i) Amendment
and Waiver. Any term of this Security Agreement may be amended or waived only with the written consent of the Debtor and the Secured
Parties; any waiver by the Secured Agent shall be deemed a waiver by all Secured Parties. Any amendment or waiver effected in accordance
with this Section 8(i) shall be binding upon the Debtor, the Secured Parties, and each transferee of the Secured Notes. Any waiver by
the Debtor or the Secured Parties of a breach of any provision of this Security Agreement shall not operate as or be construed to be
a waiver of any other breach of such provision or of any breach of any other provision of this Security Agreement. The failure of the
Debtor or the Secured Parties, to insist upon strict adherence to any term of this Security Agreement on one or more occasions shall
not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term
of this Security Agreement.
(j) Entire
Agreement. The Loan Documents constitute the full understanding between the parties hereto with respect to the subject matter hereof,
and no statements, written or oral, made prior to or at the signing hereof shall vary or modify the terms hereof.
[Signature pages to follow]
IN WITNESS WHEREOF, the undersigned parties
have executed this Security Agreement on and as of the Effective Date.
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DEBTOR: |
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PDG, P.A, |
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By: |
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Name: |
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Title: |
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SECURED PARTIES: |
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Nick Swenson,
as agent for all investors |
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Nick Swenson, agent |
SCHEDULE 1
ADDRESSES FOR PARTIES
PDG, P.A.
____________
Minneapolis, MN ______
Facsimile: _______________
Attention: CEO
with a copy to:
Todd I. Freeman, Esq.
Larkin Hoffman Daly & Lindgren Ltd.
Mailing Address:
7900 Xerxes Avenue South
Suite 1500
Minneapolis, MN 55431
Facsimile: (952) 896-3333
Nick Swenson
Facsimile: __________
with a copy to:
Frank Vargas, Esq.
Renaissance Law Group, P.A.
Mailing Address:
3500 Vicksburg Lane N
#235
Plymouth, MN 55447
Facsimile:
Exhibit 10.6
SECURITY
AGREEMENT
THIS SECURITY
AGREEMENT (this “Security Agreement” or the “Agreement”) is made and entered into as of October
12, 2007 (the “Effective Date”) by and between PDG, P.A., a Minnesota professional association (“Debtor”);
and Nick Swenson (“Swenson”), as agent for all “Investors” (as defined in the Note Purchase Agreement defined
below) (individually, a “Secured Party” and collectively, the “Secured Parties”). All capitalized terms
used in this Security Agreement and not otherwise defined shall have the respective meanings ascribed to them in the Note Purchase Agreement
(as defined below).
1. Creation
of Security Interest; Term and Termination.
(a) Debtor hereby
grants to the Secured Parties a security interest with superior priority to all other security interests (except for the Permitted Liens
as such term is defined in Section 4(b) below) in the Collateral described in Section 2 of this Security Agreement to secure the prompt
and complete performance and payment of all of the obligations of Debtor under the Senior Secured Note Purchase Agreement dated September
26, 2007 by and between Debtor and the Secured Parties (the “Note Purchase Agreement”) and all obligations and indebtedness
of Debtor arising from the Notes (the “Secured Notes”) issued to the Secured Parties by the Debtor pursuant to the Note
Purchase Agreement, and all obligations of the Debtor under this Security Agreement, including, but not limited to, the obligations and
indebtedness of Debtor to the Secured Parties described in Section 3 (the Note Purchase Agreement, the Secured Notes, and this Security
Agreement are collectively referred to as the “Loan Documents”) (collectively, the “Indebtedness” or
“Secured Obligations”).
(b) This Security
Agreement is subject to Section 5.1 of the Note Purchase Agreement. This Security Agreement, and the security interest granted hereby,
shall terminate upon the full performance, payment and satisfaction of all of the Indebtedness, or with the written consent of a Majority
in Interest of the Investors. Until termination of this Agreement, the Secured Parties’ security interest in the Collateral, and all proceeds
and products thereof, shall continue in full force and effect.
2. Collateral.
In order to secure the payment when due of any and all Indebtedness, Debtor hereby pledges to the Secured Parties and grants to the Secured
Parties a security interest in and to the following properties (collectively, the “Collateral”):
(a) All of Debtor’s
inventory (as defined in the Minnesota Uniform Commercial Code (the “UCC”)), both now owned and hereafter acquired,
including, without limitation, all goods, merchandise, raw materials, goods in process, finished goods and other tangible personal property
both now owned and hereafter acquired by Debtor and held for sale or lease or furnished or to be furnished under contracts of service
or used or consumed in Debtor’s business, and all proceeds thereof and any products made or processed from such inventory, as well as
all additions and accessions thereto and substitutions and replacements for any thereof;
(b) All of
Debtor’s tangible personal property, both now owned and hereafter acquired, including, without limitation, all equipment, consumer
goods, furniture, fixtures, machinery, operating equipment, assembly and production equipment, engineering and electrical equipment,
and all proceeds of any thereof, including, without limitation, all tapes, cards, computer runs and other papers and documents in
the possession or under the control of the Debtor or any computer bureau or service company from time to time acting for the Debtor,
as well as all additions and accessions thereto and substitutions and replacements for any thereof;
(c)
All of Debtor’s intangible personal property, cash on hand and cash in, and deposits with, banks or other financial institutions,
whether now owned or hereafter acquired, including, without limitation, all accounts, chattel paper, documents, instruments and
general intangibles, as those terms are defined in the UCC in the local law of the jurisdiction where the Collateral is located, as
in effect on the date hereof, all contracts, shares of stock, bonds, notes, evidences of indebtedness and other securities, bills,
notes and accounts receivable, interests in life insurance policies, trademarks, trade names, patents, patent rights, copyrights,
claims, credits, choses in action, licenses, permits, franchises and grants;
(d) All awards in respect
of any “Taking” (as used herein, a “Taking” shall mean a taking, conveyance or sale of all or any part of
the Collateral or any interest therein or right accruing thereto, as a result of, or in lieu or anticipation of, the exercise of the
right of appropriation, confiscation, condemnation or eminent domain);
(e) All rents, income and issues arising
from or in connection with, and all proceeds of, any of the foregoing; and
(f) All other real,
personal and mixed (tangible and intangible) property of every character and wherever situated, now owned and hereafter acquired (other
than property that may be held by Debtor pursuant to leases) by Debtor.
3. Payment
Obligations of Debtor.
(a) Debtor shall pay to the
Secured Parties any sum or sums due or which may become due pursuant to the Secured Notes in accordance with the terms of the Secured
Notes and the terms of this Security Agreement and any and all renewals, rearrangements or extensions of the Secured Notes and all of
the obligations under the Note Purchase Agreement.
(b) Debtor shall account
fully and faithfully to the Secured Parties for proceeds from disposition of the Collateral in any manner and, following an Event of Default
(as defined below) hereunder, shall pay or turn over promptly in cash, negotiable instruments, drafts, assigned accounts or chattel paper,
all of the proceeds from each sale to be applied to Debtor’s Indebtedness to the Secured Parties, subject, if other than cash, to final
payment or collection.
(c) Following an
Event of Default hereunder or under the Secured Notes or under the Note Purchase Agreement, Debtor shall pay to the Secured Parties on
demand all reasonable expenses and expenditures (including, but not limited to, reasonable fees and expenses of legal counsel) incurred
or paid by the Secured Parties in exercising or protecting its interests, rights and remedies under this Security Agreement, plus interest
thereon at the rate set forth in the Secured Notes.
4. Representations,
Warranties and Agreements of Debtor. Debtor represents and warrants to the Secured Parties the following; the following are modified
by and subject to the Schedule of Exceptions attached to the Note Purchase Agreement:
(a) All information
supplied and statements made by Debtor in any financial, credit or accounting statement or provided to the Secured Parties prior to, contemporaneously
with or subsequent to the execution of this Security Agreement are and shall be true, correct, complete, valid and genuine in all material
respects as of the date made.
(b) Except
for the security interests granted in this Security Agreement and the Permitted Liens, no financing statement covering the Collateral
or its proceeds is on file in any public office and there is no lien, security interest or encumbrance (“Lien”) in or on
the Collateral. “Permitted Liens” shall mean (1) such Liens which arise in Debtor’s ordinary course of business
and both (i) do not materially impair the Debtor’s ownership or use of the Collateral and (ii) are junior to and do not adversely
affect the security interests granted hereunder to the Secured Parties, and (2) any senior lien permitted in connection with “Superior
Debt” pursuant to Section 5.1 of the Note Purchase Agreement.
(c) The location where Debtor
maintains its chief executive office is 1835 County Road C-West, Suite 245, Roseville, Minnesota 55113-1343. The Debtor represents and
warrants that it has no subsidiaries or other entities through which it operates its business.
(d) The Collateral
shall remain in Debtor’s possession or control, as applicable, at all times at Debtor’s risk of loss until as authorized in writing by
the Secured Parties.
(e) Until an Event of Default,
Debtor may use the Collateral in any lawful manner not inconsistent with this Security Agreement or with the terms or conditions of any
policy of insurance thereon. The Secured Parties’ security interest shall attach to all proceeds of sales, licenses and other dispositions
of the Collateral.
(f) Debtor will provide the
Secured Parties with prior written notice of any change in the location of its chief executive office as set forth in Section 4(c) of
this Security Agreement and of any change in the domicile of Debtor.
(g) Debtor shall pay
prior to delinquency all taxes, charges, Liens and assessments against the Collateral except those Debtor is contesting in good
faith and for which adequate accruals have been made, and upon Debtor’s failure to do so after ten days’ prior written notice, the
Secured Parties may, at the option of the Secured Parties, pay any of them and the Secured Parties shall be the sole judge of the
legality or validity thereof and the amount necessary to discharge the same. Such payment shall become part of the Indebtedness
secured by this Security Agreement and shall be paid to the Secured Parties by Debtor immediately and without demand, with interest
thereon at the rate set forth in Section 3(c) hereof.
(h) Debtor
will have and maintain insurance at all times with respect to all Collateral against risks of fire, theft and such other risks as
the Secured Parties may reasonably require (but in no event shall Debtor be obligated to insure such collateral in an amount greater
than the replacement value thereof), including extended coverage, and in the case of motor vehicles, including collision coverage.
Within ten (10) days after the date hereof, Debtor shall amend such insurance policies to contain a standard mortgagee’s endorsement
providing for payment of any loss to the Secured Parties and to provide for ten (10) days’ written minimum cancellation notice to
the Secured Parties. Within a reasonable time after execution of this Security Agreement, Debtor shall furnish to the Secured
Parties evidence of compliance with the foregoing insurance provisions. After the occurrence and during the continuance of an Event
of Default, the Secured Parties may (i) act as attorney for Debtor in obtaining, adjusting, settling and canceling such insurance
and endorsing any drafts drawn by insurers of the Collateral, and (ii) apply any proceeds of such insurance which may be received by
it in payment on account of the obligations secured hereby.
(i)
Debtor shall, at its own expense, do, make, procure, execute and deliver all agreements and assurances as the Secured Parties, may
at any time reasonably request to protect, assure or enforce the Secured Parties’ interests, rights and remedies created by,
provided in or emanating from this Security Agreement, including with respect to filings with the Patent and Trademark Office.
Debtor will execute financing statements and take whatever other actions are reasonably requested by the Secured Parties to perfect
and continue the Secured Parties’ security interests in the Collateral. After the occurrence and during the continuance of an Event
of Default, upon the request of the Secured Parties, the Debtor will deliver to the Secured Parties, any and all of the documents
evidencing or constituting the Collateral (if applicable), and the Debtor will note the Secured Parties’ interests upon any and all
of such documents if not delivered to the Secured Parties for possession by it. Debtor hereby agrees that a carbon, photographic,
photostatic or other reproduction of this Security Agreement or of a financing statement is sufficient as a financing statement
where permitted by law.
(j) Except in the
ordinary course of business, Debtor shall not sell, lend, license, rent, lease or otherwise dispose of the Collateral or any interest
therein except as authorized in this Security Agreement or in writing by the Secured Parties, which consent shall not be unreasonably
delayed, conditioned or withheld, and Debtor shall keep the Collateral, including the proceeds thereof, free from unpaid charges, including
taxes, and from Liens other than the Permitted Liens.
(k) Debtor
shall keep accurate and complete records of the Collateral and its proceeds.
(1) Debtor is the owner of
the Collateral free of all Liens, except for the Permitted Liens.
(m) As to that
portion of the Collateral which is accounts, Debtor represents, warrants and agrees with respect to each such account that:
(i) The account
arose from the performance of services by Debtor which have been performed or from the lease or the absolute sale of goods by Debtor in
which Debtor had the sole and complete ownership, and the goods have been shipped or delivered to the account debtor.
(ii) The account is not subject to any prior or subsequent assignment or Lien other than the Permitted Liens.
(iii)
The account is not subject to set-off, counterclaim, defense, allowance or adjustment other than discounts for prompt payment shown
on the invoice, or to dispute, objection or complaint by the account debtor concerning its liability on the account, and the goods,
the sale or lease of which gave rise to the account, have not been returned, rejected, lost or damaged.
(iv) The account
arose in the ordinary course of Debtor’s business. Debtor shall promptly give the Secured Parties written notice upon Debtor receiving
actual notice of any bankruptcy or insolvency of any material account debtor.
(n) All books or records relating to the
Collateral are located at the Company’s chief executive office.
(o) All of the Collateral is located in Minnesota.
(p)
No person or entity other than the Debtor, such as lessees, consignees, or warehousemen, has possession or is intended to have
possession of any of the Collateral.
5. Events of Default.
Debtor shall be in default under this Security Agreement upon the happening of any condition or event set forth below (each, an “Event
of Default”):
(a) An Event of Default
(as defined in the Secured Notes or the Note Purchase Agreement and subject to Secured Party’s right to increase the interest rate in
lieu of repayment) or a material default under the Secured Notes or the Note Purchase Agreement, if such default shall continue unremedied
for a period of ten (10) days following written notice of default by the Secured Parties to Debtor.
(b) Default
by Debtor in the punctual performance of any of the material obligations, covenants, terms or provisions contained or referred to in
this Security Agreement, as amended, replaced or modified if such default shall continue unremedied for a period of ten (10) days
following written notice of default by the Secured Parties to Debtor.
(c) Any statement
of the financial condition of Debtor or of any guarantor, surety or endorser of any liability of Debtor to a Secured Party submitted to
a Secured Party by Debtor or any such guarantor, surety or endorser proves to be false in any material respect when made.
Debtor shall provide the Secured
Parties with prompt written notice of any Event of Default, except for Events of Default arising out of Debtor’s failure to make any payments
under the Secured Notes when due.
6. Secured
Parties’ Rights and Remedies.
(a) Rights in Event of Default.
In addition to any other rights which the Secured Parties may have at law or hereunder, upon the occurrence of an Event of Default, and
at any time thereafter during the continuance thereof, the Secured Parties may:
(i)
Declare all obligations secured hereby immediately due and payable and the Secured Parties shall have the rights and remedies of a
“secured party” under the applicable UCC, including, without limitation, the right to sell, lease or otherwise dispose of
any or all of the Collateral and the right to take possession of the Collateral, and for that purpose the Secured Parties may enter
any premises on which the Collateral or any part thereof may be situated and remove the same therefrom, so long as the same may be
accomplished without a breach of the peace. The Secured Parties may require Debtor to assemble the Collateral and make it available
to the Secured Parties at a place to be designated by the Secured Parties which is reasonably convenient to the Secured Parties and
thereafter hold the Collateral absolutely free from any claim or right whatsoever, including any right or equity of redemption
(statutory or otherwise) of the Debtor, and such demand, notice and right or equity being hereby expressly waived and released.
Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized
market, the Secured Parties will send Debtor reasonable notice of the time and place of any public sale thereof or of the time after
which any private sale or other disposition thereof is to be made. The requirement of sending reasonable notice shall be met if such
notice is sent to Debtor at least ten (10) days before the time of the sale or disposition. Expenses of retaking, holding, preparing
for sale, selling or the like shall include the Secured Parties’ reasonable fees and expenses (including, but not limited to,
reasonable fees and expenses of legal counsel), and Debtor agrees to pay such reasonable fees and expenses, plus interest thereon at
the rate set forth in Section 3(c) hereof. Debtor shall remain liable for any deficiency hereunder or under the Secured Notes;
(ii) Notify the accounts of Debtor or obligors of any accounts, chattel paper, negotiable instruments
or other evidences of indebtedness remitted by Debtor to the Secured Parties as proceeds to pay the Secured Parties directly;
(iii)
Execute, sign, endorse, transfer or deliver in the name of Debtor, notes, checks, drafts or other instruments for the payment
of money and receipts, certificates of origin, applications for certificates of title or any other documents, necessary to evidence,
perfect or realize upon the security interest and obligations created by this Security Agreement;
(iv) Agree
to discharge taxes and Liens at any time levied or placed on the Collateral, may pay for the insurance on the Collateral and may pay
for the maintenance and preservation of the Collateral. Debtor agrees to reimburse the Secured Parties on demand for any payment
made, or expense incurred by it pursuant to the foregoing authorization, plus interest thereon at the rate set forth in Section 3(c)
hereof, and will indemnify and hold the Secured Parties harmless from and against liability in connection therewith; and
(v) Remedy any
default and may waive any default without waiving or being deemed to have waived any other prior or subsequent default.
(b) Private
Sale. The Secured Parties shall not incur any liability as a result of a private sale of the Collateral, or any part thereof, at
any sale pursuant to this Section 6 conducted in good faith. Debtor hereby waives any claims against the Secured Parties arising by
the reason of the fact that the price at which the Collateral may have been sold at such private sale was less than the price that
might have been obtained at a public sale or was less than the aggregate amount of the Indebtedness, even if the Secured Parties
accepts the first offer received and does not offer the Collateral to more than one offeree.
(c) Deficiency.
If the proceeds of sale, collection or other realization of or upon the Collateral pursuant to this Section 6 are insufficient to cover
the costs and expenses of such realization and the payment in full of the Indebtedness, Debtor shall remain liable for any deficiency.
(d) Ratable
Treatment of Secured Notes. Debtor hereby acknowledges and agrees that in terms of payments in respect of the Secured Notes and
from the proceeds of any Collateral, each Secured Party shall be treated ratably in accordance with its share (the “Pro Rata
Share”) of the aggregate dollar amount outstanding under the Secured Notes at any given time based upon a fraction, (i) the
numerator of which shall be equal to the outstanding dollar amount of the Secured Notes held by such Secured Party at such time and
(ii) the denominator of which shall be equal to the aggregate dollar amount outstanding under all of the Secured Notes at such time.
Debtor shall execute and deliver such additional documents and take such additional action as may be necessary or desirable in the
reasonable opinion of the Secured Agent (as defined below), on behalf of the Secured Parties, to effectuate the provisions and
purposes of the provisions of Section 7 hereof.
7.
Intercreditor Arrangement.
(a) The
Secured Parties agree (i) as to the certain rights and priorities of each with respect to the Secured Obligations and with respect
to their respective liens upon and security interest in the Collateral and (ii) as to provide for the orderly sharing between the
Secured Parties of the proceeds of such Collateral upon any foreclosure thereon or other disposition thereof, to the intercreditor
arrangement set forth in this Section 7.
(b) Payments
Held in Trust/Turnover, Application of Payments.
(i) In the event that any payment or distribution of assets of
Debtor, whether in cash, property or securities, which is prohibited by any of the Loan Documents, shall be received by a Secured
Party in contravention of such Loan Document, such payment or distribution shall be held in trust for the benefit of and shall be
paid over to or delivered to the other Secured Parties for application in accordance with the terms hereof.
(ii) All payments
of principal, interest, fees and expenses after the issuance of the Secured Notes, and proceeds of the Collateral shall be apportioned
ratably between the Secured Parties, in accordance with each Secured Party’s Pro Rata Share.
(c) Permitted
Liens and Relative Priorities. As between the Secured Parties, and notwithstanding the terms (including the description of Collateral),
dating, execution, or delivery of any Loan Document; the time, order, method, or manner of granting, attachment or perfection of any
Lien; the time of filing or recording of any financing statements, assignments, deeds of trust, mortgages, or any other documents, instruments,
or agreements under the UCC or any other applicable law, and any provision of the UCC or any other applicable law to the contrary, the
Secured Parties agree that Swenson (the “Secured Agent”), not individually but on behalf of all of the Secured Parties,
shall have a Lien upon the Collateral.
For purposes of the
foregoing allocation of priorities, any claim of a right to a setoff shall be treated in all respects as a security interest and no claimed
right of setoff shall be asserted to defeat or diminish the rights or priorities provided for herein.
(d) No Alteration of Priority.
The Lien priorities provided in Section 7(c) hereof shall not be altered or otherwise affected by any amendment, modification, supplement,
extension, renewal, restatement or refinancing of any of the Secured Obligations nor by any action or inaction which any Secured Parties
may take or fail to take in respect of the Collateral. Each Secured Party consents to Debtor’s granting to each other Secured Party of
the Liens reflected in Section 7(c) hereof.
(e) Nonavoidability and
Perfection. The provisions of this Section 7 are intended solely to govern the respective priorities as between the Secured Parties.
Each Secured Party agrees that it will not directly or indirectly take any action to contest or challenge the validity, legality, perfection,
priority, availability, or enforceability of the liens of the other Secured Party upon the Collateral or seek to have the same avoided,
disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise. In the event that any Secured Party breaches
or causes to be breached the terms of the preceding sentence, resulting (directly or indirectly) in the avoidance or imperfection of
the Secured Agent’s Lien held on behalf of all of the Secured Parties in some or all of the Collateral, then the priority of the Lien
of the Secured Parties in any such affected Collateral shall continue to be governed by the terms of Section 7(c) hereof irrespective
of the avoidance or imperfection of the Secured Agent’s Lien held on behalf of all of the Secured Parties.
(f) Management of Collateral.
Notwithstanding anything to the contrary contained in any of the Secured Notes (with respect to provisions addressing management of Collateral
only):
(i)
Until the Secured Obligations have been paid in full and subject to the remaining provisions of this Section 7: (i) the Secured Agent,
on behalf of the Secured Parties, shall have the exclusive right to manage, perform, and enforce the terms of the Loan Documents with
respect to the Collateral and to exercise and enforce all privileges and rights thereunder in its reasonable discretion and its exercise
of its business judgment, including, without limitation, the exclusive right to enforce or settle insurance claims with respect to Collateral,
take or retake control or possession of Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate Collateral;
(ii) the other Secured Parties shall not exercise or take any action in furtherance of the sale, foreclosure, realization upon, or the
repossession or liquidation of any of the Collateral, including, without limitation: (A) the exercise of any remedies or rights of a
“Secured Creditor” under Article 9 of the UCC, such as, without limitation, the notification of account debtors; (B)
the exercise of any remedies or rights as a mortgagee or beneficiary (or by the trustee on behalf of the beneficiary), including, without
limitation, the appointment of a receiver, or the commencement of any foreclosure proceedings or the exercise of any power of sale, including,
without limitation, the placing of any advertisement for the sale of any Collateral; (C) the exercise of any remedies available to a
judgment creditor; or (D) any other remedy available in respect of the Collateral available to the other Secured Parties under any of
the Loan Documents (the “Secured Parties Remedies”) with respect to Collateral; and (iii) any and all proceeds of Collateral
which shall come into the possession, control, or custody of any Secured Party will be deemed to have been received for the account of
all of the Secured Parties, and, if not received by the Secured Agent, shall be immediately paid over to the Secured Agent for application
in accordance with the provisions hereof. The other Secured Parties waive any and all rights to affect the method or challenge the appropriateness
of any action by the Secured Agent with respect to the Collateral other than actions arising out of the willful misconduct of the Secured
Agent, and waive any claims or defenses it may have against the Secured Agent, including any such claims or defenses based on any actions
or omissions of any such person in connection with the perfection, maintenance, enforcement, foreclosure, sale, liquidation or release
of any Lien therein, or any modification or waiver of the Loan Documents specifically relating to the management of the Collateral other
than those arising out of the willful misconduct of the Secured Agent.
(ii) The
rights and priorities set forth in this Section 7 shall remain binding irrespective of the terms of any plan of reorganization in any
proceeding commenced by or against Debtor under any provision of the United States Bankruptcy Code (11 U.S.C. § 101, et seq.),
as amended, and any successor statute (the “Bankruptcy Code”) or under any other federal or state bankruptcy or insolvency
law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with its creditors,
or proceedings seeking reorganization, arrangement, or other similar relief, and all converted or succeeding cases in respect thereof
(the “Bankruptcy Case”) or other provisions of the Bankruptcy Code or any similar federal or state statute.
(g) Sale of
Collateral. Until the Secured Obligations have been paid in full: (a) only the Secured Agent on behalf of the Secured Parties shall
have the right to restrict or permit, or approve or disapprove, the sale, transfer or other disposition of the Collateral; and (b) each
other Secured Party will, immediately upon the request of the Secured Agent, release or otherwise terminate its Lien upon the Collateral,
to the extent such Collateral is sold or otherwise disposed of by Debtor with the consent of the Secured Agent, and the other Secured
Parties will immediately deliver such release documents as the Secured Agent may require in connection therewith, provided, that the
proceeds of any given sale shall be applied to the Secured Obligations of each Secured Party in accordance with its Pro Rata Share. Debtor
may rely on any consent granted by the Secured Agent as constituting the consent of all Secured Parties.
(h) Sections 9-611 and 9-620
Notice and Waiver of Marshalling. Each Secured Party hereby acknowledges that this Security Agreement shall constitute notice of
the other Secured Parties’ respective interests in the Collateral as provided by Sections 9-611 and 9-620 (provided that if the Secured
Agent seeks to exercise any rights under Section 9-620, it shall provide the other Secured Parties with the notices required thereunder)
of the UCC and each of the Secured Parties waives any right to compel the other Secured Parties to marshal any of the Collateral or to
seek payment from any particular assets of Debtor or from any third party.
(i) Bankruptcy
Issues.
(i) Except as provided in this
Section 7(i), this Section 7 shall continue in full force and effect after the commencement of a Bankruptcy Case and shall apply
with full force and effect with respect to all Collateral acquired by Debtor, and to each Secured Party’s Secured Obligations
incurred by Debtor, subsequent to such commencement.
(ii) If
Debtor shall become subject to a Bankruptcy Case, the Secured Agent may permit the use of cash collateral or to provide
post-petition financing to Debtor. No objection will be raised by the other Secured Parties to the Secured Agent’s motion for relief
from the automatic stay in any proceeding under the Bankruptcy Code to foreclose on and sell the Collateral.
(iii) In any Bankruptcy Case by or against Debtor:
| (A) | The Secured Agent may, and is hereby irrevocably authorized and empowered (in its own name or in the name
of the Secured Parties or otherwise), but shall have no obligation, to, (1) demand, sue for, collect and receive every payment or distribution
in respect of the Secured Obligations and give acquittance therefor and (2) file claims and proofs of claim in respect of all of the Secured
Obligations and take such other action (including, without limitation, voting all of the Secured Notes or enforcing any Lien securing
payment of all of the Secured Obligations) as the Secured Agent may reasonably deem necessary or advisable for the exercise or enforcement
of any of the rights or interests of the Secured Parties; and |
| (B) | The other Secured Parties will duly and promptly take such action as the Secured Agent may reasonably
request (1) to collect the Secured Obligations and to file appropriate claims or proofs of claim with respect thereto, (2) to execute
and deliver to the Secured Agent such powers of attorney, assignments or
other instruments as the Secured Agent may reasonably request in order to enable it to enforce any and all claims with respect to, and
any Liens securing payment of, the Secured Obligations, and (3) to collect and receive any and all payments or distributions which may
be payable or deliverable upon or with respect to the Secured Obligations for application to the Secured Parties in accordance with this
Security Agreement. |
(j) Notice of
Default and Certain Events. Debtor and each Secured Party shall send written notice to the other Secured Parties upon the occurrence
of any default or event of default under a Loan Document.
(k) Bailment.
With respect to any Collateral in which a security interest may be perfected under the UCC or other relevant law only by possession
(“Possessory Collateral”), the Secured Agent will act as pledgeholder for the Secured Parties until the payment in
full in cash of the Secured Obligations. The other Secured Parties acknowledge and agree that: (i) the Secured Agent makes no
representation or warranty whatsoever as to the nature, extent, description, validity or priority of any Possessory Collateral or
the Liens upon any Possessory Collateral; (ii) while any Possessory Collateral is held by the Secured Agent, the Secured Agent shall
not have any liability to, and shall be held harmless by, the parties, for any losses, damages, claim, or liability of any kind to
the extent arising out of the holding of such Possessory Collateral, other than losses, damages, claims, or liabilities arising out
of the Secured Agent’s gross negligence, recklessness, or willful misconduct; (iii) the Secured Agent need not act as a pledgeholder
for the other Secured Parties with respect to any Collateral in which a security interest may be perfected by means other than
possession; (iv) the other Secured Parties shall immediately deliver to the Secured Agent any Possessory Collateral that is now or
in the future comes into their possession to be held by the Secured Agent pursuant to the terms hereof; and (v) the priority of the
Secured Parties’ Liens upon the Possessory Collateral shall be governed by the terms of this Security Agreement.
(1) Authority of Agents/Trustees.
Each of the Secured Parties agrees that any assignment or transfer of an interest in any of the Secured Obligations held by it shall
be made expressly subject to the terms and conditions of this Security Agreement.
(m) Successor
Secured Agent. In the event the original Secured Agent hereunder is no longer able or qualified to serve as the Secured Agent hereunder,
the Secured Parties may, by vote of a majority of their respective Pro Rata Shares, designate a successor who shall serve as the Secured
Agent hereunder, with all rights, duties, indemnities and obligations of the original or any previous successor Secured Agent hereunder.
Swenson as Secured Agent hereunder shall cease to be the Secured Agent hereunder if at any time Swenson’s Pro Rata Share (including the
Pro Rata Share of any entities directly or indirectly controlled by Swenson) is less than twenty-five percent (25%), unless Swenson is
thereafter confirmed or elected as Secured Agent by the Secured Parties, by vote of a majority of their respective Pro Rata Shares.
(n) Subordination. Each Secured Party shall subordinate its
rights under this Agreement to any lender issuing any “Superior Debt” as required by Section 5.1 of the Note Purchase Agreement
8. Miscellaneous.
(a) Notices.
Any notice required or permitted by this Security Agreement shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified; (ii) when delivered by confirmed facsimile transmission if received during normal business hours
of the recipient on a business day, or if not, then on the next business day; or (iii) one (1) business day after deposit with a nationally
recognized overnight courier, specifying next business day delivery, with written verification of receipt. All communications shall be
sent to the Debtor and the Secured Parties at the addresses set forth on Schedule 1 attached hereto or at such other address as the Debtor
or such Secured Parties may designate by ten (10) days’ advance written notice to the other parties hereto.
(b) Construction.
“Secured Parties” and “Debtor,” as used in this instrument, include the administrators, successors,
representatives, receivers, trustees and assigns of such party.
(c) Headings.
The headings appearing in this instrument have been inserted for convenience of reference only and shall be given no substantive meaning
or significance whatever in construing the terms and provisions of this instrument.
(d) Governing
Law. The law governing this secured transaction shall be that of the State of Minnesota in force at the date of this instrument.
(e) Further Assurances.
All property acquired by Debtor after the date hereof shall, immediately upon the acquisition thereof and without further mortgage, conveyance
or assignment, become subject to the lien of this Security Agreement as fully as though now owned by Debtor and specifically described
herein. Nevertheless, Debtor will do all such further acts and execute, acknowledge and deliver all such further conveyances, mortgages,
financing statements and assurances as the Secured Parties shall reasonably require for accomplishing the purposes of this Security Agreement.
(f) Rights Cumulative;
No Waiver. The rights and remedies of the Secured Parties hereunder are cumulative, and the exercise (or waiver) of any one or more
of the remedies provided for herein shall not be construed as a waiver of any of the other rights and remedies of the Secured Parties.
No delay on the part of the Secured Parties in the exercise of any power or right under this Security Agreement or under any other instrument
executed pursuant hereto shall operate as a waiver thereof, nor shall a single or partial exercise of any power or right preclude other
or further exercise thereof or the exercise of any other power or right.
(g) Successors
and Assigns. The rights and obligations of the Secured Parties and the Debtor hereunder may not be transferred or assigned by
any party without the prior written consent of the Secured Parties and Debtor, except the Secured Parties may transfer or assign
their rights and obligations under this Security Agreement to any assignee without such consent, and in such case the assignee shall
be entitled to all of the rights, privileges and remedies granted in this Security Agreement to such Secured Parties, provided that
the transfer is in connection with a concurrent assignment or transfer of the applicable Secured Note to such assignee and is
permitted under or made in accordance with Section 8.4 of the Note Purchase Agreement; and in such event the Debtor will not assert
any claims or defenses, other than a defense that it has performed its obligations under the Loan Documents, it may have against the
Secured Parties against the assignee, except those granted in this Security Agreement. Any assignee of Debtor or a Secured Party
shall agree in writing prior to the effectiveness of such assignment to be bound by the provisions hereof. All of the stipulations,
promises and agreements in this Security Agreement made by Debtor shall bind the successors and assigns of Debtor, whether so
expressed or not, and inure to the benefit of the successors and permitted assigns of Debtor and the Secured Parties.
(h) Severability.
If one or more provisions of this Security Agreement are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision(s) in good faith, in order to maintain or achieve the economic position enjoyed by each party as close as
possible to that under the provision(s) rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision(s), then (i) such provision(s) shall be excluded from this Security Agreement, (ii) the
balance of this Security Agreement shall be interpreted as if such provision(s) were so excluded and (iii) the balance of this
Security Agreement shall be enforceable in accordance with its terms.
(i) Amendment and
Waiver. Any term of this Security Agreement may be amended or waived only with the written consent of the Debtor and the Secured
Parties; any waiver by the Secured Agent shall be deemed a waiver by all Secured Parties. Any amendment or waiver effected in
accordance with this Section 8(i) shall be binding upon the Debtor, the Secured Parties, and each transferee of the Secured Notes.
Any waiver by the Debtor or the Secured Parties of a breach of any provision of this Security Agreement shall not operate as or be
construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Security Agreement.
The failure of the Debtor or the Secured Parties, to insist upon strict adherence to any term of this Security Agreement on one or
more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Security Agreement.
(j) Entire Agreement.
The Loan Documents constitute the full understanding between the parties hereto with respect to the subject matter hereof, and no statements,
written or oral, made prior to or at the signing hereof shall vary or modify the terms hereof.
[Signature pages to follow]
IN WITNESS WHEREOF, the undersigned parties have executed this Security
Agreement on and as of the Effective Date.
|
DEBTOR: |
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|
| |
PDG,
P.A, |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
| |
SECURED
PARTIES: |
| |
|
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NICK
SWENSON, AS AGENT FOR ALL INVESTORS |
| |
|
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|
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Nick
Swenson, agent |
SCHEDULE 1
ADDRESSES FOR PARTIES
PDG, P.A.
________________
Minneapolis, MN ________
Facsimile:________________
Attention: CEO
with a copy to:
Todd I. Freeman, Esq.
Larkin Hoffman Daly & Lindgren Ltd.
Mailing Address:
7900 Xerxes Avenue South
Suite 1500
Minneapolis, MN 55431
Facsimile: (952) 896-3333
Nick Swenson
Facsimile:_______________
with a copy to:
Frank Vargas, Esq.
Renaissance Law Group, P.A.
Mailing Address:
3500 Vicksburg Lane N
#235
Plymouth, MN 55447
Facsimile:
Exhibit 10.7
FIRST AMENDMENT
TO
SENIOR SECURED NOTE PURCHASE
AGREEMENT
This
First Amendment to Senior Secured Note Purchase Agreement (this “Amendment”) is made and entered into effective as of
the 20 day of February, 2009 (the “Effective Date”), by and between PDG, P.A., a Minnesota professional corporation
(the “Company”) and Nick Swenson, an individual residing in Minnesota, in his individual capacity , as “Majority
in Interest of the Investors,” and as “Secured
Agent” on behalf of all “Secured Parties,” as such terms are defined in the Purchase Agreement or Security
Agreement defined below (“Swenson’’).
PREMISES
The Company, Swenson,
and other individuals are parties to that certain Senior Secured Note Purchase Agreement dated September 26, 2007 (the “Purchase
Agreement”), under which Swenson and other individuals, all as “Investors” thereunder, purchased certain promissory
notes (“Notes”) from the Company. Each Investor has advanced certain amounts to the Company under their respective Notes.
The Company’s obligations under the Notes are secured by a security interest granted by the Company under that certain Security Agreement
dated October 12, 2007, between the Company and Swenson for himself and as agent for all Investors (the “Security Agreement”).
The Company desires to enter
into or has completed: a capital restructuring, that will involve the redemption of some of the stock of the Company; and the creation
of certain deferred compensation arrangements with the shareholders of the Company; which transactions are further described below (collectively,
the “Transactions”).
The Company desires
to obtain Swenson’s consent to the Transactions, and Swenson is willing to grant such consent, under the terms and conditions set forth
in this Amendment.
AGREEMENT
NOW THEREFORE, in consideration
of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1.)
Defined Terms. All capitalized terms used in this Amendment and not otherwise defined herein shall have the respective meanings
ascribed to them in the Purchase Agreement and the Security Agreement.
2.) Transactions.
Waiver and Consent.
(a) Description
of the Transactions. The Transactions are summarized as follows:
(1)
all of the Company’s shareholders holding more than 1,000 shares of the Company’s Class A non-voting common stock (“Shares”)
will have or were given the opportunity to have their excess Shares redeemed by the Company at a price of $1.61 per Share, with such
redemptions being evidenced by certain promissory notes of the Company bearing interest
at the rate of one percent under the prime rate, adjusted annually, and being payable only from the Company’s excess cash available after
paying all of the Company’s expenses, but in any event not later than three years after the redemption date (collectively, the
“Redemption Notes”);
(2)
the Company has committed to enter into a deferred compensation arrangement for the benefit of the employees who also hold a Redemption
Note, which arrangement will provide for deferred compensation to be paid to each such employee in accordance with the terms of the deferred
compensation arrangement, with interest thereon at the rate of one percent below the prime rate, adjusted annually, and with such deferred
compensation to be paid only after the final maturity of the Redemption Notes and only from the Company’s excess cash available
after paying all of the Company’s expenses. Any payments of such deferred compensation to Employed Dentists will be included in Average
Dentist Compensation in the year such payment is actually made; and
(3)
most or all of the shareholder-employees of the Company will enter into a new employment agreement, which will provide for a deferred
compensation benefit for each shareholder-employee based on the value of the Company’s accounts receivable at the time the shareholder-employee
terminates employment with the Company. The Company will pay such deferred compensation over a period of five years from the date the
shareholder-employee’s employment is terminated. The maximum amount that the Company will be required to pay under such deferred compensation
benefit to all former shareholder-employees in each month will be capped at two percent of the Company’s adjusted gross revenue
for the previous month.
(b)
Waiver and Consent Regarding Transactions. To the extent that entering into and/or the consummation of any of the Transactions,
whether prior to or after the Effective Date, constitutes a breach, default, or Event of Default under the Purchase Agreement, the Security
Agreement, or any of the Notes, insofar as the Transactions may have required the amendment or waiver of certain provisions thereunder,
or relating to or regarding the disposition of Collateral or the proceeds thereof, Swenson hereby waives each such breach, default and
Event of Default and consents to the entry into or consummation of the Transactions, to the extent a waiver or consent is required under
the Purchase Agreement, the Security Agreement, and/or any of the Notes.
3.) EBITDA
Calculations.
(a) Amendment to Purchase
Agreement. The Company and Swenson hereby consent and agree that Section 5.1(a) of the Purchase Agreement is hereby deleted in its
entirety and replaced with the following:
(a) Except as set forth in the following sentence, after the Closing the Company shall not issue additional debt superior to the Notes. Notwithstanding
the foregoing, the Company may issue an amount of debt superior to the Notes (“Superior Debt”) up to an amount equal
to 3.5 times the Company’s EBITDA (earnings before interest, taxes, depreciation and amortization, calculated in accordance with generally
accepted accounting principles (“GAAP”)) for the most recent twelve month period, determined monthly on a rolling basis.
This figure will be calculated each month.
(b) Representations.
Waivers and Agreements Regarding EBITDA Calculations.
(1)
Company’s Representation Regarding EBITDA Calculations. The Company hereby represents that except for adding non-recurring transaction
costs and any portion of the $19,000,000 service fee incurred by the Company pursuant to that certain Settlement Agreement dated December
26, 2007, and the related definitive documents dated February 29, 2008, and expensed by the Company during the period in question (i.e.,
approximately $8,100,000 in 2008), Plus any deferred compensation accrued and expensed by the Company pursuant to the Transactions
(i.e., approximately $4,170,000 in 2008) the Company would have met the EBITDA limitation set forth in Section 3(a), above.
(2)
Waivers. In reliance upon the Company’s representation set forth above, Swenson hereby (i) waives each breach, default or Event
of Default under the Notes, Purchase Agreement and Security Agreement, which may have resulted from the Company’s failure to comply with
Section 7(g) of the Notes and solely as an affect of adding non recurring transaction costs and any portion of the $19,000,000 service
fee incurred by the Company pursuant to that certain Settlement Agreement dated December 26, 2007, and the related definitive
documents dated February 29, 2008, and expensed by the Company during the period in question (i.e., approximately $8,100,000 in 2008),
plus any deferred compensation accrued and expensed by the Company pursuant to
the Transactions (i.e., approximately $4,170,000 in 2008), for the period from the issuance of the Notes through the Effective Date;
and (ii) does hereby waive compliance by the Company with Section 7(g) of the Notes, which non-compliances arises solely as an affect
of adding non recurring transaction costs and any portion of the $19,000,000 service fee incurred by the Company pursuant to
that certain Settlement Agreement dated December 26, 2007, and the related definitive documents dated February 29, 2008, and expensed
by the Company during the period in question (i.e., approximately $8,100,000 in 2008), plus any deferred compensation accrued and expensed
by the Company pursuant to the Transactions (i.e.,
approximately $4,170,000 in 2008), for the period from the Effective Date through February 28, 2009.
(3) Agreements
Regarding EBITDA Calculations. For purposes of determining compliance with the provisions of Section 7(g) of the Notes for each
period from March 1, 2009 to December 31, 2009, inclusive, the term “EBITDA” shall mean the
Company’s earnings before interest, taxes, depreciation and amortization, calculated in accordance with generally accepted
accounting principles for the most recent twelve (12) month period, determined monthly on a rolling basis, plus any non-recurring
transaction costs and any portion of the $19,000,000 service fee incurred by the Company pursuant to that certain Settlement
Agreement dated December 26, 2007, and the related definitive documents dated February 29, 2008, and expensed by
the Company during the period in question (i.e., approximately $8,100,000 in 2008), plus any deferred compensation accrued and
expensed by the Company pursuant to the
Transactions (i.e., approximately $4,170,000 in 2008); commencing on January 1, 2010, and thereafter, unless further agreed to
by a Majority in Interest of the Investors, EBITDA shall be calculated as provided in Section 5.l(a) of the Purchase Agreement, as
amended hereby.
4.)
Confirmation Regarding Deferred Compensation Paid to Employed Dentists. The Company hereby confirms that any deferred compensation
paid by the Company to any “Employed Dentist” (as such term is defined in the Notes), including, but not limited to,
any such deferred compensation paid to an Employed Dentist as described in Section 2(a)(2) above, shall be included in the calculation
of “Average Dentist Compensation” as such term is defmed in the Notes for purposes for calculating interest
under the Notes. However, in no event shall Average Dentist Compensation include any payments made by the Company in redemption of some
or all of the Company’s capital stock held by an Employed Dentist. For sake of clarification and as an example, Exhibit A attached hereto
shows how the deferred compensation described above will be calculated and how it will be included in the derivation of interest expense
under the Notes.
5.)
Notices. The Company’s address for purposes of all notices, requests, demands, consents, instructions and other communications
required or permitted under the Purchase Agreement or the Security Agreement was previously changed and is hereby acknowledged to
be as follows unless and until otherwise changed as provided in the Purchase Agreement and the Security Agreement:
Personal and Confidential
Park Dental
Attention: Chief Administrator
2200 County Road C-West, Suite 2210
Minneapolis, Minnesota 55113-2504
With a copy to:
Larkin Hoffinan Daly &
Lindgren Ltd.
Attention: Todd Freeman, Esq.
7900 Xerxes Avenue, Suite 1500
Minneapolis, Minnesota 55431
Fax No. 952 896-3333
6.)
Effect of Amendment. The Purchase Agreement, Notes and Security Agreement shall continue to be in full force and effect
in accordance with their respective terms, as hereby amended.
7.)
Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement. Facsimile copies of signed signature pages will be deemed binding originals.
Regardless of the date that this Amendment or any counterpart
is executed, this Amendment shall be effective as of the Effective Date set forth above.
[signature
page follows]
IN WITNESS WHEREOF, the
parties hereto have executed this Amendment effective as of the Effective Date first written above.
| COMPANY: | | SWENSON: |
| PDG, P.A. | | |
| | | |
| By: |
/s/ [Illegible] | | /s/ Nick Swenson |
| Name: |
[Illegible] | | Nick Swenson, individually, as Majority in Interest
of the Investors under |
| |
| | the Purchase Agreement and Notes, and as Secured Agent under the |
| |
| | Security Agreement |
| Title: |
President, PDG, P.A. | | |
EXHIBIT A
Example of Calculation
of Deferred Compensation and Interest Under Notes
There
are two situations described in the Amendment which involve payment of deferred compensation. The first is deferred compensation
payable to Company employees/shareholders who agreed to have a portion of their shares of Company stock redeemed in 2008 (Category I).1
The second is deferred compensation payable to Employed Dentists after they cease to be employed with the Company. By definition, deferred
compensation payable to individuals after they cease employment with the Company is not compensation payable to “Employed Dentists”
and thus is not to be included in the calculation of “Average Dentist Compensation” under the Notes. The Category I deferred
compensation payments are calculated and included in Average Dentist compensation as follows:
Each dentist who agrees
to have some of their shares of Company stock redeemed in 2008 shall receive an amount of deferred compensation in proportion to the Class
A nonvoting stock redeemed. These shareholders all have between 1,000 and 6,000 shares being redeemed, resulting in deferred compensation
payable to these shareholders as follows:
| Total
Deferred Compensation |
|
|
4,064,760 |
| | |
No. Shares | | |
| | |
Deferred Comp | |
| Dentist | |
Redeemed | | |
Percent | | |
Payment | |
| Bahnemann, Carol A | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Benson, James A | |
| 3,000 | | |
| 4.76 | % | |
| 193,560 | |
| Eakins, Megan M | |
| 3,000 | | |
| 4.76 | % | |
| 193,560 | |
| Gulon, John E | |
| 6,000 | | |
| 9.52 | % | |
| 387,120 | |
| Hermunslie, Clarice I. | |
| 6,000 | | |
| 9.52 | % | |
| 387,120 | |
| Holm, Pamela J (TerEick) | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Kohler, Karen A | |
| 3,000 | | |
| 4.76 | % | |
| 193,560 | |
| Lahr, Kevin P | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Logan, Kathleen | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Lozne, Elena | |
| 3,000 | | |
| 4.76 | % | |
| 193,560 | |
| Lutterman, Lee R | |
| 3,000 | | |
| 4.76 | % | |
| 193,560 | |
| Marshall, Todd W | |
| 6,000 | | |
| 9.52 | % | |
| 387,120 | |
| Marvin, Daniel T | |
| 6,000 | | |
| 9.52 | % | |
| 387,120 | |
| Masciopinto, Jodell F | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Merritt, Amy L | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Naegeli, David T | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Peet, Eugene A | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Rabinowitz, Ira A | |
| 3,000 | | |
| 4.76 | % | |
| 193,560 | |
| Reither, Lowell W | |
| 1,000 | | |
| 1.59 | % | |
| 64,520 | |
| Slepicka, Larry J | |
| 3,000 | | |
| 4.76 | % | |
| 193,560 | |
| Steele, Christopher E. | |
| 6,000 | | |
| 9.52 | % | |
| 387,120 | |
| Thompson, Peter J | |
| 3,000 | | |
| 4.76 | % | |
| 193,560 | |
| Totals | |
| 63,000 | | |
| 100.00 | % | |
| 4,064,760 | |
1 These same employee/shareholders will also
receive stock redemption payments, which are not compensation and are not included in either the Category I payments or the calculation
of Average Dentist Compensation.
It
is anticipated that each fiscal year the Company’s Board of Directors will establish a “cash bonus pool” of excess cash available
to pay the Company’s employee/shareholders. Twenty percent of this pool will be dedicated to paying off the redemption payments first
(estimated at approximately $101,500), and then to payment of the deferred compensation set forth above. Any payments of such deferred
compensation to Employed Dentists will be included in Average Dentist Compensation in the year such payment is made. If a dentist dies
or otherwise ceases to remain employed by the Company prior to receipt of all deferred compensation
owed to him or her, the remaining deferred compensation owed to that dentist shall be paid to his
or her lawful successors or assigns, but by definition will not be included in Average Dentist Compensation. By way of example, of after
the Company has fully paid the stock redemption price to the foregoing individuals the Company’s Board of Directors establishes a cash
bonus pool of $2,000,000, then $400,000 will be paid to the foregoing individuals as follows:
| | |
No. Shares | | |
Deferred Comp | |
| Dentist | |
Redeemed | | |
Payment | |
| Bahnemann, Carol A | |
| 1,000 | | |
| 6,349 | |
| Benson, James A | |
| 3,000 | | |
| 19,048 | |
| Eakins, Megan M | |
| 3,000 | | |
| 19,048 | |
| Gulon, John E | |
| 6,000 | | |
| 38,095 | |
| Hermunslie, Clarice I. | |
| 6,000 | | |
| 38,095 | |
| Holm, Pamela J (TerEick) | |
| 1,000 | | |
| 6,349 | |
| Kohler, Karen A | |
| 3,000 | | |
| 19,048 | |
| Lahr, Kevin P | |
| 1,000 | | |
| 6,349 | |
| Logan, Kathleen | |
| 1,000 | | |
| 6,349 | |
| Lozne, Elena | |
| 3,000 | | |
| 19,048 | |
| Lutterman, Lee R | |
| 3,000 | | |
| 19,048 | |
| Marshall, Todd W | |
| 6,000 | | |
| 38,095 | |
| Marvin, Daniel T | |
| 6,000 | | |
| 38,095 | |
| Masciopinto, Jodell F | |
| 1,000 | | |
| 6,349 | |
| Merritt, Amy L | |
| 1,000 | | |
| 6,349 | |
| Naegeli, David T | |
| 1,000 | | |
| 6,349 | |
| Peet, Eugene A | |
| 1,000 | | |
| 6,349 | |
| Rabinowitz, Ira A | |
| 3,000 | | |
| 19,048 | |
| Reither, Lowell W | |
| 1,000 | | |
| 6,349 | |
| Slepicka, Larry J | |
| 3,000 | | |
| 19,048 | |
| Steele, Christopher E. | |
| 6,000 | | |
| 38,095 | |
| Thompson, Peter J | |
| 3,000 | | |
| 19,048 | |
| Totals | |
| 63,000 | | |
| 400,000 | |
Assuming that each of the
foregoing individuals is employed by the Company at the time he or she receives the deferred compensation payment described above, then
those payments will be included in Average Dentist Compensation under the Notes.
Exhibit 10.8
SUBORDINATION AGREEMENT
This Agreement
dated as of March 16, 2015, is among the creditor identified on the signature page below (the “Creditor”), PDG, P.A. (the
“Debtor”), and U.S. Bank National Association (the “Bank”).
The parties agree as follows:
1. Definitions. “Creditor’s
Claim” means all of Debtor’s obligations to Creditor for borrowed money, now existing or hereafter arising, direct or indirect,
absolute or contingent, joint or several, whether as maker, endorser, surety, guarantor or otherwise. “Bank’s Claim” means
all of Debtor’s obligations to Bank, now existing or hereafter arising, direct or indirect, absolute or contingent, joint or several,
whether as maker, endorser, surety, guarantor or otherwise.
2. Consent. Creditor agrees
that Debtor may incur the obligations evidenced by the Bank’s Claim and acknowledges that the Bank’s Claim does not violate any restriction
on Debtor’s debt contained in any document evidencing Creditor’s Claim.
3. Subordination. Creditor
shall not receive, or take any action to collect or enforce, payment from Debtor, and Debtor shall not make payment to Creditor, of Creditor’s
Claim or any part thereof; provided, however, as interest accrues on Creditor’s Claim, such interest may be paid by Debtor to Creditor
as long as no default then exists in Bank’s Claim or would result from such payment. Without the prior written consent of Bank, Creditor
shall not receive, or take any action to collect or enforce, payment of Creditor’s Claim from any person. If Creditor receives any payment
or property in violation of the terms of this Agreement, Creditor shall forthwith pay over or deliver the same to Bank to be applied
on Bank’s Claim whether or not then due. So long as any portion of the Bank’s Claim is outstanding, or the Bank has a commitment to lend
to Debtor, the Bank’s interest in any collateral now or hereafter owned by Debtor shall have priority over the security interest of Creditor
in that collateral, and Creditor’s interest in that collateral shall in all respects be subject and subordinate to the security interest
of the Bank.
4. Waivers. Creditor’s and Debtor’s
agreements and undertakings and Bank’s rights and remedies shall not be affected or impaired by (a) any neglect or omission on the part
of Bank to look to, preserve, protect, care for, insure, take possession of, collect, dispose of, or otherwise realize upon any security
for Bank’s Claim, or (b) any act by Bank in releasing, canceling or surrendering all or part of such security, or in extending the time
for payment with respect to all or any part of Bank’s Claim or such security, or in enforcing or realizing upon such security, or (c)
any other act or omission by Bank or any other person, or any other thing. No notice need be given to Creditor at any time of Bank’s
Claim or the amount thereof, whether now existing or later arising, or any increase or decrease therein, or any payment thereof, or with
respect to any security, or in any other respect.
5. Assignment. Creditor
may assign, negotiate, pledge or otherwise transfer Creditor’s Claim or any part thereof subject to the following conditions: (i)
Creditor shall provide Bank with prior, written notice of any such transfer, including in each notice the name and address of each
transferee, (ii) no more than four transferees may hold any part of Creditor’s Claim at any time and (iii) each transferee shall
acknowledge in writing that such transferee holds its interest in Creditor’s Claim subject to this Agreement.
6. Breach. In the event
of any breach of this Agreement by Debtor, Bank may declare Bank’s Claim immediately due and payable in full without any notice or demand,
all of which are hereby waived by Debtor and Creditor.
7. Miscellaneous.
This Agreement is a continuing, absolute and unconditional agreement of subordination without regard to the validity or enforceability
of any document evidencing the Bank’s Claim or of any agreement relating to any collateral for the Bank’s Claim and irrespective of the
time or order of attachment or perfection of any security interest in that collateral or the order of filing of financing statements
with respect to that collateral. This Agreement does not create, or imply the existence of, any commitment on the part of Bank to extend
credit to Debtor or any other person. This Agreement shall continue in effect, notwithstanding any payment in full of Bank’s Claim, until
this Agreement is terminated in writing executed by Bank. This Agreement binds Creditor and Debtor and their respective heirs, representatives,
successors and assigns. It is enforceable by Bank and its successors and any assignees of Bank’s Claim, but shall not benefit or be enforceable
by any other party or subordinate Creditor’s Claim to any claim other than Bank’s Claim. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Minnesota (excluding conflict of law rules).
| PDG, P.A. |
|
|
| |
|
|
| By: |
/s/
[Illegible] |
|
/s/
Nick Swenson |
| |
Its: President |
|
Nick Swenson |
| |
|
|
(Print
Creditor’s Name) |
| |
|
|
| U.S. Bank National
Association |
|
|
| |
|
|
| By: |
/s/
[Illegible] |
|
|
| |
Its: Vice President |
|
|
Exhibit 10.9
Execution Copy
AMENDMENT NO.
2 TO SENIOR SECURED NOTE PURCHASE AGREEMENT, AMENDMENT NO. 1
TO SECURITY
AGREEMENT, AMENDMENT NO. 1 TO SENIOR SECURED PROMISSORY NOTES,
CONSENT AND
JOINDER
This
Amendment No. 2 to Senior Secured Note Purchase Agreement, Amendment No. 1 to Security Agreement, Amendment No. 1 to Senior Secured Promissory
Notes, Consent and Joinder (this “Amendment”) is made and entered into effective as of the day of March 26, 2024 (the
“Effective Date”), by and between PDG, P.A., a Minnesota professional corporation (the “Company”),
PARK DENTAL PARTNERS, INC., a Minnesota corporation (the “Guarantor”; and together with the Company, individually
and collectively, the “Note Parties”, and each, a “Note Party”), and PDG 2007 LLC, a Minnesota
limited liability company, as “Majority in Interest of the Investors,” and as “Secured Agent” on
behalf of all “Secured Parties,”, as such terms are defined in the Purchase Agreement or Security Agreement defined
below (“PDG 2007”).
PREMISES
WHEREAS,
the Company, Nick Swenson, as an individual and as agent for all Investors (“Swenson”), and other individuals are
parties to that certain Senior Secured Note Purchase Agreement dated September 26, 2007, as further amended by that certain Amendment
No. 1 to Senior Secured Note Purchase Agreement dated February 2, 2009 (as amended, restated, supplemented or otherwise modified from
time to time, the “Purchase Agreement”), under which Swenson and other individuals, all as “Investors”
thereunder, purchased certain Senior Secured Promissory Notes (“Notes”) from the Company. Each Investor has advanced
certain amounts to the Company under their respective Notes. The Company’s obligations under the Notes are secured by a security
interest granted by the Company under that certain Security Agreement dated October 12, 2007, between the Company and Swenson for himself
and as agent for all Investors (the “Security Agreement”).
WHEREAS,
Swenson assigned and transferred to PDG 2007 all rights and interest in and to the Purchase Agreement, the Notes and the Security Agreement,
and the respective portion of the indebtedness represented or secured thereby, pursuant to that certain Assignment Agreement dated as
of May 30, 2022, by and between Swenson and PDG 2007 (the “Assignment”).
WHERAS,
as a result of the Assignment, PDG 2007 now acts as “Majority in Interest of the Investors,” and as “Secured Agent”
on behalf of all “Secured Parties” as successor to Swenson.
WHEREAS,
on or about October 1, 2023, Guarantor was created, capitalized, and acquired a majority of the membership interests of Company (the
“Reorganization”), which resulted in the Company contributing, assigning or otherwise transferring certain assets
to the Guarantor (the “Asset Transfer”, and collectively with the Reorganization, the “Transactions”).
Such Transactions resulted in a Change of Control under the Purchase Agreement.
WHEREAS,
the Company has requested the Investors (i) memorialize the written consent to the Transactions and waive any breach, default, or Event
of Default resulting from the Transactions, (ii) join the Guarantor to the Security Agreement, (iii) obtain a guaranty from the Guarantor
(the “Guaranty,” and together with this Amendment, the “Transaction Documents”), (iv) amend certain
provisions of the Notes and (v) in connection with an amendment and restatement of certain credit facilities (collectively, the “Senior
Creditor Credit Facility”) with U.S. Bank, National Association, a national banking association (the “Senior Creditor”),
consent to the Senior Creditor Credit Facility and reaffirm their respective obligations under those certain Subordination Agreements
each dated as of March 16, 2015 (collectively, the “Senior Creditor Subordination Agreements”), executed by each Investor
for the benefit of Senior Creditor; and
WHEREAS,
PDG 2007, as Majority in Interest of the Investors and as Secured Agent, is willing to agree to the foregoing in accordance with the
terms and subject to the conditions contained herein.
AGREEMENT
NOW
THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
| 1. | Defined
Terms. All capitalized terms used in this Amendment and not otherwise defined herein
shall have the respective meanings ascribed to them in the Purchase Agreement and the Security
Agreement. |
| 2. | Joinder
to Security Agreement. Subject to the terms and conditions contained herein: |
| (a) | From and
after the date hereof, without any further documentation or action on the part of the Secured
Parties or any Note Party, Guarantor hereby absolutely and unconditionally (i) joins and
becomes a party to the Security Agreement as a “Debtor” thereunder, (ii) covenants
and agrees to be jointly and severally bound by and adhere to all of the terms, covenants,
waivers, releases, agreements and conditions of or respecting a Debtor with respect to the
Security Agreement hereby ratifies, as of the date hereof, and agrees to be bound by, all
of the representations and warranties contained in the Security Agreement with respect to
Guarantor, and (iii) collaterally assigns and hypothecates to the Secured Parties and hereby
grants to Secured Agent a continuing first priority security interest in all of Guarantor’s
owned and existing and hereafter acquired and arising Collateral, as collateral security
for the prompt and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of all of the Secured Obligations. Guarantor hereby authorizes
Secured Agent, its counsel or its representative to file at any time UCC financing statements
in such jurisdictions and offices as necessary to perfect its security interest in all of
Guarantor’s now owned or hereafter arising or acquired Collateral. Guarantor acknowledges
and confirms that it has received a copy of the Purchase Agreement, the Security Agreement,
the Notes, and the schedules and exhibits thereto. |
| (b) | From and
after the date hereof, any reference to the terms “Debtor” in the Security Agreement,
shall include Guarantor. The Company confirms that all of its obligations under the Purchase
Agreement are, and upon Guarantor joining the Security Agreement, shall continue to be, in
full force and effect. |
| 3. | Transactions,
Waiver and Consent. |
| (a) | Guaranty.
As an inducement for the Investors to consent to the Transactions, Guarantor will deliver
the form of Guaranty attached hereto as Exhibit A in favor of PDG 2007 as “Majority
in Interest of the Investors,” and as “Secured Agent”. |
| (b) | Waiver
and Consent Regarding Transactions. To the extent that entering into and/or the consummation
of any of the Transactions, whether prior to or after the Effective Date, constitutes a breach,
default, or Event of Default under the Purchase Agreement, the Security Agreement, or any
of the Notes, insofar as the Transactions may have required the amendment or waiver of certain
provisions thereunder, or relating to or regarding the disposition of Collateral or the proceeds
thereof, PDG 2007 hereby waives each such breach, default and Event of Default and consents
to the entry into or consummation of the Transactions, to the extent a waiver or consent
is required under the Purchase Agreement, the Security Agreement, and/or any of the Notes.
PDG 2007’s consent and waiver in connection with the Transactions does not grant or
waive any other breaches, defaults, or Event of Defaults under the Purchase Agreement, the
Security Agreement, or any of the Notes, by the Company or the Guarantor now or hereinafter
existing. |
| (c) | Priority.
Company and Guarantor acknowledge and agree that upon the satisfaction or release of the
Senior Creditor Credit Facility, PDG 2007 shall become the first lien holder of the Collateral
until the Notes have been paid in full and all obligations under the Purchase Agreement and
Security Agreement have been satisfied or released, unless PDG 2007 agrees otherwise in writing,
in each case subject to Section 5.1 of the Purchase Agreement. |
| (d) | Representations
and Warranties: Each Note Party hereby jointly and severally hereby represents and warrants
to PDG 2007, which representations and warranties shall survive the execution and delivery
hereof, that on and as of the date hereof and after giving effect to this Amendment: |
| 1. | Each
Note Party has the corporate (as applicable) power and authority to execute and deliver the
Transaction Documents to which it is a party (and perform its respective obligations hereunder
and thereunder). The Transaction Documents to which such Note Party is a party, Purchase
Agreement and Security Agreement (as each are amended by this Amendment) each constitute
the legal, valid and binding obligation of such Note Party, enforceable against such Note
Party in accordance with their respective terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar law affecting creditor’s rights generally
and general principles of equity; |
| 2. | Each
Note Party’s representations and warranties set forth in the Purchase Agreement and
in the other Transaction Documents are true and correct in all material respects (or, if
any such representation or warranty is by its term qualified by concepts of materiality,
such representation or warranty is true and correct in all respects) (after giving effect
to updated schedules, as applicable) on and as of the date hereof except to the extent that
such representations and warranties expressly relate solely to an earlier date, in which
case such representations were true and correct in all material respects (or, if any such
representation or warranty is by its term qualified by concepts of materiality, such representation
or warranty is true and correct in all respects) (after giving effect to updated schedules
as applicable) on and as of such earlier date; |
| 3. | After
giving effect to this Amendment, no Default or Event of Default has occurred and is continuing
as of the date hereof; and |
| 4. | All
Indebtedness now due and payable by Company to Investors is unconditionally owing by each
Note Party to Investors, without offset, defense or counterclaim of any kind, nature or description
whatsoever. |
| 5. | Each
Note Party acknowledges that the Investors are specifically relying upon the representations,
warranties and agreements contained in this agreement and that such representation, warranties
and agreements constitute a material inducement to PDG 2007, on behalf of the Investors,
in entering into this Amendment. |
| 6. | There
is no action, suit or proceeding pending or, to the knowledge of the Company, threatened
against or affecting any Note Party which, if adversely determined, would have a material
adverse effect on the condition (financial or otherwise), properties or assets of the Company,
or any instrument, document or other agreement related hereto or required hereby, or impair
the ability of the Guarantor to perform the Company’s obligations hereunder or thereunder. |
| 4. | Amendment
to Notes. The definition of “Average Dentist Compensation” found in Section
2.3(ii) of each Note is hereby amended and restated in its entirety to read as follows: |
“(ii)
“Average Dentist Compensation” shall mean, as to a year, all payments to dentists by PDG, P.A., Park Dental Partners Inc.,
and each of their affiliates of the foregoing entities (collectively, the “Park Dental Entities”). These payment amounts
are not limited to, but shall include: all pre-tax salary, bonus, non-equity deferred compensation, dividends, distributions, or other
payments paid by Park Dental Entities in such year to Employed Dentists (excluding non-cash benefits but not excluding elective salary
reductions to a 401(k) plan); provided, however, for the avoidance of doubt, Average Dentist Compensation shall include
all expenses recorded from equity awards granted subsequent to December 31, 2023 following U.S. GAAP guidelines for Park Dental Entities.
Such payments will be divided by the Annual FTEs for such year to calculate the Average Dentist Compensation. Support for the Average
Dentist Compensation will be provided at the request of PDG 2007 LLC, a Minnesota limited liability company.”
| 5. | Notices. The Company’s address for purposes of all notices, requests, demands, consents,
instructions and other communications required or permitted under the Purchase Agreement
or the Security Agreement was previously changed and is hereby acknowledged to be as follows
unless and until otherwise changed as provided in the Purchase Agreement and the Security
Agreement: |
Personal and Confidential
Park Dental
Attention: Chief Administrator
2200 County Road C-West,
Suite 2210
Roseville, Minnesota 55113
With a copy to:
Taft
Stettinius & Hollister LLP
Attention:
Dave Melloh, Esq.
2200
IDS Center
80
South 8th Street
Minneapolis, Minnesota 55402
| 6. | Reaffirmation. PDG 2007, as Majority in Interest of the Investors and as Secured Agent, hereby repeats
and reaffirms each and all of each Investor’s obligations under the Subordination Agreements,
and agrees that the Subordination Agreements are in full force and effect as of the date
hereof, not subject to any offset, defense or counterclaim. In addition, and solely to the
extent required under the Senior Credit Facility documents and/or the Subordination Agreements,
PDG 2007, as Majority in Interest of the Investors and as Secured Agent, hereby consents
to the incurrence of the senior debt pursuant to the Senior Credit Facility which shall be
part of the “Bank’s Claim” as that term is defined in the Subordination
Agreements. |
| 7. | Effect
of Amendment. The Purchase Agreement, the Notes, and the Security Agreement shall continue
to be in full force and effect in accordance with their respective terms, as hereby amended. |
| 8. | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same agreement. Facsimile
copies of signed signature pages will be deemed binding originals. Regardless of the date
that this Amendment or any counterpart is executed, this Amendment shall be effective as
of the Effective Date set forth above. |
[signature
page follows]
IN WITNESS
WHEREOF, the parties hereto have executed this Amendment effective as of the Effective Date first written above.
| COMPANY: |
|
| |
|
| PDG, P.A., a Minnesota professional
association |
|
|
|
| By: |
/s/
Christopher Steele, D.D.S. |
|
| Name: |
Christopher Steele, D.D.S. |
|
| Its: |
Chief Executive Officer |
|
| |
|
| GUARANTOR: |
|
| |
|
| PARK DENTAL PARTNERS, INC., a Minnesota
corporation |
|
| |
|
| By: |
/s/ Christopher
J. Bernander |
|
| Name: |
Christopher J. Bernander |
|
| Its: |
Chief Financial Officer |
|
| |
|
| MAJORITY IN INTEREST OF THE INVESTORS and SECURED AGENT: |
| |
|
| PDG 2007 LLC, a Minnesota limited
liability company |
|
| |
|
| /s/
Nicholas J. Swenson |
|
| Name: |
Nicholas J. Swenson |
|
| Its: |
Manager |
|
Solely for purposes of consenting to this Amendment and in reliance on the reaffirmation
in Section 6 hereof:
| SENIOR CREDITOR: |
|
| |
|
| U.S. BANK, NATIONAL ASSOCIATION |
|
| |
|
| By: |
/s/
Tyler Morgan |
|
| Name: |
Tyler Morgan |
|
| Its: |
Assistant Vice President |
|
EXHIBIT
A
Guaranty
See
Attached.
GUARANTY
This
GUARANTY dated as of March 26, 2024 (this “Guaranty”), is made by PARK DENTAL PARTNERS INC., a Minnesota corporation
(“Guarantor”), in favor and for the benefit of PDG 2007 LLC, a Minnesota limited liability company, as “Majority
in Interest of the Investors,” as such term is defined in the Purchase Agreement (defined below) (herein, the “Investor
Agent”).
WHEREAS,
reference is made to the Amendment No. 2 to the Senior Secured Note Purchase Agreement, Amendment No. 1 to Security Agreement, Amendment
No. 1 to Senior Secured Promissory Notes, Consent and Joinder (the “Amendment”), dated as of March 26, 2024, which
amends that certain Senior Secured Note Purchase Agreement dated as of September 26, 2007 (the “Purchase Agreement”),
by and between PDG, P.A., a Minnesota professional corporation (“Borrower”), the other Investors party thereto, and
Investor Agent.
NOW,
THEREFORE, in order to induce Investor Agent to consent to the Transactions (as defined in the Amendment) and waive any default thereunder
(as further described in the Amendment), and in consideration of the financial accommodations given or to be given or continued to the
Company by Investors, and for other good and valuable consideration to Guarantor, Guarantor hereby agrees as follows:
1.
All capitalized terms used in this Guaranty and not otherwise defined herein shall have the respective meanings ascribed to them in the
Purchase Agreement, Amendment and the Security Agreement (as defined in the Amendment).
2.
Guarantor hereby irrevocably and unconditionally guarantees to Investor Agent, for the ratable benefit of the Investors, the full and
prompt payment and performance when due, whether by acceleration or otherwise, and at all times thereafter, of any and all indebtedness
and obligations of the Company to Investors including extensions, renewals or refundings thereof (and extensions, renewals or refundings
made after any release or termination hereof), whether such be direct or indirect, liquidated or unliquidated, absolute or contingent,
single, joint, by the entirety or several, now existing or hereafter arising, due or to become due whether or not originally contracted
with Investors, including, without limitation, any and all obligations of the Company any such Investor arising under those certain promissory
notes (as the same may be amended, modified, supplemented or restated from time to time, collectively the “Notes”,
and each, a “Note”) dated as of the September 26, 2007, issued by Company in favor such Investors (hereinafter collectively
referred to as “Obligations” or, in the singular “Obligation”). “Obligations” or a
“Obligation” shall also include expenses, including, without limitation, reasonable attorneys’ fees, incurred by Investor
Agent in the efforts to collect any Obligation or to enforce the undertakings of Guarantor hereunder, or if Investor Agent asserts any
claim, defense, or offset against Investor Agent that either Borrower or Guarantor has waived or agreed not to assert under the Amendment
or this Guaranty.
3.
Whenever any such Obligations shall become due and remain unpaid, Guarantor shall, on demand, make prompt payment of the amount due thereon.
4.
Guarantor shall be obligated to make payment in full to Investor Agent in accordance with the terms and provisions hereof irrespective
of the validity, regularity or enforceability of any instrument or writing evidencing such Obligation or of the Obligation itself, and
if the Obligation is secured, said obligation of Guarantor to make payment hereunder shall be made irrespective of the validity, perfection,
regularity or enforceability of any instrument or writing evidencing such security or of the security itself and it shall not be necessary
for Investor Agent to resort to such security before enforcing Guarantor’s liability hereunder. Demand may be made upon Guarantor
for the enforcement of this Guaranty without the necessity of action at any time by Investor Agent against the Company or to first accelerate
the maturity of any Obligations. Any action taken by Investor Agent against the Company shall in no event be considered a waiver or diminishment
of any rights against Guarantor under this Guaranty and Investor Agent shall, at Investor Agent’s sole discretion, have the right
at any time to discontinue any action or proceeding against the Company and require full payment by Guarantor of the Obligations together
with attorneys’ fees, cost of the proceedings and court costs. It is agreed that a compromise and settlement of any Obligation
shall, in no sense, compromise or settle Guarantor’s liability hereunder. Investor Agent may apply any Collateral for the Obligations
in such order as it may elect and without any obligation to account to Guarantor for the manner or order of application.
5.
Guarantor agrees that this Guaranty shall be construed as a continuing, absolute, and unconditional guaranty of the Obligations without
regard to (i) the validity, regularity or enforceability of the Obligations or the disaffirmance thereof in any insolvency or bankruptcy
proceeding relating to Borrower, or (ii) any event or any conduct or action of Borrower or the Investor Agent or any other party which
might otherwise constitute a legal or equitable discharge of a surety or guarantor but for this provision.
6.
Guarantor does hereby waive presentment of any instrument, demand for payment, protest and notice of dishonor or nonpayment and Guarantor
waives all rights arising out of any statute now existing or hereafter enacted with respect to guaranty or suretyship and which may otherwise
require Investor Agent at any time to take legal action against the Company. Guarantor does hereby waive notice of the acceptance of
this Guaranty and notice of any Obligation contracted or incurred by the Company.
7.
Investor Agent may, from time to time, without the consent of or notice to Guarantor, change the manner, interest rate, place or terms
of payment, and change or extend the time of payment of, refund, increase, decrease, renew or alter in any manner any Obligation or security
therefor, and may, from time to time, at its own discretion, without the consent of or notice to Guarantor, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any order, any collateral pledged or mortgaged to secure any Obligation, without
in any way affecting Guarantor’s obligation hereunder.
8.
The obligations of Guarantor hereunder shall apply to all Obligations, including Obligations arising on or prior to notice in writing
from Guarantor that Guarantor will not be responsible for any further Obligations or notice from a Guarantor’s personal representative
that Guarantor has died or been adjudicated incompetent to the extent Guarantor hereunder is a natural person. Any such notice, to be
effective, must be actually received by Investor Agent. Notwithstanding the giving of such notice, the obligations of Guarantor shall
continue in full force and effect as to all Obligations then existing including those contingent, unliquidated or not yet accrued and
to any Obligations thereafter arising, to the extent that Investor Agent may be bound or permitted by contract or otherwise to create
or permit the creation of additional Obligations including those which may or might have been contingent, unliquidated or not yet accrued
Obligations at the time such notice is given. This Guaranty shall remain in full force and effect with respect to the Guarantor until
five days after the Investor Agent receives written notice from the Guarantor revoking this Guaranty as to the Guarantor. In the event
that this Guaranty is revoked by the Guarantor, said revocation shall have no effect on the continuing liability of the Guarantor to
guarantee unconditionally the prompt payment of all Obligations which are contracted or incurred prior to the fifth day after receipt
of the revocation notice, including such prior Obligations which are subsequently renewed, modified or extended after the revocation
becomes effective, as well as all extensions of credit made after revocation pursuant to commitments made prior to such revocation. Revocation
of this Guaranty by any guarantor shall not relieve any other guarantor of any liability. Except as provided in Section 8, the
Guarantor’s obligations under this Guaranty for the Obligations will terminate upon the payment and performance in full of the
Obligations.
9.
This Guaranty shall be understood to be for the benefit of Investor Agent or for such other person or persons as may from time to time
become or be the holders of the Obligations; and this Guaranty shall be transferable and negotiable without notice to Guarantor with
the same force and effect and to the same extent as such Obligations may be transferable.
10.
Investor Agent may release any other surety, guarantor or the Company without affecting the liability hereunder of Guarantor unless released
by Investor Agent in writing. This Guaranty shall be binding upon Guarantor and upon Guarantor’s heirs, executors, personal representatives,
administrators, legal representatives, successors and assigns and shall likewise be enforceable against any trusts created by Guarantor
and shall inure to the benefit of Investor Agent, and their respective successors and assigns.
11.
Guarantor agrees that the Investor Agent is expressly authorized to forward or deliver any or all Collateral and security which may at
any time be placed with it by Borrower or any other person, directly to Borrower for collection and remittance or for credit, or to collect
the same in any other manner and to renew, extend, compromise, exchange, release, surrender or modify the installments of, any or all
of such Collateral and security with or without consideration and without notice to the Guarantor and without in any manner affecting
the absolute liability of the Guarantor hereunder in respect of the Obligations; and that the liability of the Guarantor hereunder shall
not be affected or impaired by any failure, neglect or omission on the part of the Investor Agent to realize upon the obligations, or
upon any Collateral or security therefor, nor by the taking by the Investor Agent of any other guaranty or guaranties to secure the obligations
or any other indebtedness of Borrower to the Investor Agent, nor by the taking by the Investor Agent of Collateral or security of any
kind nor by any act or failure to act whatsoever which, but for this provision, might or could in law or in equity act to release or
reduce the Guarantor’s liability hereunder.
12.
Guarantor agrees that this Guaranty, and all obligations hereunder shall remain in full force and effect at all times hereinafter during
the term hereof, notwithstanding any action or undertakings by, or against, Investor Agent, or concerning any collateral securing the
Obligations in any proceeding under any bankruptcy law; including without limitation, matters relating to valuation of collateral, election
or imposition of secured or unsecured claim status upon claims by Investor Agent, pursuant to the Bankruptcy Code, or Rules of Bankruptcy
Procedure as may be applicable from time to time. Guarantor understands and agrees that in the event any payment made by or on behalf
of the Company respecting any Obligation or any portion of any such payment shall at any time be repaid by the recipient in compliance
with an order (whether or not final) by a court of competent jurisdiction pursuant to any provision of any bankruptcy law as now existing
or hereafter amended or applicable state law, the Obligations shall not be deemed to have been paid to the extent of the repayment so
made, the obligations of Guarantor shall continue in full force and effect and such recipient, whether or not that be Investor Agent,
will continue to be entitled to the full benefits of this Guaranty notwithstanding any release, termination or return of this Guaranty.
If acceleration of the time for payment of any amount payable by the Company to Investor Agent is stayed upon the insolvency, bankruptcy
or reorganization of such the Company, all such amounts otherwise subject to acceleration under the terms of the Obligations shall nonetheless
be payable by Guarantor hereunder forthwith on demand by Investor Agent.
13.
Guarantor hereby agrees that no payment of any Obligation shall entitle it by subrogation, indemnification, contribution, reimbursement
or otherwise to any payment by the Company or by any other guarantor of any Obligation or from or out of any property of the Company
or of any other guarantor of any Obligation until all Obligations have been paid in full.
14.
Guarantor agrees that (i) the Guarantor will indirectly benefit by and from the Transactions (as defined in the Amendment); (ii) the
Guarantor has received legal and adequate consideration for the execution of this Guaranty and has executed and delivered this Guaranty
to the Investor Agent in good faith in exchange for reasonably equivalent value; (iii) the Guarantor is not presently insolvent and will
not be rendered insolvent by virtue of the execution and delivery of this Guaranty; (iv) the Guarantor has not executed or delivered
this Guaranty with actual intent to hinder, delay or defraud the Guarantor’s creditors; and (v) the Investor Agent has agreed to
consent to the Transaction (as defined in the Amendment) in reliance upon this Guaranty.
15. Guarantor waives any and all claims against the Investor
Agent and defenses to performance and payment hereunder relating in any way, directly or indirectly, to the performance of the Investor
Agent’s obligations or exercise of any of its rights under the Purchase Agreement or Amendment. Guarantor agrees that no failure
on the part of the Investor Agent to exercise, and no delay in exercising, any right or remedy hereunder shall operate as or constitute
a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right or remedy granted hereby or by any related document or by law.
16. Guarantor agrees that this Guaranty shall be binding upon the legal representatives, successors and assigns of the Guarantor, and shall
inure to the benefit of the Investor Agent and its successors, assigns and legal representatives; that notwithstanding the foregoing,
the Guarantor shall have no right to assign or otherwise transfer the Guarantor’s rights and obligations under this Guaranty to
any third party without the prior written consent of the Investor Agent; and that any such assignment or transfer shall not release or
affect the liability of the Guarantor hereunder in any manner whatsoever.
17. Guarantor agrees that the possession of this instrument of guaranty by the Investor Agent shall be conclusive evidence of due execution
and delivery hereof by the Guarantor.
18. Guarantor agrees that if, at any time, all or any part of any payment previously applied by the Investor Agent to any of the obligations
must be returned by the Investor Agent upon the insolvency, bankruptcy or reorganization of the Guarantor or otherwise, whether by court
order, administrative order or settlement, the Guarantor shall remain liable for the full amount returned as if said amount had never
been received by the Investor Agent, notwithstanding any term of this Guaranty or the cancellation or return of any note or other agreement
evidencing the obligations.
19.
THIS GUARANTY AND ALL OBLIGATIONS, RIGHTS AND REMEDIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.
20.
Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Guaranty.
In any action or proceeding involving any state law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally, if the obligations of the undersigned hereunder would otherwise be held or determined to be void,
invalid or unenforceable on account of the amount of the undersigned’s liability under this Guaranty, then, notwithstanding any
other provision of this Guaranty to the contrary, the amount of such liability shall, without any further action by the undersigned,
the Investor Agent or any other person, be automatically limited and reduced to the highest amount which is valid and enforceable as
determined in such action or proceeding.
21.
AT THE OPTION OF INVESTOR AGENT, THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN MINNEAPOLIS,
MINNESOTA; AND THE UNDERSIGNED CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS
IS NOT CONVENIENT. IN THE EVENT THE UNDERSIGNED COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY
ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY INVESTOR AGENT, AT ITS OPTION, SHALL BE ENTITLED TO HAVE
THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE
LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
22.
GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY (WHICH INVESTOR AGENT ALSO WAIVES) IN ANY ACTION, SUCH PROCEEDING OR COUNTERCLAIM
OF ANY KIND ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OBLIGATIONS OR INVESTOR AGENT’S CONDUCT IN RESPECT TO ANY OF THE FOREGOING.
23. The undersigned represents and
warrants to Investor Agent that:
(a)
the undersigned is a corporation duly organized and existing in good standing under the laws of the State of Minnesota and has full power
and authority to make and deliver this Guaranty to which it is a party;
(b)
the execution, delivery and performance of this Guaranty by the undersigned have been duly authorized by all necessary action of its
board of directors, and do not and will not violate the provisions of, or constitute a default under, any presently applicable law or
its Articles of Incorporation, Bylaws or any agreement presently binding on it;
(c)
there is no action, suit or proceeding pending or, to the knowledge of the Guarantor, threatened against or affecting the Guarantor which,
if adversely determined, would have a material adverse effect on the condition (financial or otherwise), properties or assets of the
Guarantor, or which would question the validity of this Guaranty or any instrument, document or other agreement related hereto or required
hereby, or impair the ability of the Guarantor to perform the Guarantor’s obligations hereunder or thereunder;
(d)
this Guaranty has been duly executed and delivered by an authorized officer of the undersigned and constitutes the lawful, binding and
legally enforceable obligation of the undersigned, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; and
(e)
the authorization, execution, delivery and performance of this Guaranty by the undersigned do not require notification to, registration
with, or consent or approval by, any federal, state or local regulatory body or administrative agency.
[Remainder
of page intentionally left blank;
signature
page follows]
SIGNED AND DELIVERED the date
first stated above.
| Address: |
GUARANTOR: |
| |
|
| Park Dental Partners, Inc. |
PARK DENTAL PARTNERS, INC., |
| Attention: Chief Administrator |
a Minnesota corporation |
| 2200 County Road C-West, Suite 2210 |
|
| Roseville, Minnesota 55113 |
By: |
/s/ Christopher J. Bernander |
| |
Name: |
Christopher J. Bernander |
| |
Its: |
Chief Financial Officer |
[SIGNATURE
PAGE TO GUARANTY]
| Certificate Of Completion |
|
| Envelope Id: C09CD7ADFB344071B7384585E3344233 |
Status: Completed |
| Subject: Complete with DocuSign: Amendment
No. 2 to Senior Secured Note Purchase Agreement, Amendment No... |
| Practice: Business &
Finance |
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| Client\Matter #: |
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| Office: |
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| Source Envelope: |
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| Document Pages: 7 |
Signatures: 1 |
Envelope Originator: |
| Certificate Pages: 5 |
Initials: 0 |
Georgia Hott |
| AutoNav: Enabled |
|
425 Walnut Street, Suite 1800 |
| EnvelopeId Stamping: Enabled |
|
Cincinnati, OH 45202 |
| Time Zone: (UTC-05:00) Eastern Time (US
& Canada) |
GHott@taftlaw.com |
| |
|
IP Address: 38.92.135.36 |
Record Tracking
| Status: Original | Holder:
Georgia Hott | Location:
DocuSign |
| 3/26/2024 2:17:41 PM | GHott@taftlaw.com | |
| Signer Events |
Signature |
Timestamp |
| Tyler Morgan |
/s/ Tyler Morgan |
Sent: 3/26/2024 2:19:12 PM |
| tyler.morgan@usbank.com |
|
Viewed: 3/26/2024 2:26:49 PM |
| Security Level: Email, Account Authentication |
|
Signed: 3/26/2024 2:28:22 PM |
| (None) |
Signature Adoption: Pre-selected Style |
|
| |
|
| |
Using IP Address: 10.161.1.21 |
|
| Electronic Record and Signature Disclosure: |
|
|
| Accepted: 3/26/2024 2:26:49 PM |
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| ID: 40ec237a-8a41-44b4-8724-0f76f7b09550 |
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Signature |
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Status |
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Status |
Timestamp |
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| Carbon Copy Events |
Status |
Timestamp |
| Jon Armour |
 |
Sent: 3/26/2024
2:19:12 PM |
| JArmour@winthrop.com |
|
| Security Level: Email, Account Authentication |
|
|
| (None) |
|
|
| Electronic Record and Signature Disclosure: |
|
|
| Not Offered via DocuSign |
|
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| |
|
|
| Jordanne Johnston |
|
Sent: 3/26/2024 2:19:13
PM |
| jjohnston@winthrop.com |
|
| Security Level: Email, Account Authentication |
|
| (None) |
|
|
| Electronic Record and Signature Disclosure: |
|
|
| Not Offered via DocuSign |
|
|
| Carbon Copy Events |
Status |
Timestamp |
| Leah Thorson |
|
Sent: 3/26/2024 2:19:13 PM |
| lthorson@taftlaw.com |
|
| Security Level: Email, Account Authentication |
|
| (None) |
|
| Electronic Record and Signature Disclosure: |
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| Not Offered via DocuSign |
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Signature |
Timestamp |
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Signature |
Timestamp |
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Status |
Timestamps |
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| Envelope Sent |
Hashed/Encrypted |
3/26/2024 2:19:13 PM |
| Certified Delivered |
Security Checked |
3/26/2024 2:26:49 PM |
| Signing Complete |
Security Checked |
3/26/2024 2:28:22 PM |
| Completed |
Security Checked |
3/26/2024 2:28:22 PM |
| Payment Events |
Status |
Timestamps |
| Electronic Record and Signature Disclosure |
|
|
Certificate Of Completion
| Envelope Id: 5C5AC913F0AB4387A01F06D76E819BB8 |
Status: Completed |
| Subject: Complete with DocuSign: Amendment
No. 2 to Senior Secured Note Purchase Agreement, Amendment No... |
| Practice: Business &
Finance |
|
|
| Client\Matter #: |
|
|
| Office: |
|
|
| Source Envelope: |
|
|
| Document Pages: 7 |
Signatures: 1 |
Envelope Originator: |
| Certificate Pages: 5 |
Initials: 0 |
Georgia Hott |
| AutoNav: Enabled |
|
425 Walnut Street, Suite 1800 |
| EnvelopeId Stamping: Enabled |
|
Cincinnati, OH 45202 |
| Time Zone: (UTC-05:00) Eastern Time (US
& Canada) |
GHott@taftlaw.com |
| |
|
IP Address: 38.92.135.36 |
Record Tracking
| Status: Original | Holder:
Georgia Hott | Location:
DocuSign |
| 3/26/2024 2:16:25 PM | GHott@taftlaw.com | |
| Signer Events |
Signature |
Timestamp |
| Christopher Steele, D.D.S. |
/s/ Christopher Steele, D.D.S. |
Sent: 3/26/2024 2:17:30 PM |
| csteele@parkdental.com |
|
Viewed: 3/26/2024 2:52:39 PM |
| Security Level: Email, Account Authentication |
|
Signed: 3/26/2024 2:53:27 PM |
| (None) |
Signature Adoption: Pre-selected Style |
|
| |
|
| |
Using IP Address: 152.117.114.204 |
|
| Electronic Record and Signature
Disclosure: |
|
|
| Accepted: 3/26/2024 2:52:39
PM |
|
|
| ID: 813ca59d-8df2-4e48-aaf2-b098e6eae9fc |
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| In Person Signer Events |
Signature |
Timestamp |
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Status |
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Status |
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Status |
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| Certified Delivery Events |
Status |
Timestamp |
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| Carbon Copy Events |
Status |
Timestamp |
| Brittany Kotta |
|
Sent: 3/26/2024 2:17:31 PM |
| bkotta@parkdentalpartners.com |
Viewed: 3/26/2024 2:57:47 PM |
| Security Level: Email, Account Authentication |
|
| (None) |
|
|
| Electronic Record and Signature Disclosure: |
|
|
| Not Offered via DocuSign |
|
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| |
|
|
| Leah Thorson |
|
Sent: 3/26/2024 2:17:32 PM |
| lthorson@taftlaw.com |
|
| Security Level: Email, Account Authentication |
|
| (None) |
|
| Electronic Record and Signature Disclosure: |
|
| Not Offered via DocuSign |
|
|
| Witness Events |
Signature |
Timestamp |
| |
|
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| Notary Events |
Signature |
Timestamp |
| |
|
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| Envelope Summary Events |
Status |
Timestamps |
| Envelope Sent |
Hashed/Encrypted |
3/26/2024 2:17:32 PM |
| Certified Delivered |
Security Checked |
3/26/2024 2:52:39 PM |
| Signing Complete |
Security Checked |
3/26/2024 2:53:27 PM |
| Completed |
Security Checked |
3/26/2024 2:53:27 PM |
| Payment Events |
Status |
Timestamps |
| Electronic Record and Signature Disclosure |
|
|
Certificate Of Completion
| Envelope Id: CF7D5F03D5A244308F403683BFCBF35C |
Status: Completed |
| Subject: Complete with DocuSign: PDG -
PDPI Guaranty (Secured).pdf, Amendment No. 2 to Senior Secured No... |
| Practice: Business &
Finance |
|
|
| Client\Matter #: |
|
|
| Office: |
|
|
| Source Envelope: |
|
|
| Document Pages: 13 |
Signatures: 2 |
Envelope Originator: |
| Certificate Pages: 5 |
Initials: 0 |
Georgia Hott |
| AutoNav: Enabled |
|
425 Walnut Street, Suite 1800 |
| EnvelopeId Stamping: Enabled |
|
Cincinnati, OH 45202 |
| Time Zone: (UTC-05:00) Eastern Time (US
& Canada) |
GHott@taftlaw.com |
| |
|
IP Address: 38.92.135.36 |
Record Tracking
| Status: Original |
Holder: Georgia Hott |
Location: DocuSign |
| 3/26/2024
1:47:29 PM |
GHott@taftlaw.com |
|
| Signer Events |
Signature |
Timestamp |
| Christopher Bernander |
/s/ Christopher
Bernander |
Sent: 3/26/2024 1:48:49 PM |
| cbernander@parkdental.com |
|
Resent: 3/26/2024 5:14:56 PM |
| CFO |
|
Viewed: 3/26/2024 5:34:03 PM |
| Park Dental |
|
Signed: 3/26/2024 5:35:19 PM |
| Security Level: Email, Account Authentication |
Signature Adoption: Pre-selected Style |
|
| (None) |
Using IP Address: 107.119.53.69 |
|
| |
Signed using mobile |
|
| |
|
|
| Electronic Record and Signature Disclosure: |
|
|
| Accepted: 3/26/2024 2:01:29
PM |
|
|
| ID: 0a55e79b-b81c-497c-b992-d54f378fe0dc |
|
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| In Person Signer Events |
Signature |
Timestamp |
| |
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| Editor Delivery Events |
Status |
Timestamp |
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| Agent Delivery Events |
Status |
Timestamp |
| |
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| Intermediary Delivery Events |
Status |
Timestamp |
| |
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| Certified Delivery Events |
Status |
Timestamp |
| |
|
|
| Carbon Copy Events |
Status |
Timestamp |
| Brittany Kotta |
|
Sent: 3/26/2024 1:48:49 PM |
| bkotta@parkdentalpartners.com |
|
| Security Level: Email, Account Authentication |
|
| (None) |
|
| Electronic Record and Signature Disclosure: |
|
| Not Offered via DocuSign |
|
|
| |
|
|
| Leah Thorson |
|
|
| lthorson@taftlaw.com |
|
|
| Security Level: Email, Account Authentication |
|
Sent: 3/26/2024 1:48:50 PM |
| (None) |
|
| |
|
| Electronic Record and Signature Disclosure: |
|
| Not Offered via DocuSign |
|
|
| Witness Events |
Signature |
Timestamp |
| |
|
|
| Notary Events |
Signature |
Timestamp |
| |
|
|
| Envelope Summary Events |
Status |
Timestamps |
| Envelope Sent |
Hashed/Encrypted |
3/26/2024 1:48:50 PM |
| Envelope Updated |
Security Checked |
3/26/2024 2:14:41 PM |
| Envelope Updated |
Security Checked |
3/26/2024 2:14:41 PM |
| Certified Delivered |
Security Checked |
3/26/2024 5:34:03 PM |
| Signing Complete |
Security Checked |
3/26/2024 5:35:19 PM |
| Completed |
Security Checked |
3/26/2024 5:35:19 PM |
| Payment Events |
Status |
Timestamps |
| Electronic Record and Signature Disclosure |
|
|
Certificate Of Completion
| Envelope Id: DE440DE9B3A641C68F00E1C93740D748 |
Status: Completed |
| Subject: Complete with DocuSign: Amendment
No. 2 to Senior Secured Note Purchase Agreement, Amendment No... |
| Practice: Business &
Finance |
|
|
| Client\Matter #: |
|
|
| Office: |
|
|
| Source Envelope: |
|
|
| Document Pages: 7 |
Signatures: 1 |
Envelope Originator: |
| Certificate Pages: 5 |
Initials: 0 |
Georgia Hott |
| AutoNav: Enabled |
|
425 Walnut Street, Suite 1800 |
| EnvelopeId Stamping: Enabled |
|
Cincinnati, OH 45202 |
| Time Zone: (UTC-05:00) Eastern Time (US
& Canada) |
GHott@taftlaw.com |
| |
|
IP Address: 38.92.135.36 |
Record Tracking
| Status: Original |
Holder: Georgia Hott |
Location: DocuSign |
| 3/26/2024
1:46:36 PM |
GHott@taftlaw.com |
|
| Signer Events |
Signature |
Timestamp |
| Nicholas J. Swenson |
/s/ Nicholas
J. Swenson |
Sent: 3/26/2024 1:47:21 PM |
| nick@theresourcegroup.co |
|
Viewed: 3/26/2024 8:57:54 PM |
| Security Level: Email, Account Authentication |
|
Signed: 3/26/2024 8:59:55 PM |
| (None) |
Signature Adoption: Drawn on Device |
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| Accepted: 3/26/2024 8:57:54 PM |
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| ID: 9ca6b921-33d2-45a0-ad2a-c6bd05deac04 |
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| Alissa Mitchell |
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Sent: 3/26/2024 1:47:21 PM |
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| Leah Thorson |
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Sent: 3/26/2024 1:47:22 PM |
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Exhibit 10.10
Execution Copy
GUARANTY
This GUARANTY dated as of
March 26, 2024 (this “Guaranty”), is made by PARK DENTAL PARTNERS INC., a Minnesota corporation (“Guarantor”),
in favor and for the benefit of PDG 2007 LLC, a Minnesota limited liability company, as “Majority in Interest of the Investors,”
as such term is defined in the Purchase Agreement (defined below) (herein, the “Investor Agent”).
WHEREAS, reference is made
to the Amendment No. 2 to the Senior Secured Note Purchase Agreement, Amendment No. 1 to Security Agreement, Amendment No. 1
to Senior Secured Promissory Notes, Consent and Joinder (the “Amendment”), dated as of March 26, 2024, which amends
that certain Senior Secured Note Purchase Agreement dated as of September 26, 2007 (the “Purchase Agreement”),
by and between PDG, P.A., a Minnesota professional corporation (“Borrower”), the other Investors party thereto, and
Investor Agent.
NOW, THEREFORE, in order to
induce Investor Agent to consent to the Transactions (as defined in the Amendment) and waive any default thereunder (as further described
in the Amendment), and in consideration of the financial accommodations given or to be given or continued to the Company by Investors,
and for other good and valuable consideration to Guarantor, Guarantor hereby agrees as follows:
1. All
capitalized terms used in this Guaranty and not otherwise defined herein shall have the respective meanings ascribed to them in the Purchase
Agreement, Amendment and the Security Agreement (as defined in the Amendment).
2. Guarantor
hereby irrevocably and unconditionally guarantees to Investor Agent, for the ratable benefit of the Investors, the full and prompt payment
and performance when due, whether by acceleration or otherwise, and at all times thereafter, of any and all indebtedness and obligations
of the Company to Investors including extensions, renewals or refundings thereof (and extensions, renewals or refundings made after any
release or termination hereof), whether such be direct or indirect, liquidated or unliquidated, absolute or contingent, single, joint,
by the entirety or several, now existing or hereafter arising, due or to become due whether or not originally contracted with Investors,
including, without limitation, any and all obligations of the Company any such Investor arising under those certain promissory notes (as
the same may be amended, modified, supplemented or restated from time to time, collectively the “Notes”, and each,
a “Note”) dated as of the September 26, 2007, issued by Company in favor such Investors (hereinafter collectively
referred to as “Obligations” or, in the singular “Obligation”). “Obligations” or a “Obligation”
shall also include expenses, including, without limitation, reasonable attorneys’ fees, incurred by Investor Agent in the efforts
to collect any Obligation or to enforce the undertakings of Guarantor hereunder, or if Investor Agent asserts any claim, defense, or offset
against Investor Agent that either Borrower or Guarantor has waived or agreed not to assert under the Amendment or this Guaranty.
3. Whenever
any such Obligations shall become due and remain unpaid, Guarantor shall, on demand, make prompt payment of the amount due thereon.
4. Guarantor
shall be obligated to make payment in full to Investor Agent in accordance with the terms and provisions hereof irrespective of the
validity, regularity or enforceability of any instrument or writing evidencing such Obligation or of the Obligation itself, and if
the Obligation is secured, said obligation of Guarantor to make payment hereunder shall be made irrespective of the validity,
perfection, regularity or enforceability of any instrument or writing evidencing such security or of the security itself and it
shall not be necessary for Investor Agent to resort to such security before enforcing Guarantor’s liability hereunder. Demand
may be made upon Guarantor for the enforcement of this Guaranty without the necessity of action at any time by Investor Agent
against the Company or to first accelerate the maturity of any Obligations. Any action taken by Investor Agent against the Company
shall in no event be considered a waiver or diminishment of any rights against Guarantor under this Guaranty and Investor Agent
shall, at Investor Agent’s sole discretion, have the right at any time to discontinue any action or proceeding against the
Company and require full payment by Guarantor of the Obligations together with attorneys’ fees, cost of the proceedings and
court costs. It is agreed that a compromise and settlement of any Obligation shall, in no sense, compromise or settle
Guarantor’s liability hereunder. Investor Agent may apply any Collateral for the Obligations in such order as it may elect and
without any obligation to account to Guarantor for the manner or order of application.
5. Guarantor
agrees that this Guaranty shall be construed as a continuing, absolute, and unconditional guaranty of the Obligations without regard to
(i) the validity, regularity or enforceability of the Obligations or the disaffirmance thereof in any insolvency or bankruptcy proceeding
relating to Borrower, or (ii) any event or any conduct or action of Borrower or the Investor Agent or any other party which might
otherwise constitute a legal or equitable discharge of a surety or guarantor but for this provision.
6. Guarantor
does hereby waive presentment of any instrument, demand for payment, protest and notice of dishonor or nonpayment and Guarantor waives
all rights arising out of any statute now existing or hereafter enacted with respect to guaranty or suretyship and which may otherwise
require Investor Agent at any time to take legal action against the Company. Guarantor does hereby waive notice of the acceptance of this
Guaranty and notice of any Obligation contracted or incurred by the Company.
7. Investor
Agent may, from time to time, without the consent of or notice to Guarantor, change the manner, interest rate, place or terms of payment,
and change or extend the time of payment of, refund, increase, decrease, renew or alter in any manner any Obligation or security therefor,
and may, from time to time, at its own discretion, without the consent of or notice to Guarantor, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any order, any collateral pledged or mortgaged to secure any Obligation, without in any
way affecting Guarantor’s obligation hereunder.
8. The
obligations of Guarantor hereunder shall apply to all Obligations, including Obligations arising on or prior to notice in writing from
Guarantor that Guarantor will not be responsible for any further Obligations or notice from a Guarantor’s personal representative
that Guarantor has died or been adjudicated incompetent to the extent Guarantor hereunder is a natural person. Any such notice, to be
effective, must be actually received by Investor Agent. Notwithstanding the giving of such notice, the obligations of Guarantor shall
continue in full force and effect as to all Obligations then existing including those contingent, unliquidated or not yet accrued and
to any Obligations thereafter arising, to the extent that Investor Agent may be bound or permitted by contract or otherwise to create
or permit the creation of additional Obligations including those which may or might have been contingent, unliquidated or not yet accrued
Obligations at the time such notice is given. This Guaranty shall remain in full force and effect with respect to the Guarantor until
five days after the Investor Agent receives written notice from the Guarantor revoking this Guaranty as to the Guarantor. In the event
that this Guaranty is revoked by the Guarantor, said revocation shall have no effect on the continuing liability of the Guarantor to guarantee
unconditionally the prompt payment of all Obligations which are contracted or incurred prior to the fifth day after receipt of the revocation
notice, including such prior Obligations which are subsequently renewed, modified or extended after the revocation becomes effective,
as well as all extensions of credit made after revocation pursuant to commitments made prior to such revocation. Revocation of this Guaranty
by any guarantor shall not relieve any other guarantor of any liability. Except as provided in Section 8, the Guarantor’s
obligations under this Guaranty for the Obligations will terminate upon the payment and performance in full of the Obligations.
9. This
Guaranty shall be understood to be for the benefit of Investor Agent or for such other person or persons as may from time to time become
or be the holders of the Obligations; and this Guaranty shall be transferable and negotiable without notice to Guarantor with the same
force and effect and to the same extent as such Obligations may be transferable.
10. Investor
Agent may release any other surety, guarantor or the Company without affecting the liability hereunder of Guarantor unless released by
Investor Agent in writing. This Guaranty shall be binding upon Guarantor and upon Guarantor’s heirs, executors, personal representatives,
administrators, legal representatives, successors and assigns and shall likewise be enforceable against any trusts created by Guarantor
and shall inure to the benefit of Investor Agent, and their respective successors and assigns.
11. Guarantor
agrees that the Investor Agent is expressly authorized to forward or deliver any or all Collateral and security which may at any time
be placed with it by Borrower or any other person, directly to Borrower for collection and remittance or for credit, or to collect the
same in any other manner and to renew, extend, compromise, exchange, release, surrender or modify the installments of, any or all of such
Collateral and security with or without consideration and without notice to the Guarantor and without in any manner affecting the absolute
liability of the Guarantor hereunder in respect of the Obligations; and that the liability of the Guarantor hereunder shall not be affected
or impaired by any failure, neglect or omission on the part of the Investor Agent to realize upon the obligations, or upon any Collateral
or security therefor, nor by the taking by the Investor Agent of any other guaranty or guaranties to secure the obligations or any other
indebtedness of Borrower to the Investor Agent, nor by the taking by the Investor Agent of Collateral or security of any kind nor by any
act or failure to act whatsoever which, but for this provision, might or could in law or in equity act to release or reduce the Guarantor’s
liability hereunder.
12. Guarantor
agrees that this Guaranty, and all obligations hereunder shall remain in full force and effect at all times hereinafter during the term
hereof, notwithstanding any action or undertakings by, or against, Investor Agent, or concerning any collateral securing the Obligations
in any proceeding under any bankruptcy law; including without limitation, matters relating to valuation of collateral, election or imposition
of secured or unsecured claim status upon claims by Investor Agent, pursuant to the Bankruptcy Code, or Rules of Bankruptcy Procedure
as may be applicable from time to time. Guarantor understands and agrees that in the event any payment made by or on behalf of the Company
respecting any Obligation or any portion of any such payment shall at any time be repaid by the recipient in compliance with an order
(whether or not final) by a court of competent jurisdiction pursuant to any provision of any bankruptcy law as now existing or hereafter
amended or applicable state law, the Obligations shall not be deemed to have been paid to the extent of the repayment so made, the obligations
of Guarantor shall continue in full force and effect and such recipient, whether or not that be Investor Agent, will continue to be entitled
to the full benefits of this Guaranty notwithstanding any release, termination or return of this Guaranty. If acceleration of the time
for payment of any amount payable by the Company to Investor Agent is stayed upon the insolvency, bankruptcy or reorganization of such
the Company, all such amounts otherwise subject to acceleration under the terms of the Obligations shall nonetheless be payable by Guarantor
hereunder forthwith on demand by Investor Agent.
13. Guarantor
hereby agrees that no payment of any Obligation shall entitle it by subrogation, indemnification, contribution, reimbursement or otherwise
to any payment by the Company or by any other guarantor of any Obligation or from or out of any property of the Company or of any other
guarantor of any Obligation until all Obligations have been paid in full.
14. Guarantor
agrees that (i) the Guarantor will indirectly benefit by and from the Transactions (as defined in the Amendment); (ii) the
Guarantor has received legal and adequate consideration for the execution of this Guaranty and has executed and delivered this
Guaranty to the Investor Agent in good faith in exchange for reasonably equivalent value; (iii) the Guarantor is not presently
insolvent and will not be rendered insolvent by virtue of the execution and delivery of this Guaranty; (iv) the Guarantor has
not executed or delivered this Guaranty with actual intent to hinder, delay or defraud the Guarantor’s creditors; and
(v) the Investor Agent has agreed to consent to the Transaction (as defined in the Amendment) in reliance upon this
Guaranty.
15. Guarantor waives any and
all claims against the Investor Agent and defenses to performance and payment hereunder relating in any way, directly or indirectly, to
the performance of the Investor Agent’s obligations or exercise of any of its rights under the Purchase Agreement or Amendment.
Guarantor agrees that no failure on the part of the Investor Agent to exercise, and no delay in exercising, any right or remedy hereunder
shall operate as or constitute a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right or remedy granted hereby or by any related document or by law.
16. Guarantor
agrees that this Guaranty shall be binding upon the legal representatives, successors and assigns of the Guarantor, and shall inure to
the benefit of the Investor Agent and its successors, assigns and legal representatives; that notwithstanding the foregoing, the Guarantor
shall have no right to assign or otherwise transfer the Guarantor’s rights and obligations under this Guaranty to any third party
without the prior written consent of the Investor Agent; and that any such assignment or transfer shall not release or affect the liability
of the Guarantor hereunder in any manner whatsoever.
17. Guarantor
agrees that the possession of this instrument of guaranty by the Investor Agent shall be conclusive evidence of due execution and delivery
hereof by the Guarantor.
18. Guarantor
agrees that if, at any time, all or any part of any payment previously applied by the Investor Agent to any of the obligations must be
returned by the Investor Agent upon the insolvency, bankruptcy or reorganization of the Guarantor or otherwise, whether by court order,
administrative order or settlement, the Guarantor shall remain liable for the full amount returned as if said amount had never been received
by the Investor Agent, notwithstanding any term of this Guaranty or the cancellation or return of any note or other agreement evidencing
the obligations.
19. THIS
GUARANTY AND ALL OBLIGATIONS, RIGHTS AND REMEDIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.
20. Wherever
possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if
any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Guaranty. In
any action or proceeding involving any state law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally, if the obligations of the undersigned hereunder would otherwise be held or determined to be void, invalid
or unenforceable on account of the amount of the undersigned’s liability under this Guaranty, then, notwithstanding any other provision
of this Guaranty to the contrary, the amount of such liability shall, without any further action by the undersigned, the Investor Agent
or any other person, be automatically limited and reduced to the highest amount which is valid and enforceable as determined in such action
or proceeding.
21. AT
THE OPTION OF INVESTOR AGENT, THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN
MINNEAPOLIS, MINNESOTA; AND THE UNDERSIGNED CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT
VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE UNDERSIGNED COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY
TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY INVESTOR AGENT, AT ITS OPTION,
SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
22. GUARANTOR
HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY (WHICH INVESTOR AGENT ALSO WAIVES) IN ANY ACTION, SUCH PROCEEDING OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OBLIGATIONS OR INVESTOR AGENT’S CONDUCT IN RESPECT TO ANY OF THE FOREGOING.
| 23. | The undersigned represents and warrants to Investor Agent that: |
(a) the
undersigned is a corporation duly organized and existing in good standing under the laws of the State of Minnesota and has full power
and authority to make and deliver this Guaranty to which it is a party;
(b) the
execution, delivery and performance of this Guaranty by the undersigned have been duly authorized by all necessary action of its board
of directors, and do not and will not violate the provisions of, or constitute a default under, any presently applicable law or its Articles
of Incorporation, Bylaws or any agreement presently binding on it;
(c) there
is no action, suit or proceeding pending or, to the knowledge of the Guarantor, threatened against or affecting the Guarantor which, if
adversely determined, would have a material adverse effect on the condition (financial or otherwise), properties or assets of the Guarantor,
or which would question the validity of this Guaranty or any instrument, document or other agreement related hereto or required hereby,
or impair the ability of the Guarantor to perform the Guarantor’s obligations hereunder or thereunder;
(d) this
Guaranty has been duly executed and delivered by an authorized officer of the undersigned and constitutes the lawful, binding and legally
enforceable obligation of the undersigned, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; and
(e) the
authorization, execution, delivery and performance of this Guaranty by the undersigned do not require notification to, registration with,
or consent or approval by, any federal, state or local regulatory body or administrative agency.
[Remainder of page intentionally
left blank; signature page follows]
SIGNED AND DELIVERED the date first stated above.
| Address: |
GUARANTOR: |
| |
|
| Park Dental Partners, Inc. |
PARK DENTAL PARTNERS, INC., |
| Attention: Chief Administrator |
a Minnesota corporation |
| 2200 County Road C-West, Suite 2210 |
|
| Roseville, Minnesota 55113 |
By: |
/s/ Christopher J. Bernander |
| |
Name: Christopher J. Bernander |
| |
Its: Chief Financial Officer |
[SIGNATURE PAGE TO GUARANTY]
Exhibit 10.11
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS
EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
ADMINISTRATIVE
RESOURCES AGREEMENT
This
Administrative Resources Agreement (this “Agreement”) is made as of October 1, 2023 (the “Effective
Date”), by and among Park Dental Partners, Inc., a Minnesota corporation (“Manager”), Dental Specialists
of Minnesota, PLLC, a Minnesota professional limited liability company (“Provider”), and solely for purposes of Sections
1.2(b), 12.1, 12.2, 12.4, 12.5, 12.6, 13.3 and Article 16, Alan Law, D.D.S., Ph.D. (“Holder”). Manager, Holder
and Provider are each sometimes herein referred to as a “Party,”and collectively as the “Parties,”
provided however that the term “Party” or “Parties” is only applicable to Holder for purposes of
Sections 1.2(b), 12.1, 12.2, 12.4, 12.5, 12.6 and Article 16.
RECITALS
A. Provider
delivers dental services (“Professional Services”) in Minnesota and Wisconsin; and
B. Provider
desires to engage Manager to provide the management, administrative, business, billing and other services described in this Agreement
so that Provider may focus on the rendering of Professional Services, and Manager desires to provide such services to Provider, all upon
the terms and subject to the conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and agreements set forth below, and/or other good, valuable and sufficient consideration,
the receipt and sufficiency of which are hereby acknowledged, Provider, Manager and Holder agree as follows:
TERMS AND CONDITIONS
1. Appointment.
1.1 Exclusivity.
During the Term of this Agreement, Provider hereby appoints Manager as its sole and exclusive provider of administrative and other business
services as described in this Agreement (collectively, the “Services”) and Manager accepts such appointment and agrees
to provide the Services to Provider. Manager is expressly authorized to provide such Services in any commercially reasonable manner Manager
deems appropriate to meet the requirements of the business functions of Provider, including, without limitation, delegating any duties
under this Agreement to Manager’s affiliates or to one or more subcontractors.
1.2 Representations
and Warranties.
(a) Manager
and Provider represent and warrant to each other as follows: (i) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all requisite action of such party and no other action on the part
of such Party is necessary to authorize this Agreement or to carry out the transactions contemplated hereby; (ii) neither the execution
and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby will: (x) violate any law, statute,
regulation, rule, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency
or court that such Party is subject to; or (y) conflict with, result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice or approval or consent under any
agreement (including any non-compete or other restrictive covenant), contract, lease, license, instrument or other arrangement to which
such Party is bound or to which such Party’s assets are subject (or result in the imposition of any encumbrance upon any of the
assets of such Party); and such Party is not required to give any notice to, make any filing with or obtain any authorization, registration,
qualification, consent, waiver or approval of any government or governmental agency or any third party in connection with the execution,
delivery and performance of the transactions contemplated by this Agreement by such Party.
(b) Holder
represents and warrants to the other Parties that the execution and the delivery of this Agreement, or the consummation of the transactions
contemplated hereby will not conflict with, result in a breach of, constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify or cancel, or require any notice or approval or consent under any agreement (including
any non-compete or other restrictive covenant), contract, lease, license, instrument or other arrangement to which Holder is bound or
to which Holder’s assets are subject (or result in the imposition of any encumbrance upon any of the assets of Holder).
1.3 Compliance
with Dental Practice Act. THE PARTIES HAVE MADE ALL REASONABLE EFFORTS TO ENSURE THAT THIS AGREEMENT COMPLIES WITH THE UNLICENSED
PRACTICE OF DENTISTRY PROHIBITIONS IN THE MINNESOTA DENTAL PRACTICE ACT, MINN. STAT., §§ 150A.01 to 150A.22, ET SEQ. THE
PARTIES UNDERSTAND AND ACKNOWLEDGE THAT SUCH LAWS MAY CHANGE, BE AMENDED, OR HAVE A DIFFERENT INTERPRETATION AND THE PARTIES INTEND
TO COMPLY WITH SUCH LAWS IN THE EVENT OF SUCH OCCURRENCES. UNDER THIS AGREEMENT, PROVIDER SHALL HAVE THE EXCLUSIVE AUTHORITY, MANAGEMENT
AND CONTROL OVER THE DENTAL ASPECTS OF THE PROFESSIONAL SERVICES AND SHALL PROVIDE SUCH SERVICES TO THE EXTENT THEY CONSTITUTE THE PRACTICE
OF DENTISTRY, WHILE MANAGER SHALL HAVE THE SOLE AND EXCLUSIVE AUTHORITY TO FURNISH ADMINISTRATIVE SERVICES IN SUPPORT OF PROVIDER, PROVIDED
THE PROVISION OF SUCH ADMINISTRATIVE SERVICES DOES NOT AFFECT THE PROVIDER’S OR ANY OF ITS DENTISTS’ EXERCISE OF INDEPENDENT
PROFESSIONAL JUDGMENT, REQUIRE THE PROVIDER OR ANY DENTIST TO ACT IN A MANNER WHICH VIOLATES THE PROFESSIONAL STANDARDS FOR DENTISTRY,
OR CONSTITUTE THE PRACTICE OF DENTISTRY AS DEFINED IN THE MINNESOTA DENTAL PRACTICE ACT.
2. Duties
and Responsibilities of Manager.
2.1 Billing
and Collection. Manager shall provide, or engage a third party to provide, such billing and collection services (“Billing
and Collection Services”) as are reasonably necessary to attempt to collect in a timely manner all accounts receivable in connection
with the provision of the Professional Services furnished by Provider. On behalf of and for the account of Provider, and in consultation
with Provider, Manager shall establish and maintain reasonable and compliant billing and collections policies and procedures for Provider
and shall exercise reasonable efforts to bill and collect in a timely manner all professional and other fees for all billable services
provided by Provider. Manager shall observe, and ensure compliance by Provider with, all applicable laws regarding billing and collecting
for professional dental services, and shall further ensure Provider’s compliance with all applicable policies and procedures of
third-party payors. Manager will assist Provider in the provision of training to Provider’s Dentists (as defined in Section 2.1(a) below)
regarding proper coding and coding compliance. In connection with the Billing and Collection Services to be provided hereunder, Provider
hereby appoints Manager as Provider’s exclusive true and lawful agent and grants power of attorney in favor of Manager, and Manager
hereby accepts such appointment and power of attorney, solely for the following purposes:
(a) to
submit, in the name of Provider and any and all dentists employed or engaged by Provider to provide Professional Services for the benefit
of Provider (collectively the “Dentists”), under Provider’s and/or each Dentist’s provider number(s) when
obtained, and on Provider’s and each Dentists’ behalf, all claims for reimbursement to all patients and third party payors,
including, without limitation, state or federal health care programs, for all Professional Services provided by Provider or any Dentist
to patients;
(b) to
collect and receive, in the name of Provider and each Dentist, and on behalf of Provider and each Dentist, all accounts receivable generated
by claims for reimbursement; to take possession of, endorse in the name of Provider, and deposit into Provider’s designated bank
account(s) any notes, checks, money orders, insurance payments, and any other instruments received as payment of accounts receivable;
to take all actions necessary to administer such accounts including, without limitation, extending the time or payment of any such accounts
for cash, credit or otherwise; to discharge or release the obligors of any such accounts; to sue, assign or sell at a discount such accounts
to collection agencies, or take other measures to require the payment of any such accounts;
(c) to
make demand with respect to, settle, compromise, and adjust such claims and to coordinate with collections agencies in the name of Provider
and each Dentist, any note, check, money order, insurance payment, or other instrument received as payment for Professional Services;
(d) to
effect the transfer from Provider’s bank accounts to an account designated by Manager the payment of any and all amounts due by
Provider to Manager, including without limitation, any payment due for the Services or in connection with loans made by Manager or one
of its affiliates to Provider; and
(e) to
sign checks, drafts, bank notes or other instruments on behalf of Provider, and to make withdrawals from Provider’s account for
payments specified in this Agreement and as requested from time to time by Provider, and generally to apply such funds in a manner consistent
with this Agreement.
2.2 Bank
Accounts.
(a) To
facilitate the Billing and Collection Services, Manager shall establish and maintain, in the name of Provider and for Provider’s
benefit, certain bank accounts, including one or more designated the “Provider Account(s)” and one or more designated
the “Operating Account(s)”. Each Provider Account will be in Provider’s name, and Provider will have sole ownership
of such Provider Accounts. To facilitate Manager’s Billing and Collection Services, each Operating Account will be in Manager’s
name and maintained for Provider’s benefit.
(b) All
payments due in respect of dental services rendered and products provided by or on behalf of Provider, and any other amounts payable
to Provider, will be directed to the Provider Accounts. Provider will enter into an agreement chosen by the Parties to (i) establish
and service the Provider Accounts subject to the requirements of this Agreement (including a power of attorney granted by Provider to
Manager), (ii) facilitate the collection and negotiation of payments from third-party payors and the deposit of such payments into
the Provider Accounts, and (iii) sweep all funds, subject to a minimum balance as mutually agreed by the Parties, from the Provider
Accounts into the Operating Accounts on a daily basis. Except in connection with the termination or expiration of this Agreement, any
modification or revocation of such authorization and instructions by Provider without Manager’s prior written consent shall constitute
a breach of this Agreement.
(c) Manager
shall use the Operating Accounts to receive funds from the Provider Accounts and to make payments as specified in this Agreement and
as otherwise requested from time to time by Provider consistent with the terms of this Agreement.
(d) Manager
will transfer funds from the Operating Accounts to payroll accounts owned by Provider for purposes of funding Provider’s payroll
and other expenses borne directly by Provider.
2.3 Personnel.
(a) Manager
shall recruit, employ, engage, lease, hire, train, promote, direct, supervise and terminate the employment or lease of all non-dentist
personnel and such other personnel that are not required by their licenses or otherwise by law to be employed by Provider (or arrange
for the same through an employee leasing arrangement or as independent contractors) (collectively, the “Non-Dentist Personnel”)
as Manager determines is appropriate for the provision of the Professional Services by Provider, provided that such conduct does not
interfere with the Provider’s independent professional judgment or require the Provider to act in a manner which violates the professional
standards for dentistry. Manager shall supervise the Non-Dentist Personnel in all non-clinical aspects of their exercise of such duties.
Provider shall provide clinical oversight, as applicable, to the Non-Dentist Personnel.
(b) Subject
to Provider’s review and approval, Manager shall establish and implement guidelines for the recruitment, selection, and credentialing
of Dentists or other personnel that are required by their licenses or otherwise by law to be employed or engaged by Provider (the “Licensed
Personnel”) to provide Professional Services on behalf of Provider, provided that Provider shall have ultimate responsibility
and decision making authority regarding the hiring, training, supervising, and termination of Licensed Personnel, and provided further
such conduct does not interfere with Provider’s independent professional judgment or require the Provider to act in a manner which
violates the professional standards for dentistry. Manager will carry out such administrative functions as may be appropriate for such
recruitment, selection and credentialing, including, without limitation, advertising for and identifying potential candidates, assisting
Provider in examining and investigating the credentials of such potential candidates, and arranging interviews with such potential candidates.
As part of the Services, Manager shall perform or cause to be performed the following credentialing services: verification of state licensure,
controlled substances registration numbers, malpractice history, and employment history. Manager also shall determine whether any candidate
has been listed in Office of Foreign Assets Control’s “Specially Designated Nationals and Blocked Persons” list
or has been excluded or otherwise sanctioned by a state or federal health care program (e.g., Medicare, Medicaid or TRICARE) by reviewing
the List of Excluded Individuals/Entities published by the Office of Inspector General for the Department of Health and Human Services
and other available sources of information, as determined by Manager.
(c) Manager,
on behalf of Provider, shall pay all salaries and wages and such benefits as set forth in the benefit policy as determined by the Manager
in consultation with Provider (which may include all or portion of health, life, and disability insurance coverage and contributions
under employee benefit plans), travel and office reimbursement expenses, vacation and sick pay, employment and payroll taxes; and the
cost of payroll administration and administration of benefits, for Dentists employed by Provider. In connection therewith, Provider hereby
appoints Manager as Provider’s exclusive true and lawful agent and grants a power of attorney in favor of Manager, and Manager
hereby accepts such appointment and power of attorney to enter into benefits agreements on behalf of Provider.
2.4 Public
Relations. Manager shall develop, with Provider’s consultation, public relations and advertising programs to be implemented
by Provider to effectively promote its Professional Services. Manager shall advise and assist Provider in implementing such programs,
which assistance shall include preparing (or obtaining services necessary for preparing) marketing and advertising materials and negotiating
public relations and advertising contracts on Provider’s behalf. Manager and Provider agree that all public relations and advertising
programs shall be conducted in compliance with all applicable standards of dental ethics, laws and regulations. Manager shall not provide
services contemplated by this Section 2.4 with regard to operations in any state to the extent that the provision of services
by Manager would violate any applicable law.
2.5 Contract
Assistance. Manager shall advise Provider with respect to, and may, as appropriate and permitted by applicable law, negotiate
in the name of and at the expense of Provider, such contractual arrangements with commercial payors and such other third parties as are
reasonably necessary and appropriate for Provider’s operation, including, without limitation, service agreements with health care
facilities, third-party payors, or other purchasers of dental services (collectively, “Contracts”). Manager is hereby
expressly authorized, as Provider’s agent and at Provider’s expense, to execute and deliver any of such Contracts, in the
name of and on behalf of Provider and each Dentist, and presentation of a copy of this Agreement shall constitute conclusive evidence
of such agency. Manager may, in the name and on behalf of Provider and each Dentist, modify, supplement, amend, or terminate, or grant
waivers or releases of obligations under, any of such Contracts; provided, however, that Manager shall not have authority to amend this
Agreement other than pursuant to the terms set forth in Section 16. Manager shall not provide services contemplated by this
Section 2.5 to the extent that the provision of services by Manager would violate any applicable law.
2.6 Insurance.
Manager shall arrange for the purchase by Provider, at Provider’s cost and expense, of reasonable insurance coverage for Provider
providing coverage in reasonable amounts from established and reputable insurers, including but not limited to directors and officers
liability insurance, workers compensation insurance and a policy or policies of professional liability insurance providing coverage for
Provider and its Licensed Personnel.
2.7 Assets,
Equipment and Supplies: Computer and Information Technology Systems.
(a) Assets,
Equipment and Supplies. Manager in consultation with Provider shall select, purchase, lease, license or otherwise acquire or arrange
for the use of all assets necessary for Provider to provide the Professional Services, including, without limitation, medical, dental,
computer and other equipment, software, supplies, inventory, and other materials and items, in such quantities and at such times as Manager
and Provider shall determine to be adequate or appropriate to provide the Professional Services, except as prohibited by applicable law.
Manager shall consult with Provider to ensure that such assets, equipment and supplies are necessary and appropriate with respect to
the delivery of the Professional Services. Unless otherwise herein specifically provided or prohibited by applicable law, all right,
title and interest to and in such assets, equipment and supplies shall at all times remain with Manager and Provider agrees not to take
any action that would adversely affect Manager’s right or title thereto or interest therein. All of the costs and expenses related
or incident to Manager’s obligations under this Section 2.7 shall be the responsibility of and shall be for the account
of Provider, regardless of whether Manager provides such assets or procures such assets on Provider’s behalf. Manager’s provision
of the assets, equipment and supplies to Provider shall in no way impair, limit, restrict or interfere with Provider’s full and
independent professional judgment and responsibility to patients or require the Provider to act in a manner which violates the professional
standards for dentistry. Furthermore, material or equipment necessary for the Provider to engage in the practice of dentistry as defined
by Minn. Stat. 150A.05 that only a licensed dentist may lawfully select, purchase, lease, license or otherwise acquire or arrange for
the use of under applicable federal and state law, will be subject to Provider’s approval consistent with this Agreement and not
to be unreasonably withheld, and subject to Provider’s ownership and control once so approved.
(b) Computer
Systems. Without limiting the generality of the provisions of Section 2.7(a) above, Manager shall provide Provider
with computer hardware and software. Manager may determine from time to time that said hardware and software requires upgrading or replacement,
the cost of which shall be the responsibility of Manager. All computer software, including, without limitation, such upgrades, shall
remain the property of Manager during the Term of this Agreement and shall be returned to Manager upon termination hereof, subject to
any applicable licensor approvals. Provider is hereby granted a non-exclusive right to use said software during the Term of this Agreement
and Manager will ensure any applicable licensors consent to such right to the extent contractually required by the licensor. The computer
hardware, including, without limitation, any upgrades, provided to Provider may be retained by Provider following termination of this
Agreement.
2.8 Accounting.
Manager shall establish and administer bookkeeping and accounting procedures and controls and systems for the development, preparation,
and keeping of records and books of accounting related to the business and financial affairs of Provider.
2.9 Tax
Matters; Corporate Filings. Manager shall on Provider’s behalf and at Provider’s expense, prepare and file, or cause
to be prepared and filed by qualified professionals, the annual report, tax reports and tax returns required to be filed by Provider.
All amounts payable with respect to any of such taxes shall be the responsibility of and shall be for the account of Provider.
2.10
Budgets. Manager in consultation with Provider shall prepare for review by Provider all capital and annual operating budgets.
2.11
Expenditures. Manager shall manage all cash receipts and disbursements of Provider, including, without limitation, the payment
on behalf of Provider of all payroll and income taxes, assessments, licensing fees and other fees of any nature whatsoever in connection
with its operation as the same become due and payable, unless payment thereof is being contested in good faith by Provider.
2.12
Practice Offices. Other than those locations of Provider set forth on Exhibit A, for which Provider shall maintain
direct responsibility and expense for securing practice space, Manager will, at Provider’s cost and expense, provide or otherwise
arrange for the provision to Provider of dental practice space (the “Practice Space”) for such days and times as reasonably
deemed necessary by Provider for Provider’s use and control consistent with this Agreement. Provider shall use and occupy such
Practice Space solely in connection with the business of Provider and the provision of Professional Services during Provider’s
normal business hours as may be determined to be appropriate by Provider and Manager from time to time. Provider acknowledges that if
permitted by applicable law, Manager may lease one or more Practice Space locations from a third party pursuant to the terms of a lease
or similar agreement or document (each, a “Lease”). Provider shall: (a) not do anything which would constitute
a breach of the terms and conditions of any Lease; (b) be bound by all provisions of each Lease, including without limitation, any
terms relating to the termination of such Lease(s); (c) not sublet or assign the entirety or any part of a Practice Space, or permit
its use by others for any purpose unless Manager gives Provider its prior written consent, which consent may be withheld by Manager in
Manager’s sole discretion; (d) not pledge, loan, create a security interest in, or abandon possession of, a Practice Space;
(e) not attempt to dispose of any Practice Space or any part of it; or (f) not permit any liens, attachments, charge, or other
judicial process to be incurred or levied on any Practice Space or any part thereof. Provider and Manager shall comply with all applicable
regulations and laws (including without limitation, rules and regulations relating to the practice of dentistry and applicable zoning
regulations). Provider further covenants and agrees that Manager and its agents shall have reasonable access to all Practice Space at
any time for purposes of inspection. Provider shall immediately notify Manager of any damage or loss to person or property at or in a
Practice Space. Manager shall amend Exhibit A from time to time to correspond with the assignment, if any, of Leases from
Provider to Manager.
2.13
Licenses. Manager shall apply for and use its reasonable efforts to obtain and maintain in the name and at the expense of Provider
all reasonable and necessary licenses, permits, certificates and Medicare, Medicaid and third party payor provider numbers required or
appropriate in connection with Provider’s provision of Professional Services.
2.14
Agency. Subject to Section 2.2 hereof, Manager shall have
access to Provider’s bank account(s) solely for the purposes stated herein and shall use all funds on deposit therein in accordance
with the terms of this Agreement. Provider hereby appoints Manager as Provider’s true and lawful agent throughout the Term, as
hereinafter defined, and Manager hereby accepts such appointment, to make withdrawals from Provider’s account for payments specified
in this Agreement.
2.15
Litigation Management. Manager shall, at the expense of Provider, (a) assist Provider in the management and defense of all
claims, actions, proceedings or investigations against Provider or any of its officers, directors, employees or agents in their capacity
as such, and (b) assist Provider in the management and direction of all claims, actions, proceedings or investigations brought by
Provider against any person other than Manager or Holder. Manager shall promptly notify Provider of all material legal actions filed
on behalf of or (as Manager becomes aware thereof) against Provider. Manager shall not, except with the consent of Provider, enter into
any settlement or consent to entry of any judgment that (x) imposes any injunctive relief or other equitable relief against, or
alleges that a criminal act was committed by, Provider or Holder or imposes any monetary damages as to which Holder will not be indemnified
in full hereunder, or (y) does not include as a term thereof the giving by the Person(s) asserting such claim (or counterclaim)
to Provider and Holder of a release from all liability with respect to such claim. Notwithstanding the foregoing, Manager shall not exercise
any rights described in clauses (a)-(b) of this Section 2.16 if the matter (i) is a claim seeking non-monetary
relief, (ii) involves criminal or quasi-criminal allegations or regulatory matters, (iii) involves a claim that, if adversely
determined, would be reasonably expected to be materially adverse to the reputation of Holder, or (vi) is a third-party claim being
made by a governmental authority. If Manager exercises any rights described in clauses (a)-(b) of this Section 2.16
in accordance with this Section2.16, Provider and Holder, at their sole cost and expense, shall have the right to participate
in the defense of such third-party claim with counsel selected by it, subject to Manager’s rights described in clauses (a)-(b) of
this Section 2.16, and the fees and disbursements of such counsel shall be at the expense of Provider.
2.16
Policies. Manager shall develop, provide and revise, in consultation with and upon approval of Provider, all necessary policies
and operating procedures pertaining to Provider’s business operations (the “Policies”). Upon request of Provider,
Manager shall assist Provider in Provider’s development and implementation of clinical practice guidelines. Nothing in this Section 2.16
shall be construed to give Manager any control or influence over the practice of dentistry by Provider or any of the Dentists employed
or engaged by Provider.
2.17
Training. Manager shall furnish training services to Provider with respect to all non-clinical aspects of the operations of Provider
(other than matters related to clinical decision-making), including, without limitation, administrative, financial, billing, compliance
and equipment maintenance matters, provided that such training does not interfere with Provider’s independent professional judgment
or require the Provider to act in a manner which violates the professional standards for dentistry.
2.18
Quality Assurance and Utilization Management. Manager agrees to develop for Provider’s approval, and to implement for Provider,
a quality assurance and improvement and utilization management program in accordance with recommendations made to Provider or as required
by law or any third-party payor. Provider shall cause Dentists to participate in the development of such programs and to comply with
the standards, protocols or practice guidelines established thereby, provided that such programs do not interfere with Provider’s
independent professional judgment or require the Provider to act in a manner which violates the professional standards for dentistry.
2.19
Compliance. Manager shall assist Provider to operate in compliance with all laws and develop a comprehensive corporate compliance
plan for Provider and implement same. Manager shall assist Provider in establishing a culture that fosters the prevention, detection
and resolution of instances of misconduct. Manager shall provide reasonably necessary compliance training to Provider Dentists and Licensed
Personnel. Manager shall ensure compliance with the corporate compliance plan by the Non-Dentist Personnel.
2.20
Patient Dental Records. Manager shall assist Provider in the completion, maintenance and storage of patient dental records, including
by providing Provider Dentists with the administrative support necessary to complete dental records and periodically reviewing dental
records to confirm completeness. With regard to the privacy of medical (and dental) records, Manager shall, in consultation with and
the approval of Provider, establish plans, policies and/or procedures that comply with the Health Insurance Portability and Accountability
Act of 1996 and regulations promulgated thereunder, as the same may be from time to time amended (“HIPAA”), including
the Standards for Privacy of Individually Identifiable Health Information, the Security Standards for the Protection of Electronic Protected
Health Information and the Standards for Electronic Transactions and Code Sets promulgated pursuant to HIPAA and any laws of any state
where Provider conducts business relating to patient privacy and/or the security, use or disclosure of health care records.
2.21
Disclaimer. To the extent Manager provides Provider with equipment or Offices, Provider acknowledges that Manager is not the manufacturer
of the Equipment or the manufacturer’s agent or the developer, architect or owner of the Offices and Manager will “pass-through”
to Provider any applicable warranties of the manufacturer. ACCORDINGLY, PROVIDER HEREBY AGREES TO TAKE THE OFFICES, IF ANY, AND
EQUIPMENT, IF ANY, IN AN “AS IS” CONDITION. MANAGER HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EITHER
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE EQUIPMENT OR THE OFFICES, INCLUDING WITHOUT LIMITATION, THE DESIGN
OR CONDITION OF THE OFFICES AND THE EQUIPMENT AND THE OFFICES AND THE EQUIPMENT’S MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP, OR AS TO PATENT INFRINGEMENT OR THE LIKE.
2.22
Use of Third Parties, Affiliates and Subsidiaries. In connection with Manager’s provision of any management, administrative,
business, billing and other services described in this Agreement, Provider hereby authorizes Manager to furnish personnel employed by
third parties or any affiliates or subsidiaries of Manager, or otherwise arrange for the provision of such services through third parties
or any affiliates or subsidiaries of Manager in connection with the provision of such services, in Manager’s sole discretion.
3. Professional
Control Retained by Provider. Provider shall be responsible for and shall have complete authority, supervision
and control over its provision of Professional Services, exercise of independent professional judgment, and compliance with the professional
standards for dentistry. Any purported delegation of authority by Provider to Manager that would require or permit Manager to engage
in the practice of dentistry, interfere with Provider’s independent professional judgment, require the Provider to act in a manner
which violates the professional standards for dentistry, or provide Professional Services shall be prohibited and deemed ineffective,
as Provider shall have the sole authority, management and control with respect to such matters. Manager shall not be required or permitted
to engage in, and Provider shall not request Manager to engage in, activities that constitute the practice of dentistry in jurisdictions
in which Provider furnishes dental care. To the extent that any services to be provided by Manager hereunder would otherwise exceed the
scope of services that an administrative service organization may lawfully provide pursuant to applicable law, this Agreement shall automatically
be amended to remove the offending term(s). Manager shall not direct, control, influence, restrict or interfere with the exercise of
independent clinical, dental or professional judgment by Provider or any Dentist or other Licensed Personnel employed or engaged by Provider
in providing Professional Services. In furtherance thereof, Manager shall not engage in any activity that involves the unlicensed practice
of dentistry, including but not limited to the following:
3.1 assignment
of Dentists to treat patients;
3.2 assumption
of responsibility for the care of patients, including the treatment options available;
3.3 determining
what diagnostic tests or treatments are appropriate for a particular condition;
3.4 determining
the need for referrals to or consultation with another dentist/specialist;
3.5 determining
the type, extent, availability, or quality of dental or other dental services;
3.6 determining
the type of dental materials available, prescribed, or dispensed;
3.7 controlling
the volume of patients;
3.8 determining
fee schedules for dental services and materials, and the establishment thereof, including billing methods;
3.9 controlling
information disseminated to the public regarding dental services;
3.10
diagnosing, treating, prescribing, or operating for any disease, pain, deformity,
deficiency, injury, or physical condition of the human tooth, teeth, alveolar process, gums or jaw, or adjacent or associated structures
and
3.11
any activity that involves the practice of dentistry and the provision of professional
dental services under applicable legal requirements or that would cause Manager to be subject to licensure under the applicable state
laws and regulations.
4. No
Inducement: No Income Guarantee. Manager and Provider agree that they have reached agreement regarding the terms and conditions
of this Agreement in accordance with a good faith determination of the fair market value thereof. Manager shall neither have nor exercise
any control or direction over the number, type, or recipient of patient referrals and nothing in this Agreement shall be construed as
directing or influencing such referrals. Nothing in this Agreement is to be construed to restrict the professional judgment of Provider
or any Dentist to use any facility where necessary or desirable in order to provide proper and appropriate treatment or care to a patient
or to comply with a patient’s wishes. No part of this Agreement shall be construed to induce, encourage, solicit or reimburse
the referral of any patients or business. The Parties acknowledge that neither this Agreement nor any other agreement between the Parties
requires or encourages the referral of patients to one another or any of their respective affiliates. Each Party represents and warrants
to the other that no payment made under this Agreement shall be in return for the referral of patients or business. Furthermore, Manager
has not guaranteed to Provider that the arrangements contemplated hereunder will guarantee any amount of income to Provider.
5. Relationship
of the Parties. The Parties expressly understand and agree that nothing contained in this Agreement shall be construed to create
a joint venture, partnership, association or other affiliation or like relationship between the Parties, it being specifically agreed
that their relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement.
The Parties agree that their respective employees shall not have any claim under this Agreement or otherwise against the other Party
or any of the other Party’s affiliates for vacation pay, paid sick leave, retirement benefits, social security, workers’
compensation, health, disability, professional malpractice or unemployment insurance benefits or other employment benefits of any kind.
6. Responsibilities
of Provider.
6.1 Dentists
and Licensed Personnel. Provider shall have the authority to engage (whether as employees or as independent contractors), manage,
control, promote, discipline, suspend and terminate the services of Dentists and, to the extent required by applicable law, other Licensed
Personnel, provided however, Provider shall retain that number of Dentists and other Licensed Personnel as are reasonably necessary and
appropriate for the provision of the Professional Services as mutually agreed on by Manager and Provider. Provider shall establish salary
and fringe benefits for Dentists in consultation with Manager and consistent with prior budget planning. Manager shall establish salary
and fringe benefits for other non-Licensed Personnel in consultation with Provider. Nothing contained herein shall limit Provider’s
duty and obligation to control all aspects of the practice of dentistry, including, without limitation, clinical training and clinical
supervision of the Dentists, Licensed Personnel, and the care and safety of patients. Manager shall neither control, manage, nor direct
any Dentist or other Licensed Personnel in the performance of Professional Services. Notwithstanding the foregoing, Manager shall have
the ability, as part of the Services, to develop guidelines, subject to Provider’s review and approval, for the hiring or retention
of Dentists and Provider covenants to hire or retain as well as terminate Dentists in accordance with such guidelines. With the assistance
of Manager, Provider shall establish work schedules for all Dentists necessary to ensure adequate coverage; provided that Manager shall
control all decisions relating to Non-Dentist Personnel. Provider shall have full responsibility for and shall supervise, manage and
control all dental services provided by Non-Dentist Personnel.
6.2 Licenses,
Certifications, Standards of Care. Provider shall require each Dentist and Licensed Personnel employed or engaged by Provider to
(a) maintain without restriction all licenses, certifications, registrations and professional liability insurance necessary to provide
the Professional Services; (b) perform all Professional Services in accordance with all laws and with prevailing and applicable
standards of care and professional standards for dentistry, and in accordance with the Policies (subject to the exercise of independent
professional judgment in accordance with Section 3 herein); and (c) maintain his or her skills through continuing education
and training.
6.3 Peer
Review. Provider shall implement appropriate peer review and corrective action procedures for the Dentists and Licensed Personnel
employed or engaged by Provider. Provider shall provide Manager with prompt notice of any complaints relating to any Dentists or Licensed
Personnel arising out of the Professional Services rendered.
6.4 Actions
Requiring Manager’s Approval. Notwithstanding anything herein to the contrary, Provider delegates to Manager the following
actions, and consistent with such delegation agrees that Provider shall not take any such action without the prior written approval of
Manager:
(a) the
issuance of, or agreement to issue, equity of Provider or of any security convertible into Provider equity;
(b) the
payment of any dividends on Provider’s equity or other distribution to Holder;
(c) any
sale, assignment, pledge, lease, exchange, transfer or other disposition, including, without limitation, a mortgage or other security
device, of assets or leases, including Provider’s accounts receivable;
(d) any
purchase or other acquisition of assets at any aggregate cost to Provider exceeding Five Thousand Dollars ($5,000);
(e) any
incurrence of loans or other indebtedness by Provider, or any grant of a lien, security interest or other encumbrance on the assets of
Provider;
(f) any
reclassification or recapitalization of equity of Provider;
(g) any
redemption or purchase of any equity of Provider;
(h) any
amendment to the governing documents of Provider;
(i) the
dissolution or liquidation of Provider;
(j) the
entering into of any contract by Provider committing Provider to incur more than Five Thousand Dollars ($5,000) in expenses on an annual
basis (in addition to complying with any internal approval processes in respect of cash expenditures or otherwise); and
(k) the
creation or any indebtedness or any other obligation of Provider to Holder.
Notwithstanding
anything to the contrary contained herein, Manager acknowledges and consents to the existing financing relationship (the “Financing”)
provided by U.S. Bank National Association, a national banking association (the “Lender”), to the Provider and the
Manager, among others, and no further consent or approval is required from the Manager in connection with any aspect of the Financing.
6.5 Continuing
Education. Provider shall ensure that each Dentist and Licensed Personnel shall obtain the required continuing professional education
for his or her specialty in each state where such Dentist or Licensed Personnel provide professional services and shall provide documentation
of the same to Manager.
6.6 Disciplinary
Actions. Provider shall, and shall require each of its Dentists or Licensed Personnel to, disclose to Manager during the term of
this Agreement: (a) the existence of any proceeding instituted by any plaintiff, governmental agency, health care facility, peer
review organization or professional society which involves any allegation of substandard care, mistake, negligence or professional misconduct
raised against any Dentist, (b) the existence of any administrative process or other proceeding pursuant to which the credentialed
status of any Dentist may be revoked or restricted, and (c) the exclusion of any Dentist, Licensed Personnel or Provider from participation
in any federal or state health care program or any third-party payor’s provider network.
6.7 Outside
Activities. Provider and its Dentists shall devote their best efforts to fulfill their obligations hereunder. Provider and its Dentists
shall not engage in any other professional activity, whether or not such business activity is pursued for gain, profit, or other pecuniary
advantage, which would interfere with the performance of Provider’s duties hereunder, without the prior written consent of Manager,
which consent shall not be unreasonably withheld.
7. Compliance.
The parties agree to cooperate with one another in the fulfillment of their respective obligations under this Agreement, and to comply
with the requirements of law and with all ordinances, statutes, regulations, directives, orders, or other lawful enactments or pronouncements
of any federal, state, municipal, local or other lawful authority applicable to Provider or Manager.
8. Payments
and Fees.
8.1 Management
Fee. As compensation for the Services provided by Manager under this Agreement, Provider shall pay to Manager a Management Fee as
set forth in Exhibit B. Manager shall withdraw the Management Fee for each full or partial month of Services provided during
the Term from Provider’s bank account on the 15th day of each following month. Manager shall furnish Provider with a monthly statement
detailing the Management Fee and all expenses and compensation due to Manager for the immediately preceding month.
8.2 Re-Negotiation
of Management Fee. Commencing on the Effective Date, the Management Fee shall increase automatically by [******************] annually,
unless otherwise agreed upon in writing by the parties. Notwithstanding the foregoing, either Provider or Manager may request that the
Management Fee be renegotiated every six (6) months (“Renewal Date”) starting from the six-month anniversary
of the Effective Date. Either Provider or Manager may provide notice of its desire to renegotiate the Management Fee by sending written
notice to the other Party setting forth its intent to renegotiate the Management Fee. Upon a Party’s receipt of a written notice
from the other Party to renegotiate the Management Fee, the Parties shall have a period of thirty (30) days after the Renewal Date in
which to negotiate in good faith an adjustment to the Management Fee. If the Parties agree on a new Management Fee, Exhibit B
shall be revised to reflect the revised Management Fee. However, if the Parties are unable to reach a mutual agreement in writing of
a renegotiated Management Fee by the expiration of such thirty (30) day period, the existing Management Fee will remain in place.
8.3 Reimbursement
of Costs and Expenses. In addition to the Management Fee, Manager shall be entitled to full reimbursement (without mark-up) for all
costs, expenses and liabilities paid or satisfied by Manager in connection with its provision of Services under this Agreement or otherwise
arising out of the operation, ownership or maintenance of the business of Provider, including, without limitation, expenses incurred
by Manager pursuant to Leases for Practice Space entered into by Manager or assigned by Provider to Manager. Manager shall submit an
invoice to Provider for all such costs and expenses. Each such invoice shall state with reasonable detail the costs and expenses that
were incurred by Manager.
8.4 Assignment
to Manager. To the extent permitted by applicable law and payor contractual provisions, Provider assigns to Manager all of Provider’s
rights and interests in all revenues of Provider such that all revenues of Provider shall be paid to and collected by Manager during
the Term of this Agreement; provided, however, that no assignment shall be made of any such rights or interests, the assignment of which
is prohibited by law (for example, amounts receivable from state and federal health care programs (e.g., Medicare, Medicaid or TRICARE)).
Provider hereby issues a standing instruction, which it shall confirm upon written request from time to time, that all payments (excluding,
however, state and federal health care program payments) due to Provider shall be remitted directly to Manager as its agent and attorney-in-fact
hereunder.
8.5 Application
of Payments. Provider hereby directs Manager to apply Provider’s revenues monthly for the following purposes, in the order
of priority set forth below:
(a) to
pay any refunds or other amounts owed to patients or third party payors as reasonably approved by Provider;
(b) to
pay all cumulative direct costs and expenses of operating Provider’s business, including, without limitation, insurance premiums,
payroll and benefits for Provider employees, marketing expenses, supply expenses, equipment purchase and lease expenses, auditing and
tax preparation fees and fees of professional advisors, such as attorneys;
(c) to
pay all cumulative direct or indirect expenses incurred by Manager (including, without limitation, an allocable percentage of Manager’s
corporate overhead) in providing the Services, including, without limitation, expenses relating to the Billing and Collection Services,
and in carrying out its duties hereunder on behalf of Provider; and
(d) to
pay Manager the Management Fee.
8.6 Evaluation
of Reasonableness. The Management Fee reflects the fair market value of Manager’s Services. Payment of the Management Fee is
not intended to be and shall not be interpreted or applied as permitting Manager to share in Provider’s fees for the Professional
Services, and is acknowledged as the Parties’ negotiated agreement as to the reasonable fair market value of the Services furnished
by Manager pursuant to this Agreement and related agreements, considering the nature and extent of the Services required and the investment
made by Manager.
8.7 Default.
Any failure by Provider to pay any amounts due hereunder shall constitute a default hereunder (a “Default”). Upon
the occurrence of a Default, in addition to all rights and remedies set forth in this Agreement, Manager may exercise from time to time
any rights and remedies available to it by law or in equity, including the rights and remedies set forth in the Uniform Commercial Code
as in effect from time to time in the jurisdictions in which Provider furnishes dental care.
9. Required
Notices.
9.1 Provider
will give notice to Manager promptly upon becoming aware of the occurrence of the following:
(a) the
commencement of a case or proceeding against Provider or any Dentist seeking a decree or order in respect of Provider (i) under
Title 11 of the United States Code, as now constituted or hereafter amended or any other applicable federal, state or foreign bankruptcy
or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official)
for Provider or of any substantial part of any such Person’s assets, or (iii) ordering the winding-up or liquidation of the
affairs of Provider, and such case or proceeding shall remain undismissed or unstayed for sixty (60) days or more or such court shall
enter a decree or order granting the relief sought in such case or proceeding;
(b) (i) the
filing of a petition seeking relief under Title 7 or 11 of the United States Code, as now constituted or hereafter amended, or any other
applicable federal, state or foreign bankruptcy or other similar law by Provider, (ii) the failure to contest in a timely and appropriate
manner or consenting to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of Provider, or of any substantial
part of any such Person’s assets, (iii) the making of an assignment for the benefit of creditors by or on behalf of Provider,
(iv) the taking of any company action in furtherance of any of the foregoing by Provider; or (v) the admission in writing of
its inability to, or shall be generally unable to, pay its debts as such debts become due by Provider;
(c) the
loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by Provider;
(d) the
commencement of any proceeding before any governmental authority seeking a determination that this Agreement or the Equity Transfer Restriction
Agreement, substantially in the form set forth on Exhibit C, dated of even date herewith, by and between Provider and Holder
(the “Equity Transfer Restriction Agreement”) and together with this Agreement, the “Management Services
Documents”, pertaining or related to Provider is invalid or unenforceable;
(e) the
occurrence of any damage to, or loss, theft or destruction of, any material assets of Provider, or any strike, lockout, labor dispute,
embargo, condemnation, pandemic, declared governmental emergency, act of God or public enemy, or other casualty, or any order or injunction
of any court or any administrative or regulatory agency which in any of the foregoing cases causes, for more than five (5) consecutive
business days, the cessation or substantial curtailment of revenue producing activities of Provider if such event or circumstance is
not covered by business interruption insurance;
(f) any
breach or default by Provider under any Management Services Documents to which it is a party or under any agreement, document or instrument
to which it is a party evidencing indebtedness or an amount due in excess of $500,000;
(g) the
failure of the shares of Provider to be subject to the Equity Transfer Restriction Agreement;
(h) the
commencement of any litigation or proceeding against Provider or Holder that (i) seeks damages in excess of $50,000, (ii) seeks
injunctive relief, or (iii) alleges criminal misconduct by Provider, Manager and any of their respective affiliates; or
(i) the
attachment, seizure, levy or becoming subject to a writ or distress warrant of assets with a fair market value of $50,000 or more in
the aggregate of Provider or such assets coming within the possession of any receiver, trustee, custodian or assignee for the benefit
of creditors of Provider and such condition continues for ten (10) days or more.
10. Term
and Termination.
10.1
Term. This Agreement shall have an initial term commencing as of the Effective
Date and continuing in full force and effect for thirty (30) years (the “Initial Term”) and shall renew automatically
for additional five (5) year terms thereafter, unless terminated as provided herein (the Initial Term and any subsequent terms shall
be referred to as the “Term”).
10.2
Termination By Manager Without Cause. Manager may terminate this Agreement at
any time without cause upon sixty (60) days advance written notice to Provider.
10.3
Immediate Termination By Manager. Manager shall have the right, but not the obligation, to terminate this Agreement immediately
upon notice to Provider of any of the following events:
(a) the
cancellation or non-renewal of the professional or malpractice insurance of Provider or any employee of Provider;
(b) the
dissolution of Provider;
(c) the
suspension or exclusion of Provider or any employee of Provider from any state or federal health care program (e.g., Medicare, Medicaid
or TRICARE);
(d) the
date upon which any of the stock in Provider held is transferred or attempted to be transferred voluntarily, by operation of law or otherwise,
to any person without the prior approval of Manager;
(e) the
merger, consolidation, reorganization, sale, liquidation, dissolution, or other disposition of all or substantially all of the stock
or assets of Provider without the prior written approval of Manager;
(f) failure
of Provider to pay the Management Fee in the time frames set forth in Article 8 hereof; or
(g) Provider’s
breach of any provision of Article 12 herein.
10.4
Immediate Termination By Provider. Provider shall have the right, but not the obligation, to terminate this Agreement immediately
upon notice to Manager of the suspension or exclusion of Manager or any of Manager’s Affiliates from any state or federal health
care program (e.g., Medicare, Medicaid or TRICARE), or if the Manager or any of Manager’s Affiliates is convicted of, or pleaded
guilty or nolo contendere to any crime listed in 42 U.S.C. § 1320a-7 and such person remains affiliated with Manager in any capacity
for thirty (30) days after written notice of such event. For purposes of this Section, Manager’s Affiliates means any person or
entity that directly or indirectly through one or more intermediaries controls Manager or any person or entity that directly or indirectly,
beneficially owns at least fifty percent (50%) of Manager’s outstanding equity securities.
10.5
Termination By Either Party. This Agreement may be terminated as follows:
(a) by
mutual written agreement of the Parties;
(b) by
either Party immediately upon the filing of a petition in bankruptcy or the insolvency of the other Party that is not discharged or dismissed
within ninety (90) days of such filing;
(c) by
either Party upon a material breach of a provision hereof by the other Party, provided that such breach continues for a period of thirty
(30) days after written notice thereof, which shall set forth with particularity the reason(s) for such breach) has been given by
the non-breaching Party to the other Party; or
(d) by
either Party as specifically herein provided.
10.6
Termination Obligations. In the event of termination or expiration of this Agreement, Provider shall pay all Management Fees and
costs and expenses owing to Manager hereof up through and including the date of termination or expiration. In the event of termination
or expiration of this Agreement, Manager will, upon request by Provider, immediately provide Provider a hard copy and electronic copy,
of all Provider-related billing, collection, accounts receivable, financial, personnel, and practice management data and information
maintained by Manager in electronic form. Furthermore, after termination or expiration of this Agreement, the Parties shall reasonably
cooperate with one another, and provide each other access to such books, records and information as either party may reasonably request,
for purposes of defending against any subpoena, government or third-party payor investigation, audit, or any lawsuit or proceeding instituted
by any third party and relating to any alleged or actual acts or omissions of either Party during the term of this Agreement, or for
any other legitimate purpose.
10.7
Effect of Termination. In the event of termination or expiration of this Agreement, Provider shall no longer have any right to
the equipment, supplies, personnel and Services provided by Manager hereunder and Provider shall no longer have the right to use or otherwise
benefit from the Confidential Information (as such term is defined in Section 12.2 herein) in any form or fashion. Subject
to Section 10.5 and Section 11.4, Provider shall immediately return to Manager any equipment, records and other
items provided hereunder (including all copies thereof) and cease using any of the Confidential Information. In the event of termination
under this Article 10, the Parties will not enter into another agreement for the Services on materially different financial
terms prior to the one (1) year anniversary of the Effective Date. No damages shall be owed or paid by one Party to the other Party
in connection with a termination of this Agreement.
11. Records
And Record Keeping.
11.1
Access to Information. Provider hereby authorizes and grants to Manager full
and complete access to all information, instruments and documents relating to Provider that may be reasonably requested by Manager to
perform its obligations hereunder, and shall disclose and make available to representatives of Manager for review and photocopying all
relevant books, agreements, papers and records of Provider. Provider shall, at all times during the Term and at all times thereafter,
make available to Manager for inspection by its authorized representatives, during regular business hours, at the principal place of
business of Provider, any Provider records determined by Manager to be necessary to perform the Services and carry out its responsibilities
hereunder or necessary for the defense of any legal or administrative action or claim relating to said records.
11.2
Manager’s Records and Systems. At all times during and after the Term of
this Agreement, all business records and information, including, without limitation, all books of account and general administrative
records and all information generated under or contained in the management information system pertaining to Provider, relating to the
business and activities of Manager, shall be and remain the sole property of Manager. Provider acknowledges that Manager is the sole
owner of any proprietary electronic records systems/software and that Provider shall have no license or other right to copy, use, or
transfer any rights to such systems/software, except for the right of access to the patient medical and dental records as set forth herein
as required by law and as necessary to provide the Professional Services.
11.3
Confidentiality of Records. Manager and Provider will adopt procedures to assure the confidentiality of the records relating to
the operations of Manager and Provider, including, without limitation, all statistical, financial and personnel data related to the operations
of Manager and Provider that is not otherwise available to third parties publicly or by law.
11.4
Maintenance, Retention and Storage of Records. Manager’s Services shall include oversight of the maintenance and storage
of all patient dental records of Provider in its possession in accordance with applicable law. Manager shall maintain electronic copies
of patient dental records for a minimum of seven (7) years from the last date of service to the patient, and longer if required
by law, required by any third party payor or necessary to protect the interests of Provider. Provider shall have access to all patient
medical and dental records as necessary to defend against any subpoena, government or third-party payor investigation, audit, or any
lawsuit or proceeding instituted by any third party and relating to any alleged or actual acts or omissions of Provider, or for any other
legitimate purpose. Following the termination of this Agreement for any reason, Manager will return in electronic format all patient
medical and dental records to Provider.
11.5
Privacy and Security of Patient Records. The Parties agree to discharge their respective duties hereunder in accordance with the
applicable provisions of HIPAA and all applicable state and federal laws governing the privacy and security of dental records. In furtherance
of the foregoing, the Parties shall execute the HIPAA Business Associate Agreement attached hereto as Exhibit D.
12. Protective
Covenants.
12.1
Confidential Information. The Parties expressly acknowledge that, pursuant
to this Agreement, each Party and its respective officers, directors, employees, agents and contractors will be given access to, and
be provided with, business methods, trade secrets and other proprietary information of the other Party in connection with their respective
duties and activities. Each Party expressly acknowledges and agrees that Confidential Information, as defined below in Section 12.2,
is proprietary and confidential and if any of the Confidential Information was imparted to or became known by any persons engaging in
a business in any way competitive with that of the other Party, including, without limitation, the Party receiving Confidential Information
and its officers, directors, employees, agents and contractors, such disclosure would result in hardship, loss, irreparable injury and
damage to the non-disclosing Party, the measurement of which would be difficult, if not impossible, to determine. Accordingly, each Party
expressly agrees that the other Party has a legitimate interest in protecting the Confidential Information and its business goodwill,
that it is necessary for each Party to protect its business from such hardship, loss, irreparable injury and damage, that the following
covenants are a reasonable means by which to accomplish those purposes, and that violation of any of the protective covenants contained
herein shall constitute a breach of trust and is grounds for immediate termination of the Agreement and for appropriate legal action
for damages, enforcement and/or injunction.
12.2
Trade Secrets, Proprietary and Confidential Information. For purposes of this
Agreement, “Confidential Information” is information obtained by a Party from or regarding the other Party and includes,
without limitation: (a) lists containing the names of past, present and prospective clients, patients, or suppliers; (b) the
past, present and prospective methods, procedures and techniques utilized in identifying prospective clients or patients and in soliciting
the business thereof; (c) the past, present and prospective methods, procedures and techniques used in the operation of the Party’s
business, including, without limitation, the methods, procedures and techniques utilized in marketing, provision of services and pricing;
(d) compilations of information, records and processes which are owned by a Party and/or which are used in the operation of the
Party’s business; and (e) any information directly or indirectly obtained pursuant to this Agreement; provided, however, that
(i) Confidential Information shall in no event include Confidential Information (A) which was generally available to the public
at the time of disclosure by the Party or (B) which becomes publicly available other than as a consequence of the breach by the
Party of the Party’s confidentiality obligations hereunder, and (ii) disclosure or release of such Confidential Information
shall not be a breach of this Agreement if a court of competent jurisdiction orders its disclosure or release.
12.3 Restrictive
Covenants.
(a) Non-Competition.
Provider hereby irrevocably appoints Manager as its agent and attorney-in-fact during the term of this Agreement with full power
and authority to enforce the terms of any employment or independent contractor agreements to which it is a party and any noncompetition,
confidentiality and similar covenants or restrictions of which it is the beneficiary. Provider will require its Dentists to execute a
document confirming the applicable Dentist’s agreement with such restrictive covenant terms as are approved by Manager. During
the term of this Agreement, Provider and Holder shall not establish, operate or provide dental services at any office, clinic or other
health care facility providing services substantially similar to those provided by Provider pursuant to this Agreement anywhere within
25 miles of any facility operated by Manager without the express written consent of Manager.
(b) Non-Solicitation;
Non-Disparagement; Goodwill. The Parties agree that each shall not, during the Term and for two (2) years following termination
or expiration of this Agreement, for any cause whatsoever, directly or indirectly, take any action that constitutes, results or may reasonably
be expected to result in: (a) soliciting, diverting or interfering with any relationship that either Party or any of its affiliates
has with any patients, dental care providers or suppliers; (b) soliciting the termination of, or diverting or interfering with any
relationship that either Party has with any person or entity affiliated with it or any of its affiliates as an independent contractor,
supplier or provider; (c) entering into any agreement, the purpose of which would violate this Section 12.3; (d) soliciting,
inducing or encouraging any individual employed or engaged by or affiliated with the other Party or any of its affiliates (presently
or in the then most recent twelve (12) month period) to curtail or terminate such affiliation or employment, or take any action that
results in, or might reasonably be expected to result in any employee or contractor ceasing to perform services for the other Party or
its affiliates; or (e) disparaging the other Party or any of its officers, directors, employees or affiliates. The Parties shall
portray each other in a positive light to the general public. Nothing in this Section 12.3 is intended to prohibit ordinary
course employment decisions or the placement of general advertisements for employment, or to prohibit either Party or any of its affiliates
who is a practicing dentist from engaging in the professional practice of dentistry or exercising such person’s independent dental
judgment, without consideration for any pecuniary interests of said dentist, nor to require the referral of any patients for any service
provided by either Party or its affiliates.
12.4
Survival of Protective Covenants. Each covenant herein shall be construed
as an agreement independent of any other provision of this Agreement, unless otherwise indicated herein, and shall survive the termination
of this Agreement, and the existence of any claim or cause of action of either Party against the other Party, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement of such covenant.
12.5
Extension of Restrictive Periods. If a Party violates the protective covenants set forth in this Article 12 and the
aggrieved Party brings legal action for injunctive or other relief hereunder, the aggrieved Party shall not, as a result of the time
involved in obtaining the relief, be deprived of the benefit of the full restrictive periods of the protective covenants contained in
this Article 12. Accordingly, such restrictive periods for the purposes of this Article 12 shall be deemed to
have a duration of the respective time periods stated in this Article 12 computed from the date relief is granted, but reduced
by the time between the period when the restriction began to run and the date of the first violation of the covenant by such Party.
12.6
Specific Performance and Other Remedies. The Parties understand and acknowledge that violation of this Article 12
will cause irreparable harm to the non-violating Party, the exact amount of which will be impossible to ascertain, and for that reason
the Parties agree that a Party shall be entitled to seek, without the necessity of showing any actual damage or posting a bond (unless
required by law), from any court of competent jurisdiction temporary or permanent injunctive relief and/ or specific performance of this
Agreement restraining a Party or any person from any act prohibited by this Article 12. Nothing in this Section 12.6
shall limit a Party’s right to recover any other damages or remedies to which it is entitled as a result of the other Party’s
breach. If any one or more of the provisions of this Article 12 or any word, phrase, clause, sentence or other portion of
this Article 12 shall be held to be unenforceable or invalid for any reason, such provision or portion of provision shall
be modified or deleted in such a manner so as to make this Article 12, as modified, legal and enforceable to the fullest
extent permitted under applicable law.
13. Indemnification.
13.1
Provider Indemnification. Provider hereby agrees to defend, indemnify and hold Manager and its affiliates and their respective
officers, employees, shareholders, successors and assigns (“Manager Indemnified Parties”) harmless from and against
any and all liabilities, causes of action, damages, losses, demands, claims, penalties, judgments, costs and expenses (including, without
limitation, reasonable attorneys’ fees and related costs) of any kind or nature whatsoever (“Losses”) that may
be sustained or suffered by any Manager Indemnified Party in any way caused by or arising from Provider’s gross negligence, fraud
or willful or intentional or negligent misconduct related to its operations, provision of Professional Services or any material breach
by Provider of any of its representations, warranties, covenants, obligations or duties under this Agreement, to the extent such Losses
are not covered by Provider’s insurance.
13.2
Manager Indemnification. Manager hereby agrees to defend, indemnify and hold Provider, Holder and their respective affiliates
and their respective managers, members, officers, employees, shareholders, successors and assigns (“Provider Indemnified Parties”)
harmless from and against any and all Losses that may be sustained or suffered by any Provider Indemnified Party in any way caused by
Manager’s gross negligence, fraud or willful or intentional or negligent misconduct related to its provision of Services or any
material breach by Manager of any of its representations, warranties, covenants, obligations or duties under this Agreement, to the extent
such Losses are not covered by Manager’s insurance.
13.3
Manager Release and Indemnification of Holder.
(a) Manager
hereby waives and releases its right to sue Holder for any claim, right, or cause of action which may arise against Holder, as sole shareholder
or sole member of Provider, pursuant to the terms of this Agreement, as of the Effective Date and up through the end of time except as
otherwise caused by Holder’s fraud or willful or intentional misconduct. In that regard, Manager hereby holds harmless, fully and
forever remises, releases and discharges Holder of and from any and all claims, demands, agreements, contracts, covenants, actions, suits,
causes of action, obligations, controversies, debts, costs, expenses, accounts, damages (whether actual, compensatory, direct, consequential,
or punitive), judgments, losses and liabilities of whatever kind or nature, in law, equity or otherwise whether known or unknown, whether
concealed or hidden, which it may have for or by reason of any matter, cause, or thing whatsoever, from the Effective Date up to the
end of time except as a result of Holder’s fraud or willful or intentional misconduct.
(b) Notwithstanding
the provisions of Section 13.1, Manager hereby agrees to defend, indemnify and hold Holder harmless from and against any
and all Losses that may be sustained or suffered by Holder in connection with Holder’s role as sole member, manager, director,
officer, employee or agent of Provider except as a result of Holder’s fraud or willful or intentional misconduct. Costs and expenses
incurred by the Holder in defense of any litigation giving rise to any such Losses (including attorneys’ fees) shall be paid by
Manager in advance of the final disposition of such litigation upon receipt by Manager of: (i) a written request for payment; (ii) appropriate
documentation evidencing the incurrence, amount, and nature of the costs and expenses for which payment is being sought; and (iii) an
undertaking adequate under applicable law made by or on behalf of Manager to repay the amounts so paid if it shall ultimately be determined
that Holder is not entitled to be indemnified by Manager under this Agreement.
(c) Survival.
The provisions of this Article 13 shall survive the termination of this Agreement for the duration of the applicable
statute of limitation.
14. Exclusivity.
During the Term of this Agreement, Manager shall serve as Provider’s sole and exclusive manager, and Provider shall not engage
any other persons to perform any of the duties or functions that Manager is explicitly required to provide hereunder or that are reasonably
expected to be able to be provided by a manager of a dental care practice.
15. Notices.
All notices, requests, consents, and other communications provided for by this Agreement shall be in writing, shall be addressed to the
receiving Party’s address set forth below or to such other address as a Party may designate by notice hereunder, and shall be either:
(a) delivered by hand, (b) sent by recognized overnight courier, or (c) sent by certified mail, return receipt requested,
postage prepaid to such address as each Party shall provide the other Party from time to time. Notice shall be deemed given (i) upon
delivery, if hand delivered, (ii) on the next business day, if sent next day delivery by a recognized overnight courier, and (iii) if
sent by certified mail, five (5) business days following the day such mailing is made. Any notices provided hereunder shall contemporaneously
be provided to the Lender at the following address: U.S. Bank National Association, U.S. Bank Commercial Banking, 800 Nicollet Mall,
3rd Floor, BC-MN-HO3W, Minneapolis, MN 55402, Attention: Daniel Miller.
16. Entire
Agreement: Amendment. This Agreement, together with the Employment Agreement, dated of even date herewith, by and between Provider
and Holder (the “Employment Agreement”), and that certain Equity Transfer Restriction Agreement contain the entire
agreement between the Parties hereto. In the event of a conflict between the Employment Agreement and this Agreement, then this Agreement
shall preempt the Employment Agreement except with respect to those matters that would reasonably result in Manager engaging in the practice
of or dentistry. No amendment, alteration or modification of this Agreement shall be valid unless in each instance such amendment, alteration
or modification is expressed in a written instrument duly executed in the name of the Party or Parties making such amendment, alteration
or modification and then only upon the prior written consent of the Lender.
17. General.
17.1
Duty to Cooperate. The Parties acknowledge that the Parties’ mutual
cooperation is critical to the ability of Manager to perform successfully and efficiently its duties hereunder. Accordingly, each Party
agrees to cooperate fully with the other in formulating and implementing goals and objectives that are in Provider’s best interest.
17.2 Limited
Renegotiation.
(a) This
Agreement shall be construed to be in accordance with any and all federal and state laws, including, without limitation, laws governing
the state and federal healthcare programs and private third party payors. In the event there is a change in such laws, whether by statute,
regulation, agency or judicial decision or guidance that has any material effect on any term of this Agreement, then the applicable term(s) of
this Agreement shall be subject to renegotiation, and either Party may request renegotiation of the affected term or terms of this Agreement,
upon written notice to the other Party, to remedy such condition.
(b) The
Parties expressly recognize that upon request for renegotiation, each Party has a duty and obligation to the other only to renegotiate
the affected term(s) in good faith and, further, each Party expressly agrees that its consent to proposals submitted by the other
Party during renegotiation efforts shall not be unreasonably withheld provided such proposals would not materially alter the economic
outcome of the Agreement.
17.3
Choice of Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Minnesota,
without regard to the conflict of law’s provisions thereof. The Parties hereby consent to personal jurisdiction and venue in any
action permitted to be brought in court pursuant to this Agreement in the State of Minnesota. Both Provider and Manager expressly waive
any right that either Party has or may have to a jury trial of any dispute arising out of or in any way related to this Agreement or
any breach thereof.
17.4
Waiver of Breach. The waiver by either of the Parties of a breach or violation of any provision of this Agreement shall not operate
as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof.
17.5
Force Majeure. Neither Party shall be liable or be deemed in default of this Agreement for any delay or failure to perform cause
by Acts of God, war, disasters, strikes, pandemics, governmental emergencies or any similar cause beyond the control of either Party.
17.6
Severability. If any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall
not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms.
17.7
Successors and Assigns. This Agreement shall bind each of the Parties and their
respective successors and permitted assignees. Assignment by Provider or Holder of any rights or obligations under this Agreement without
the prior written consent of Manager is expressly prohibited. Manager is permitted to assign this Agreement or any rights or obligations
hereunder to any third party (including any lender or purchaser of Manager) without the prior written consent of Provider or Holder and
any such assignee is an intended third party beneficiary of this Agreement.
17.8
Headings. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this Agreement.
17.9
Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which shall be one and the same document.
17.10
Survival. The provisions of Articles 12 and 13 and such other articles and sections of this Agreement which either expressly
or by their natures survive expiration or other termination of this Agreement shall survive such expiration or other termination of this
Agreement until each such provision expires in accordance with its respective terms.
17.11
Construction. This Agreement has been drafted and negotiated jointly by the Parties, and this Agreement will be construed neither
against nor in favor of either Party.
17.12
Exhibits. Any exhibits attached hereto are an integral part of this Agreement and are incorporated herein by this reference.
[Signature page follows]
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the day and year first above written.
| |
MANAGER: |
| |
|
| |
Park Dental Partners, Inc., a
Minnesota corporation |
| |
|
| |
By: |
/s/
Peter G. Swenson |
| |
Name: |
Peter G. Swenson |
| |
Title: |
Chief Executive Officer |
(Signatures
Continued on Following Page)
Signature
Page to Administrative Resources Agreement
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the day and year first above written.
| |
PROVIDER: |
| |
|
| |
Dental Specialists of Minnesota, PLLC,
a Minnesota professional limited liability company |
| |
|
| |
By: |
/s/
Alan Law |
| |
Name: |
Alan Law, D.D.S., Ph.D |
| |
Title: |
President |
| |
HOLDER: |
| |
|
| |
HOLDER, solely for purposes of Section 1.2(b),
Article 12, Section 13.3 and Article 16 |
| |
|
| |
/s/
Alan Law |
| |
Alan Law, D.D.S., Ph.D, individually |
Signature
Page to Administrative Resources Agreement
EXHIBIT A
PRACTICE LOCATIONS
LEASED DIRECTLY BY PROVIDER
| Location | |
LEASE ID | |
Address | |
City | |
State | |
Zip |
| Blaine South | |
LA0085 TDS-SC Blaine | |
11855 Ulysses Street
NE | |
Blaine | |
MN | |
55434 |
| Chaska South | |
LA0095 TDS-Chaska South | |
111 Hundertmark Road | |
Chaska | |
MN | |
55318 |
| Deephaven | |
LA0076 TDS-Deephaven | |
18258 Minnetonka Blvd, Suite 100 | |
Wayzata | |
MN | |
55391 |
| Downtown Duluth | |
LA0077 TDS-Downtown Duluth | |
324 W. Superior St., Ste 1111 | |
Duluth | |
MN | |
55802 |
| Downtown Minneapolis | |
LA0097 TDS-Downtown Minneapolis | |
825 Nicollet Mall | |
Minneapolis | |
MN | |
55402 |
| Edina | |
LA0078 TDS-Edina | |
6545 France Ave S | |
Edina | |
MN | |
55435 |
| Forest Lake | |
LA0079 TDS-Forest Lake | |
25 No Lake Street, Suite 11 | |
Forest Lake | |
MN | |
55434 |
| Maple Grove | |
LA0091 TDS-Maple Grove New | |
9600 Upland Lane North, Suite 200 | |
Maple Grove | |
MN | |
55369-4496 |
| Monticello | |
LA0081 TDS-Montecello | |
3880 Deegan Ct Suite 100 | |
Monticello | |
MN | |
55362 |
| Riverdale | |
LA0082 TDS-Riverdale | |
3161 Northdale Blvd | |
Coon Rapids | |
MN | |
55433-1825 |
| Rosemount West | |
LA0088 TDS-Rosemount West | |
15031 Crestone Ave. | |
Rosemount | |
MN | |
55068 |
| Roseville | |
LA0083 TDS-Roseville | |
1835 County Road C-West, Suite 220 | |
Roseville | |
MN | |
55113-1835 |
| Sartell | |
LA0084 TDS-Sartell | |
1900 Kruchten Court South | |
Sartell | |
MN | |
56377 |
| Southdale | |
LA0096 TDS-Southdale | |
6545 France Ave. S | |
Edina | |
MN | |
55435 |
| St Paul | |
LA0086 TDS-St Paul | |
2550 University Ave W | |
St Paul | |
MN | |
55114 |
EXHIBIT B
MANAGEMENT FEE
In consideration
of the Services, Provider will pay Manager a monthly management fee (the “Management Fee”) equal to [**********************************]
of Provider’s total Net Collections for the applicable month.
“Net Collections”
means the actual collected cash receipts of Provider, net of patient and payor refunds and adjustments, and net of any payments to third
party collection agencies.
The Management
Fee shall be payable no later than the tenth (10th) day of the month following the month for which it is due. The Management Fee shall
be pro-rated for any partial month during the Term. Manager is expressly authorized to, and shall, disburse from the Master Accounts
all amounts owed by Provider to Manager pursuant to this Agreement in accordance with the provisions of Section 2.1.
The Parties recognize
that Provider may change in size and scope over the term of this Agreement, which may cause the Management Fee, as adjusted, to no longer
reflect the fair market value of the Services provided pursuant to this Agreement; accordingly, the Parties will review the Management
Fee at least annually and make appropriate adjustments as the Parties may mutually agree to ensure that the Management Fee on a go-forward
basis comports with the fair market value of the increased or decreased demand for Management Services based on material changes to the
size and scope of Provider.
EXHIBIT C
EQUITY TRANSFER
RESTRICTION AGREEMENT
EQUITY TRANSFER
RESTRICTION AGREEMENT
This
Equity Transfer Restriction Agreement (this “Agreement”), effective ___________, 2023, is among Dental Specialists
of Minnesota, PLLC, a Minnesota professional limited liability company (the “Company”), Alan Law, D.D.S., Ph.D. (the
“Holder”) and Park Dental Partners, Inc., a Minnesota corporation (“Manager”). The Company,
the Holder and Manager are collectively referred to herein as the “Parties”.
RECITALS
A. The
Holder holds the only outstanding equity interests of the Company (the “Interests”).
B. Manager
and its Affiliates provide certain non-professional management, administrative, advisory and back-office services required to support
the Company’s clinical operations.
C. The
Parties believe that it is in the best interest of the Company to restrict the transferability of the Restricted Securities (as defined
below) to promote the ongoing continuity of the Company for the benefit of the Company’s patients.
AGREEMENT
The Parties hereby agree as
follows:
18. Restrictions
on Transfer. Except as otherwise provided in this Agreement, the Holder may not (voluntarily, involuntarily or by operation of law)
sell, assign, transfer, gift, pledge, hypothecate, encumber or otherwise dispose of (“Transfer”) any of the Interests
currently owned or hereafter acquired by the Holder or any other securities issued in respect thereof (whether by exchange, dividend,
split, reverse split, recapitalization, merger, consolidation or otherwise) (collectively, the “Restricted Securities”).
Any attempted transfer of Restricted Securities in violation of this Agreement will be null and void ab initio.
19. Transfer
of Restricted Securities in Certain Events. If a Transfer Event occurs, then all of the Restricted Securities then-held by the Holder
(or any heir, executor, administrator, personal representative, estate, testamentary beneficiary, donee, trustee in bankruptcy, successor
or assignee of the Holder) will immediately be deemed transferred to the Designated Transferee as of the date of the Transfer Event,
without action by the Holder. With consideration for the best interests of the Company and the continuity of care for its patients, Manager
may specify a future effective date for the transfer of the Restricted Securities to the Designated Transferee and may waive any particular
Transfer Event in its sole discretion; provided, however, that (i) no waiver given will be applicable except in the specific
instance for which it was given and no single waiver will preclude any other or further exercise of Manager’s rights under this
Agreement and (ii) Manager may not waive a Transfer Event occurring on account of the Holder’s disqualification from holding
the Restricted Securities under applicable Law.
19.1
“Transfer Event” means (i) the Holder dies or becomes incompetent or permanently disabled, (ii) the Holder’s
license to practice dentistry in any state is suspended, revoked or otherwise limited (other than administrative suspensions cured within
60 calendar days) or the Holder otherwise becomes disqualified from holding the Restricted Securities under applicable Law or the Company’s
articles of organization, operating agreement and other governing documents, (iii) the Holder is debarred, excluded or suspended
from participating in any “federal health care program” as defined in 42 U.S.C. § 1320a-7b(f), subject to a civil monetary
penalty assessed under Section 1128A of the Social Security Act or listed on the General Services Administration published list
of parties excluded from federal procurement programs and non-procurement programs, (iv) the Holder attempts to Transfer any Restricted
Securities or cause the Company to transfer any equity securities of any of its subsidiaries not in compliance with this Agreement, (v) the
Company breaches or attempts to breach any management or business support services agreement then in effect between Manager and the Company
or any of its subsidiaries on account of any action or omission by the Holder, (vi) the Holder becomes insolvent, voluntarily files
for bankruptcy or similar protection from creditors, is subject to an involuntary petition for bankruptcy or similar protection, (vii) any
petition or other document is filed to cause or intended to cause a judicial, administrative, voluntary or involuntary dissolution of
the Company or (viii) any petition or other document is filed seeking judicial or administrative review of, or challenging the enforceability
of this Agreement, the Company’s articles of organization or any other agreement, document or instrument pertaining to the governance,
management or operation of the Company.
19.2
“Designated Transferee” means a licensed professional designated
by Manager who is permitted to own the Restricted Securities under applicable Law as then in effect.
20. Transfer
of Restricted Securities. Upon a Transfer Event, in consideration for the Restricted Securities, the Designated Transferee will pay
to the Holder One Thousand and 00/100 U.S. Dollars ($1,000.00) (the “Purchase Price”), delivered in immediately available
funds within 30 calendar days after the Transfer of the Restricted Securities to the Designated Transferee.
20.1
Notwithstanding the Designated Transferee’s obligation to pay the Purchase Price
to the Holder pursuant to this Section 20 and subject to Section 20.2:
(a) the
Restricted Securities will be immediately deemed Transferred to the Designated Transferee upon a Transfer Event and thereafter the Holder
will only have the right to receive the Purchase Price from the Designated Transferee,
(b) neither
the Holder nor any purported transferee of the Restricted Securities (other than the Designated Transferee) will have or may exercise
any voting, economic or other rights or interests in the Restricted Securities or otherwise with respect to the Company, and
(c) the
Holder will automatically and immediately be deemed to have resigned from all director, limited liability company manager, officer or
other similar positions of the Company that were held by the Holder immediately before the Transfer Event.
20.2
As contemplated in Section 19, the effective date of a Transfer Event may be extended by Manager for a reasonable
period of time as reasonably required to provide any necessary regulatory or contractual notices and obtain any necessary regulatory
or contractual approvals or new licenses and avoid any adverse effect on the continuity of patient care; during any such extended period,
the Holder will hold the Restricted Securities in trust for the benefit of the Designated Transferee and take all commercially reasonable
actions requested by Manager and/or the Company to provide such notices and obtain such approvals or licenses and ensure a smooth transition
of the ownership of the Restricted Securities.
20.3
If the Designated Transferee fails to timely pay the Purchase Price to the Holder in accordance with this Section 20, then
the Holder’s only remedy will be money damages and such failure will not negate or otherwise jeopardize the effectiveness of the
Transfer of the Restricted Securities to the Designated Transferee.
20.4
The Holder has completed in blank the Restricted Securities Transfer Power attached
hereto as Exhibit A to facilitate the agreements set forth herein.
21. New
Securities. The Holder will not cause or otherwise permit the Company to issue any new, substituted or additional securities to any
Person other than the Holder absent the prior written consent of the Parties and subject to the recipient of such new securities first
agreeing in writing that such new securities are subject to the restrictions and obligations in this Agreement applicable to the Restricted
Securities. Any attempted issuance of new securities in violation of this Agreement will be null and void ab initio. The restrictions
contained in this Agreement will apply to any new, substituted or additional securities issued to the Holder in respect of the Restricted
Securities and any other property distributed to the Holder in respect of the Restricted Securities upon any dividend, securities split,
reverse securities split, recapitalization, merger, reorganization or other change affecting the Company’s outstanding equity securities.
22. Subsidiary
Securities. The Holder will not cause or otherwise permit the Company to (a) Transfer any securities of any of the Company’s
subsidiaries (whether now in existence or hereafter created) or (b) authorize or issue any new, substitute or additional securities
to any Person other than the Company. Any attempted transfer or issuance of any securities of a subsidiary of the Company in violation
of this Agreement will be null and void ab initio.
23. Certificate
Legends. All certificates representing Restricted Securities will bear the following legend:
THE SECURITIES REPRESENTED
BY THIS CERTIFICATE (a) ARE SUBJECT TO AN EQUITY TRANSFER RESTRICTION AGREEMENT DATED________________ AND (b) MAY NOT
BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ENCUMBERED EXCEPT AS PERMITTED IN ACCORDANCE WITH SUCH SECURITIES
TRANSFER RESTRICTION AGREEMENT. THE RECORD HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY OBTAIN A COPY OF THE EQUITY
TRANSFER RESTRICTION AGREEMENT FROM THE COMPANY UPON WRITTEN REQUEST AND WITHOUT CHARGE.
24. Miscellaneous.
24.1
Further Assurances. Each Party will take all further actions and execute and deliver all further documents that are necessary
to comply with the terms of this Agreement.
24.2
Notices. All notices and other communications required or permitted under this Agreement
(i) must be in writing, (ii) will be duly given (A) when delivered personally to the recipient or (B) one Business
Day after being sent to the recipient by nationally recognized overnight private carrier (charges prepaid) and (iii) addressed as
follows (as applicable):
If to the Holder, to the most recent
address for the Holder reflected in the Company’s books and records.
| If to Manager: | If to Company: |
or to such other respective address
as each Party may designate by notice given in accordance with this Section 24.2.
24.3
Entire Agreement. This Agreement constitutes the complete agreement and understanding
among the Parties regarding the subject matter of this Agreement and supersedes any prior understandings, agreements or representations
regarding the subject matter of this Agreement.
24.4
Amendments. The Parties may amend this Agreement only pursuant to a written agreement executed by the Parties.
24.5
Non-Waiver. The Parties’ respective rights and remedies under this Agreement are cumulative and not alternative. Neither
the failure nor any delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further
exercise of such right, power or privilege or the exercise of any other right, power or privilege. No waiver will be effective unless
it is in writing and signed by an authorized representative of the waiving Party. No waiver given will be applicable except in the specific
instance for which it was given. No notice to or demand on a Party will constitute a waiver of any obligation of such Party or the right
of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
24.6
Assignment. No Party may assign this Agreement or any rights under this Agreement, or
delegate any duties under this Agreement, without the other Parties’ prior written consent; provided, however, that Manager
may assign this Agreement or any of its rights under this Agreement or delegate any of its duties under this Agreement without the consent
of the other Parties.
24.7
Binding Effect; Benefit. This Agreement will inure to the benefit of and bind the Parties and their respective successors and
permitted assigns. Nothing in this Agreement, express or implied, may be construed to give any Person other than the Parties and their
respective successors and permitted assigns any right, remedy, claim, obligation or liability arising from or related to this Agreement;
provided, however, that the Designated Transferee is an intended beneficiary of this Agreement and will have standing to enforce the
provisions of this Agreement.
24.8
Severability. If any court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, then the
other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable
only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
24.9
References. The headings of Sections are provided for convenience only and will not affect the construction or interpretation
of this Agreement. Unless otherwise provided, references to “Section(s)” and “Exhibit(s)” refer to the corresponding
section(s) and exhibit(s) of or to this Agreement. Each Exhibit is hereby incorporated into this Agreement by reference.
Reference to a statute refers to the statute, any amendments or successor legislation and all rules and regulations promulgated
under or implementing the statute, as in effect at the relevant time. Reference to a contract, instrument or other document as of a given
date means the contract, instrument or other document as amended, supplemented and modified from time to time through such date.
24.10
Construction. Each Party participated in the negotiation and drafting of this Agreement, assisted
by such legal and tax counsel as it desired, and contributed to its revisions. Any ambiguities with respect to any provision of this
Agreement will be construed fairly as to all Parties and not in favor of or against any Party. If question arises as to whether or not
a Transfer Event has occurred, a good faith determination by the board of directors or equivalent governing authority of Manager will
control. All pronouns and any variation thereof will be construed to refer to such gender and number as the identity of the subject may
require. The terms “include” and “including” indicate examples of a predicate word or clause and not a limitation
on that word or clause. The term “Business Day” means a day that is not a Saturday, Sunday or legal holiday on which
banks are authorized or required to be closed in Minneapolis, Minnesota.
24.11
Governing Law. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
24.12
Arbitration. Except as expressly provided below in this Section 24.12, all controversies,
claims and disputes arising from or relating to this Agreement will be resolved by final and binding arbitration before a single neutral
arbitrator located in Hennepin County, Minnesota, conducted under the applicable rules of the American Arbitration Association.
The arbitrator’s award will be final and binding upon the Parties and judgment may be entered on the award. Each Party expressly
waives its right to have any controversies, claims or dispute arising from or related to this Agreement decided by a court or jury. The
Parties and the arbitrator will maintain in confidence the existence of the arbitration proceeding, all materials filed in conjunction
therewith and the substance of the underlying dispute unless and then only to the extent that disclosure is otherwise required by applicable
Law.
24.13
Specific Enforcement. The Holder acknowledges and agrees that (i) compliance with the Holder’s
covenants and agreements in Section 18, Section 19, Section 20 and this Section 24.13 is necessary
to protect the goodwill and legitimate business interests of the other Parties and their businesses, (ii) a breach of any such covenant
or agreement will cause irreparable injury to the other Parties and actual damages would be difficult to ascertain and would be inadequate,
(iii) if the Holder breaches any such covenant or agreement, then the other Parties will be entitled to injunctive relief and specific
performance to enforce the terms of this Agreement in addition to such other legal and equitable remedies that may be available (without
any requirement to post bond or other security), (iv) the Holder hereby waives the claim or defense that an adequate remedy at law
exists for such a breach, (v) the Holder hereby waives any claim or defense to the enforcement of such covenants and agreements
arising from or related to any other claim or cause of action that the Holder may have against any other Party and (vi) the Holder
will reimburse the other Parties for all costs and expenses (including reasonable attorneys’ fees and costs) arising from or related
to the enforcement of this Section 24.13.
24.14
Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING
IN CONNECTION WITH ANY MATTER RELATING TO THIS AGREEMENT.
24.15
Counterparts. The Parties may execute this Agreement in multiple counterparts, each of which will
constitute an original and all of which, when taken together, will constitute one and the same agreement. The Parties may deliver executed
signature pages to this Agreement by facsimile, electronic mail (including pdf or any electronic signature complying with the U.S.
federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method. No Party may raise as a defense to the formation
or enforceability of this Agreement, and each Party forever waives any such defense, either (i) the use of a facsimile, email, or
such other transmission method to deliver a signature or (ii) the fact that any signature was signed and subsequently transmitted
by facsimile, email, or such other transmission method.
[SIGNATURE PAGE
IMMEDIATELY FOLLOWS]
The Parties have
signed this Equity Transfer Restriction Agreement as of the date first written above.
| Company: |
DENTAL SPECIALISTS OF MINNESOTA, PLLC |
| |
|
| |
By: |
|
| |
Name: |
Alan Law, D.D.S., Ph.D. |
| |
Title: |
President |
| |
|
| |
|
| Holder: |
|
| |
Alan Law, D.D.S., Ph.D. |
| |
|
| |
|
| Manager: |
Park Dental Partners, Inc. |
| |
|
| |
By: |
|
| |
Name: |
Peter G. Swenson |
| |
Title: |
Chief Executive Officer |
SIGNATURE PAGE TO
EQUITY TRANSFER RESTRICTION AGREEMENT
The undersigned,
being the spouse of the Holder, joins in the execution of this Agreement to evidence that the undersigned’s community property,
tenants-by-the-entirety, or other similar interest, if any, in and to the Restricted Securities is subject to the terms and conditions
of this Agreement in all respects.
Acknowledged and Agreed:
EXHIBIT A
FORM OF
RESTRICTED SECURITIES TRANSFER POWER
[see attached]
EXHIBIT TO
EQUITY TRANSFER RESTRICTION AGREEMENT
RESTRICTED SECURITIES
TRANSFER POWER
For
value received, the undersigned hereby (i) sells, assigns and transfers to ___________________________________ all of the
undersigned’s equity interests of Dental Specialists of Minnesota, PLLC, a Minnesota professional limited liability company (the
“Company”), standing in the undersigned’s name on the books and records of the Company and (ii) irrevocably
constitutes and appoints Park Dental Partners, Inc., a Minnesota corporation, as the undersigned’s attorney to transfer such
equity securities on the books of the Company with full power of substitution in the premises.
| Date: |
|
|
|
| |
|
|
| |
|
Name: Alan Law, D.D.S., Ph.D. |
EXHIBIT D
HIPAA BUSINESS
ASSOCIATE AGREEMENT
BUSINESS ASSOCIATE
AGREEMENT
THIS
BUSINESS ASSOCIATE AGREEMENT (“Agreement”) is entered into on this ___ day of ______, 2023, (“Effective
Date”) by and between Dental Specialists of Minnesota, PLLC (hereinafter, referred to as “Covered Entity”) and Park
Dental Partners, Inc. (hereinafter, referred to as “Business Associate”). This Agreement shall be incorporated into
the Agreement as indicated below.
RECITALS
WHEREAS,
pursuant to an Administrative Resources Agreement (“Agreement”) entered into by and between Covered Entity and Business
Associate, Business Associate creates, receives, maintains or transmits Protected Health Information (“PHI”) on behalf of
Covered Entity when providing certain functions, activities, and services (collectively “Services”) to Covered Entity;
WHEREAS,
Covered Entity and Business Associate are subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
and its implementing privacy, security, breach notification and enforcement rules at 45 C.F.R. Parts 160 and 164 (“HIPAA Rules”),
the applicable provisions of the Health Information and Technology for Economic and Clinical Health Act of 2009 (“HITECH”),
and any future implementing regulations and guidance issued by the Secretary; and
WHEREAS,
the HIPAA Rules require Covered Entity and Business Associate to enter into an agreement to provide for the protection of the
privacy and security of PHI before Business Associate is permitted to create, receive, maintain or transmit PHI on behalf of Covered
Entity.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties agree as follows:
I. Definitions.
The following terms shall have the meaning ascribed to them in this Section. Other capitalized terms shall have the meaning ascribed
to them in the context in which they first appear. Terms used, but not otherwise defined, in this Agreement shall have the same meaning
as those terms established in 45 C.F.R. §§ 160 through 164.
| 1. | Breach
shall mean the unauthorized acquisition, access, use, or disclosure of PHI which compromises
the security or privacy of such information, as defined in 45 C.F.R. § 164.402. |
| | | |
| 2. | Breach
Notification Rule shall mean the Standards and Implementation Specifications for
Notification of Breaches of Unsecured PHI under 45 C.F.R. Parts 160 and 164, subparts A and
D. |
| 3. | Data
Aggregation shall mean, with respect to PHI created or received by a business associate
in its capacity as the business associate of a covered entity, the combining of such PHI
by the business associate with the PHI received by the business associate in its capacity
as a business associate of another covered entity, to permit data analyses that relate to
the health care operations of the respective covered entities. |
| | | |
| 4. | Designated
Record Set shall mean a group of records maintained by or for Covered Entity that is:
(a) the medical records and billing records about Individuals maintained by or for a
covered health care provider; or (b) used in whole or in part, by or for Covered Entity
to make decisions about individuals. For these purposes, the term record means any item,
collection, or grouping of information that includes PHI and is maintained, collected, used,
or disseminated by or for Covered Entity. |
| | | |
| 5. | Electronic
Protected Health Information or EPHI shall mean individually identifiable health
information that is transmitted or maintained in electronic media as defined in 45 C.F.R.
§ 160.103. |
| | | |
| 6. | HHS
shall mean the United States Department of Health and Human Services. |
| | | |
| 7. | Individual
shall mean the person who is the subject of the PHI, and shall have the same meaning
as the term “individual” as defined in 45 C.F.R. § 160.103 and shall include
a person who qualifies as a personal representative in accordance with 45
C.F.R. § 164.502(g). |
| | | |
| 8. | Parties shall mean
Business Associate and Covered Entity. |
| | | |
| 9. | Privacy
Rule shall mean the Standards and Implementation Specifications for Privacy of Individually
Identifiable Health Information at 45 C.F.R. Parts 160 and 164, subparts A and E. |
| | | |
| 10. | Protected
Health Information or PHI shall have the same meaning as the term “protected
health information” in 45 C.F.R. § 160.103, limited to the information created
or received by Business Associate from or on behalf of Covered Entity. |
| | | |
| 11. | Required
by Law shall have the same meaning as the term “required by law” in 45 C.F.R.
§ 164.512. |
| | | |
| 12. | Secretary
shall mean the Secretary of the United States Department of Health and Human Services,
or his or her designee. |
| | | |
| 13. | Security
Incident shall mean the attempted or successful unauthorized access, use, disclosure,
modification, or destruction of information or interference with system operations in an
information system as defined in 45 C.F.R. § 164.304. |
| | | |
| 14. | Security
Rule shall mean the Security Standards and Implementation Specifications for the
Protection of Electronic Protected Health Information at 45 C.F.R. Parts 160 and 164, subparts
A and C. |
| 15. | Subcontractor
shall have the same meaning as the term “subcontractor” in 45 C.F.R. §
160.103. |
| | | |
| 16. | Unsecured
Protected Health Information shall mean PHI that is not rendered unusable, unreadable,
or indecipherable to unauthorized persons through the use of a technology or methodology
specified by the Secretary from time to time. |
| | | |
II. Permitted
Uses and Disclosures of PHI by Business Associate.
| 1. | Generally.
Except as otherwise limited in this Agreement, Business Associate may use or disclose
PHI to perform functions, activities or services for, or on behalf of, Covered Entity as
specified in the Agreement, provided that such use or disclosure would not violate the Privacy
Rule if done by Covered Entity. Any such use or disclosure shall be limited to those
reasons and those individuals as necessary to meet the Business Associate’s obligations
under the Agreement. In all circumstances, Business Associate shall limit such uses and disclosures
to the minimum amount of PHI that is necessary to fulfill those obligations in accordance
with the HIPAA Rules and any future implementing regulations and guidance issued by
the Secretary. |
| 2. | Management,
Administration, and Legal Responsibilities. Business Associate may use PHI, if necessary,
for the proper management and administration of Business Associate or to carry out the legal
responsibilities of Business Associate. Business Associate may disclose PHI, if necessary,
for the proper management and administration of Business Associate or to carry out the legal
responsibilities of Business Associate, provided: |
| a. | The disclosure is Required by Law; or |
| b. | Business Associate
obtains reasonable assurances from the person to whom the PHI is disclosed that it will remain
confidential and will be used or further disclosed only as Required by Law or for the purpose
for which it was disclosed to the person, and the person promptly notifies Business Associate
of any instances of which it is aware in which the confidentiality of the PHI has been breached. |
| 3. | Data
Aggregation. Except as otherwise limited by this Agreement, if Business Associate provides
Data Aggregation services, Business Associate may use PHI to provide Data Aggregation services
to Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B). |
| 4. | De-identified
Data. Business Associate may use PHI to create de-identified data in accordance with
the HIPAA Rules. Data that has been de-identified will no longer be subject to the terms
of this Agreement. |
III. Obligations
of Business Associate.
| 1. | Appropriate
Safeguards. Business Associate will use appropriate safeguards and comply with the Security
Rule with respect to EPHI that it creates, receives, maintains, or transmits on behalf
of Covered Entity. |
| 2. | Mitigation
of Harm. Business Associate agrees to mitigate, to the extent practicable, any harmful
effect that is known to Business Associate of a use or disclosure of PHI by Business Associate
in violation of the requirements of this Agreement. |
| 3. | Reporting.
Business Associate will report to Covered Entity any use or disclosure of PHI not provided
for by this Agreement. Business Associate will also report to Covered Entity any Security
Incident of which it becomes aware with respect to EPHI. Additionally, Business Associate
will report to Covered Entity within five (5) business days of discovering a Breach
of Unsecured PHI. The Breach notice shall be in writing and meet the requirements of the
Breach Notification Rule. Business Associate agrees to investigate any suspected Breach,
to establish and implement procedures to mitigate losses and to protect against future Breaches,
and to provide a description of all such investigations and procedures to Covered Entity
upon the request of Covered Entity. Unless otherwise mutually agreed by the parties, the
Covered Entity shall be responsible for providing notification of any Breach to individuals,
the Secretary, and/or the media as may be required (in Covered Entity’s sole determination)
by 45 C.F.R. §164 Subpart D. |
| 4. | Subcontractors.
Business Associate agrees to ensure that any Subcontractor that creates, receives, maintains,
or transmits PHI, including EPHI, on behalf of the Business Associate, agrees to the same
restrictions and conditions that apply through this Agreement to Business Associate with
respect to such information, including but not limited to, compliance with the applicable
requirements of 45 C.F.R. Parts 160 and 164. Such agreement between Business Associate and
Subcontractor must be made in writing and must comply with the terms of this Agreement and
the requirements outlined in 45 C.F.R. §§ 164.504(e) and 164.314. If the Business
Associate is aware of a pattern of activity or practice of Subcontractor that constitutes
a material breach or violation of Subcontractor’s obligations under such agreement,
and such breach is not cured within a reasonable time, Business Associate shall terminate
such agreement with Subcontractor, if feasible. |
| 5. | Access
to PHI. Business Associate shall provide access, at the request of Covered Entity, and
in the time and manner reasonably designated by Covered Entity, to PHI in a Designated Record
Set to Covered Entity or, as directed by Covered Entity, to an Individual, in order to meet
the requirements under 45 C.F.R. § 164.524 with regard to providing an Individual with
a right to access the Individual’s PHI. If Covered Entity requests an electronic copy
of PHI that is maintained electronically in a Designated Record Set in the Business Associate’s
custody or control, Business Associate will provide an electronic copy in the form and format
specified by the Covered Entity if it is readily producible in such format. If it is not
readily producible in such format, Business Associate will work with Covered Entity to determine
an alternative form and format that enables Covered Entity to meet its electronic access
obligations under 45 C.F.R. § 164.524. |
| 6. | Amendments
to PHI. Business Associate agrees to make any amendment(s) to PHI in a Designated
Record Set that the Covered Entity directs or agrees to pursuant to 45 C.F.R. § 164.526
at the request of Covered Entity or an Individual, and in the time and manner reasonably
designated by Covered Entity. |
| 7. | Documentation
of Disclosures. Business Associate shall document such disclosures of PHI and information
related to such disclosures as would be required for Covered Entity to respond to a request
by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. §
164.528, HITECH and any future implementing regulations and guidance issued by the Secretary.
For each such disclosure, Business Associate shall document the following information: (i) the
date of the disclosure; (ii) the name and, if known, the address of the recipient of
the PHI; (iii) a brief description of the PHI disclosed; and (iv) a statement that
reasonably informs Covered Entity of the purpose of the disclosure. Business Associate agrees
to provide to Covered Entity, in the time and manner reasonably designated by Covered Entity,
information collected in accordance with this provision. |
| 8. | Request
for an Accounting Directly to Business Associate. Business Associate shall inform Covered
Entity of a request for an accounting made directly to Business Associate within five (5) days
of having received the request. Covered Entity shall either inform Business Associate to
provide the requested information directly to the individual or request Business Associate
to immediately forward the information to Covered Entity for compilation and distribution
to the individual. In the case of a direct request for an accounting from an individual related
to treatment, payment, or operations disclosures through electronic health records, Business
Associate shall provide the accounting to the individual in accordance with HITECH and any
future implementing regulations and guidance issued by the Secretary. Business Associate
shall confirm with Covered Entity that Covered Entity provided Business Associate’s
name to the individual in response to a request for an accounting before providing the requested
accounting to the individual. |
| 9. | Access
to Books and Records. Business Associate shall make its internal practices, books, and
records relating to the use and disclosure of PHI received from, or created or received by
Business Associate on behalf of, Covered Entity available to the Covered Entity or to the
Secretary in a time and manner designated by Covered Entity or the Secretary for purposes
of determining Covered Entity’s or Business Associate’s compliance with the HIPAA
Rules. |
| 10. | Carrying
Out Obligations of Covered Entity. To the extent the Business Associate is to carry out
a Covered Entity’s obligation(s) under the HIPAA Rules, Business Associate shall
comply with the requirements of the HIPAA Rules that apply to the Covered Entity in
the performance of such obligation. |
IV. Obligations
of Covered Entity.
| 1. | Covered
Entity shall notify Business Associate of any limitation(s) in the notice of privacy
practices to the extent that such limitation may affect Business Associate’s use or
disclosure of PHI. |
| 2. | Covered
Entity shall provide Business Associate with any changes in, or revocation of, permission
by an Individual to use or disclose PHI, if such changes affect Business Associate’s
permitted or required uses and disclosures. |
| 3. | Covered
Entity shall notify Business Associate of any restriction to the use or disclosure of PHI
that Covered Entity has agreed to or must comply with in accordance with 45 C.F.R. §
164.522. |
| 4. | Covered
Entity shall not request Business Associate to use or disclose PHI in any manner that would
not be permissible under the Privacy Rule if done by Covered Entity, except as set forth
in Section II (Permitted Uses and Disclosures of PHI by Business Associate) of this
Agreement. |
V. Term
and Termination.
| 1. | Term.
The term of this Agreement shall commence on the Effective Date and shall remain in effect
for the duration of the relationship, functions or services giving rise to the necessity
of this Agreement, and until all of the PHI provided by Covered Entity to Business Associate,
or created, received, maintained or transmitted by Business Associate on behalf of Covered
Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or
destroy PHI, protections are extended to such information, in accordance with the termination
provisions in this Section. |
| 2. | Termination
Resulting from the End of Relationship, Functions or Services. This Agreement shall terminate
in the event the Agreement terminates or the underlying relationship, functions, or services
that give rise to the necessity of this Agreement terminate for any reason. |
| 3. | Termination
for Cause. Upon either Party’s knowledge of a material breach of this Agreement
by the other Party, the non-breaching Party must either: |
| a. | Provide an
opportunity for the breaching Party to cure the breach or end the violation, and if the breaching
Party does not cure the breach or end the violation within the time specified by the non-breaching
Party, the non-breaching Party shall terminate this Agreement and any underlying agreement(s);
or |
| b. | If cure is
not possible, immediately terminate this Agreement and any underlying agreement(s). |
| 4. | Return
or Destruction of PHI Upon Termination or Expiration. Upon termination of this Agreement,
Business Associate shall return or destroy all PHI received from Covered Entity, or created
or received by Business Associate on behalf of Covered Entity. This provision shall apply
to PHI that is in the possession of Subcontractors of Business Associate. Business Associate
shall not retain copies of such information upon termination of Agreement. In the event that
Business Associate determines that returning or destroying PHI is infeasible, Business Associate
shall provide to Covered Entity notification of the conditions that make return or destruction
infeasible. Upon mutual agreement of the Parties that return or destruction of PHI is infeasible,
Business Associate shall extend the protections of this Agreement to such PHI and limit further
uses and disclosures of such PHI to those purposes that make the return or destruction infeasible,
for so long as Business Associate maintains such PHI. |
VI. Notice
Whenever,
under the terms of this Agreement, written notice is required or permitted to be given by one party to the other party, such notice shall
be deemed to have been sufficiently given if when delivered (personally, by carrier service such as Federal Express, or by other messenger)
or upon actual receipt of registered or certified mail, postage prepaid, return receipt requested, addressed to the last known address
of the intended recipient.
Notice
under this Agreement shall be provided to the following for Covered Entity:
HIPAA Privacy Officer
Address:
City, State Zip:
Telephone:
Facsimile:
Email:
Notice
under this Agreement shall be provided to the following for Business Associate:
Business Associate Name:
Address:
City, State Zip:
Telephone:
Email:
VII. Additional Provisions.
| 1. | Remuneration
in Exchange for PHI. Business Associate shall not directly or indirectly receive remuneration
in exchange for any PHI of an individual unless Covered Entity has received a valid authorization
from that individual or the exchange is otherwise permitted by the HIPAA Rules. As permitted
by law, Covered Entity may provide remuneration to Business Associate for activities involving
the exchange of PHI that Business Associate undertakes on behalf of the Covered Entity if
the remuneration is for the performance of such activities. |
| 2. | Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio to the extent that the provisions of the HIPAA Rules do not preempt
the laws of the State of Ohio. |
| 3. | Entire
Agreement. This Agreement constitutes the entire Agreement of the Parties and supersedes
all prior oral and written agreements or understandings between them with respect to the
matters provided for herein. All notices and other communications under this Agreement shall
be in writing. |
| 4. | Regulatory
References. A reference in this Agreement to a section in the HIPAA Rules means
the section as in effect or as amended, and for which compliance is required. |
| 5. | Amendment.
The Parties agree to take such action as is necessary to amend this Agreement from time
to time as is necessary for Covered Entity to comply with the requirements of the HIPAA Rules. |
| 6. | Interpretation.
Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits
Covered Entity to comply with the HIPAA Rules. |
| 7. | No Third
Party Beneficiaries. There are no third party beneficiaries to this Agreement. |
IN
WITNESS WHEREOF, Business Associate and Covered Entity have agreed to the terms of the above written agreement as of the Effective
Date set forth above.
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Covered Entity |
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Date |
Exhibit 10.12
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED
FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
ADMINISTRATIVE
RESOURCES AGREEMENT
This
Administrative Resources Agreement (this “Agreement”) is made as of October 1, 2023 (the “Effective
Date”), by and between Park Dental Partners, Inc., a Minnesota corporation (“Manager”), PDG, P.A.,
a Minnesota professional corporation (“Provider”), and solely for purposes of Sections 1.2(b), 12.1, 12.2,
12.4, 12.5, 12.6, 13.3 and Article 16, Christopher Steele, D.D.S. (“Holder”). Manager, Holder and Provider
are each sometimes herein referred to as a “Party,” and collectively as the “Parties,” provided
however that the term “Party” or “Parties” is only applicable to Holder for purposes of Sections
1.2(b), 12.1, 12.2, 12.4, 12.5, 12.6 and Article 16.
RECITALS
A. Provider
delivers dental services (“Professional Services”) in Minnesota and Wisconsin; and
B. Provider
desires to engage Manager to provide the management, administrative, business, billing and other services described in this Agreement
so that Provider may focus on the rendering of Professional Services, and Manager desires to provide such services to Provider, all upon
the terms and subject to the conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and agreements set forth below, and/or other good, valuable and sufficient consideration,
the receipt and sufficiency of which are hereby acknowledged, Provider, Manager and Holder agree as follows:
TERMS AND CONDITIONS
1. Appointment.
1.1 Exclusivity.
During the Term of this Agreement, Provider hereby appoints Manager as its sole and exclusive provider of administrative and other business
services as described in this Agreement (collectively, the “Services”) and Manager accepts such appointment and agrees
to provide the Services to Provider. Manager is expressly authorized to provide such Services in any commercially reasonable manner Manager
deems appropriate to meet the requirements of the business functions of Provider, including, without limitation, delegating any duties
under this Agreement to Manager’s affiliates or to one or more subcontractors.
1.2 Representations
and Warranties.
(a) Manager
and Provider represent and warrant to each other as follows: (i) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all requisite action of such party and no other action on the part
of such Party is necessary to authorize this Agreement or to carry out the transactions contemplated hereby; (ii) neither the execution
and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby will: (x) violate any law, statute,
regulation, rule, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency
or court that such Party is subject to; or (y) conflict with, result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice or approval or consent under any
agreement (including any non-compete or other restrictive covenant), contract, lease, license, instrument or other arrangement to which
such Party is bound or to which such Party’s assets are subject (or result in the imposition of any encumbrance upon any of the
assets of such Party); and such Party is not required to give any notice to, make any filing with or obtain any authorization, registration,
qualification, consent, waiver or approval of any government or governmental agency or any third party in connection with the execution,
delivery and performance of the transactions contemplated by this Agreement by such Party.
(b) Holder
represents and warrants to the other Parties that the execution and the delivery of this Agreement, or the consummation of the transactions
contemplated hereby will not conflict with, result in a breach of, constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify or cancel, or require any notice or approval or consent under any agreement (including
any non-compete or other restrictive covenant), contract, lease, license, instrument or other arrangement to which Holder is bound or
to which Holder’s assets are subject (or result in the imposition of any encumbrance upon any of the assets of Holder).
1.3 Compliance
with Dental Practice Act. THE PARTIES HAVE MADE ALL REASONABLE EFFORTS TO ENSURE THAT THIS AGREEMENT COMPLIES WITH THE UNLICENSED
PRACTICE OF DENTISTRY PROHIBITIONS IN THE MINNESOTA DENTAL PRACTICE ACT, MINN. STAT., §§ 150A.01 to 150A.22, ET SEQ. THE
PARTIES UNDERSTAND AND ACKNOWLEDGE THAT SUCH LAWS MAY CHANGE, BE AMENDED, OR HAVE A DIFFERENT INTERPRETATION AND THE PARTIES INTEND
TO COMPLY WITH SUCH LAWS IN THE EVENT OF SUCH OCCURRENCES. UNDER THIS AGREEMENT, PROVIDER SHALL HAVE THE EXCLUSIVE AUTHORITY, MANAGEMENT
AND CONTROL OVER THE DENTAL ASPECTS OF THE PROFESSIONAL SERVICES AND SHALL PROVIDE SUCH SERVICES TO THE EXTENT THEY CONSTITUTE THE PRACTICE
OF DENTISTRY, WHILE MANAGER SHALL HAVE THE SOLE AND EXCLUSIVE AUTHORITY TO FURNISH ADMINISTRATIVE SERVICES IN SUPPORT OF PROVIDER, PROVIDED
THE PROVISION OF SUCH ADMINISTRATIVE SERVICES DOES NOT AFFECT THE PROVIDER’S OR ANY OF ITS DENTISTS’ EXERCISE OF INDEPENDENT
PROFESSIONAL JUDGMENT, REQUIRE THE PROVIDER OR ANY DENTIST TO ACT IN A MANNER WHICH VIOLATES THE PROFESSIONAL STANDARDS FOR DENTISTRY,
OR CONSTITUTE THE PRACTICE OF DENTISTRY AS DEFINED IN THE MINNESOTA DENTAL PRACTICE ACT.
2. Duties
and Responsibilities of Manager.
2.1 Billing
and Collection. Manager shall provide, or engage a third party to provide, such billing and collection services (“Billing
and Collection Services”) as are reasonably necessary to attempt to collect in a timely manner all accounts receivable in connection
with the provision of the Professional Services furnished by Provider. On behalf of and for the account of Provider, and in consultation
with Provider, Manager shall establish and maintain reasonable and compliant billing and collections policies and procedures for Provider
and shall exercise reasonable efforts to bill and collect in a timely manner all professional and other fees for all billable services
provided by Provider. Manager shall observe, and ensure compliance by Provider with, all applicable laws regarding billing and collecting
for professional dental services, and shall further ensure Provider’s compliance with all applicable policies and procedures of
third-party payors. Manager will assist Provider in the provision of training to Provider’s Dentists (as defined in Section 2.1(a) below)
regarding proper coding and coding compliance. In connection with the Billing and Collection Services to be provided hereunder, Provider
hereby appoints Manager as Provider’s exclusive true and lawful agent and grants power of attorney in favor of Manager, and Manager
hereby accepts such appointment and power of attorney, solely for the following purposes:
(a) to
submit, in the name of Provider and any and all dentists employed or engaged by Provider to provide Professional Services for the benefit
of Provider (collectively the “Dentists”), under Provider’s and/or each Dentist’s provider number(s) when
obtained, and on Provider’s and each Dentists’ behalf, all claims for reimbursement to all patients and third party payors,
including, without limitation, state or federal health care programs, for all Professional Services provided by Provider or any Dentist
to patients;
(b) to
collect and receive, in the name of Provider and each Dentist, and on behalf of Provider and each Dentist, all accounts receivable generated
by claims for reimbursement; to take possession of, endorse in the name of Provider, and deposit into Provider’s designated bank
account(s) any notes, checks, money orders, insurance payments, and any other instruments received as payment of accounts receivable;
to take all actions necessary to administer such accounts including, without limitation, extending the time or payment of any such accounts
for cash, credit or otherwise; to discharge or release the obligors of any such accounts; to sue, assign or sell at a discount such accounts
to collection agencies, or take other measures to require the payment of any such accounts;
(c) to
make demand with respect to, settle, compromise, and adjust such claims and to coordinate with collections agencies in the name of Provider
and each Dentist, any note, check, money order, insurance payment, or other instrument received as payment for Professional Services;
(d) to
effect the transfer from Provider’s bank accounts to an account designated by Manager the payment of any and all amounts due by
Provider to Manager, including without limitation, any payment due for the Services or in connection with loans made by Manager or one
of its affiliates to Provider; and
(e) to
sign checks, drafts, bank notes or other instruments on behalf of Provider, and to make withdrawals from Provider’s account for
payments specified in this Agreement and as requested from time to time by Provider, and generally to apply such funds in a manner consistent
with this Agreement.
2.2 Bank
Accounts.
(a) To
facilitate the Billing and Collection Services, Manager shall establish and maintain, in the name of Provider and for Provider’s
benefit, certain bank accounts, including one or more designated the “Provider Account(s)” and one or more designated
the “Operating Account(s)”. Each Provider Account will be in Provider’s name, and Provider will have sole ownership
of such Provider Accounts. To facilitate Manager’s Billing and Collection Services, each Operating Account will be in Manager’s
name and maintained for Provider’s benefit.
(b) All
payments due in respect of dental services rendered and products provided by or on behalf of Provider, and any other amounts payable
to Provider, will be directed to the Provider Accounts. Provider will enter into an agreement chosen by the Parties to (i) establish
and service the Provider Accounts subject to the requirements of this Agreement (including a power of attorney granted by Provider to
Manager), (ii) facilitate the collection and negotiation of payments from third-party payors and the deposit of such payments into
the Provider Accounts, and (iii) sweep all funds, subject to a minimum balance as mutually agreed by the Parties, from the Provider
Accounts into the Operating Accounts on a daily basis. Except in connection with the termination or expiration of this Agreement, any
modification or revocation of such authorization and instructions by Provider without Manager’s prior written consent shall constitute
a breach of this Agreement.
(c) Manager
shall use the Operating Accounts to receive funds from the Provider Accounts and to make payments as specified in this Agreement and
as otherwise requested from time to time by Provider consistent with the terms of this Agreement.
(d) Manager
will transfer funds from the Operating Accounts to payroll accounts owned by Provider for purposes of funding Provider’s payroll
and other expenses borne directly by Provider.
2.3 Personnel.
(a) Manager
shall recruit, employ, engage, lease, hire, train, promote, direct, supervise and terminate the employment or lease of all non-dentist
personnel and such other personnel that are not required by their licenses or otherwise by law to be employed by Provider (or arrange
for the same through an employee leasing arrangement or as independent contractors) (collectively, the “Non-Dentist Personnel”)
as Manager determines is appropriate for the provision of the Professional Services by Provider, provided that such conduct does not
interfere with the Provider’s independent professional judgment or require the Provider to act in a manner which violates the professional
standards for dentistry. Manager shall supervise the Non-Dentist Personnel in all non-clinical aspects of their exercise of such duties.
Provider shall provide clinical oversight, as applicable, to the Non-Dentist Personnel.
(b) Subject
to Provider’s review and approval, Manager shall establish and implement guidelines for the recruitment, selection, and credentialing
of Dentists or other personnel that are required by their licenses or otherwise by law to be employed or engaged by Provider (the “Licensed
Personnel”) to provide Professional Services on behalf of Provider, provided that Provider shall have ultimate responsibility
and decision making authority regarding the hiring, training, supervising, and termination of Licensed Personnel, and provided further
such conduct does not interfere with Provider’s independent professional judgment or require the Provider to act in a manner which
violates the professional standards for dentistry. Manager will carry out such administrative functions as may be appropriate for such
recruitment, selection and credentialing, including, without limitation, advertising for and identifying potential candidates, assisting
Provider in examining and investigating the credentials of such potential candidates, and arranging interviews with such potential candidates.
As part of the Services, Manager shall perform or cause to be performed the following credentialing services: verification of state licensure,
controlled substances registration numbers, malpractice history, and employment history. Manager also shall determine whether any candidate
has been listed in Office of Foreign Assets Control’s “Specially Designated Nationals and Blocked Persons” list
or has been excluded or otherwise sanctioned by a state or federal health care program (e.g., Medicare, Medicaid or TRICARE) by reviewing
the List of Excluded Individuals/Entities published by the Office of Inspector General for the Department of Health and Human Services
and other available sources of information, as determined by Manager.
(c) Manager,
on behalf of Provider, shall pay all salaries and wages and such benefits as set forth in the benefit policy as determined by the Manager
in consultation with Provider (which may include all or portion of health, life, and disability insurance coverage and contributions
under employee benefit plans), travel and office reimbursement expenses, vacation and sick pay, employment and payroll taxes; and the
cost of payroll administration and administration of benefits, for Dentists employed by Provider. In connection therewith, Provider hereby
appoints Manager as Provider’s exclusive true and lawful agent and grants a power of attorney in favor of Manager, and Manager
hereby accepts such appointment and power of attorney to enter into benefits agreements on behalf of Provider.
2.4 Public
Relations. Manager shall develop, with Provider’s consultation, public relations and advertising programs to be implemented
by Provider to effectively promote its Professional Services. Manager shall advise and assist Provider in implementing such programs,
which assistance shall include preparing (or obtaining services necessary for preparing) marketing and advertising materials and negotiating
public relations and advertising contracts on Provider’s behalf. Manager and Provider agree that all public relations and advertising
programs shall be conducted in compliance with all applicable standards of dental ethics, laws and regulations. Manager shall not provide
services contemplated by this Section 2.4 with regard to operations in any state to the extent that the provision of services
by Manager would violate any applicable law.
2.5 Contract
Assistance. Manager shall advise Provider with respect to, and may, as appropriate and permitted by applicable law, negotiate in
the name of and at the expense of Provider, such contractual arrangements with commercial payors and such other third parties as are
reasonably necessary and appropriate for Provider’s operation, including, without limitation, service agreements with health care
facilities, third-party payors, or other purchasers of dental services (collectively, “Contracts”). Manager is hereby
expressly authorized, as Provider’s agent and at Provider’s expense, to execute and deliver any of such Contracts, in the
name of and on behalf of Provider and each Dentist, and presentation of a copy of this Agreement shall constitute conclusive evidence
of such agency. Manager may, in the name and on behalf of Provider and each Dentist, modify, supplement, amend, or terminate, or grant
waivers or releases of obligations under, any of such Contracts; provided, however, that Manager shall not have authority to amend this
Agreement other than pursuant to the terms set forth in Section 16. Manager shall not provide services contemplated by this
Section 2.5 to the extent that the provision of services by Manager would violate any applicable law.
2.6 Insurance.
Manager shall arrange for the purchase by Provider, at Provider’s cost and expense, of reasonable insurance coverage for Provider
providing coverage in reasonable amounts from established and reputable insurers, including but not limited to directors and officers
liability insurance, workers compensation insurance and a policy or policies of professional liability insurance providing coverage for
Provider and its Licensed Personnel.
2.7 Assets,
Equipment and Supplies: Computer and Information Technology Systems.
(a) Assets,
Equipment and Supplies. Manager in consultation with Provider shall select, purchase, lease, license or otherwise acquire or arrange
for the use of all assets necessary for Provider to provide the Professional Services, including, without limitation, medical, dental,
computer and other equipment, software, supplies, inventory, and other materials and items, in such quantities and at such times as Manager
and Provider shall determine to be adequate or appropriate to provide the Professional Services, except as prohibited by applicable law.
Manager shall consult with Provider to ensure that such assets, equipment and supplies are necessary and appropriate with respect to
the delivery of the Professional Services. Unless otherwise herein specifically provided or prohibited by applicable law, all right,
title and interest to and in such assets, equipment and supplies shall at all times remain with Manager and Provider agrees not to take
any action that would adversely affect Manager’s right or title thereto or interest therein. All of the costs and expenses related
or incident to Manager’s obligations under this Section 2.7 shall be the responsibility of and shall be for the account
of Provider, regardless of whether Manager provides such assets or procures such assets on Provider’s behalf. Manager’s provision
of the assets, equipment and supplies to Provider shall in no way impair, limit, restrict or interfere with Provider’s full and
independent professional judgment and responsibility to patients or require the Provider to act in a manner which violates the professional
standards for dentistry. Furthermore, material or equipment necessary for the Provider to engage in the practice of dentistry as defined
by Minn. Stat. 150A.05 that only a licensed dentist may lawfully select, purchase, lease, license or otherwise acquire or arrange for
the use of under applicable federal and state law, will be subject to Provider’s approval consistent with this Agreement and not
to be unreasonably withheld, and subject to Provider’s ownership and control once so approved.
(b) Computer
Systems. Without limiting the generality of the provisions of Section 2.7(a) above, Manager shall provide Provider
with computer hardware and software. Manager may determine from time to time that said hardware and software requires upgrading or replacement,
the cost of which shall be the responsibility of Manager. All computer software, including, without limitation, such upgrades, shall
remain the property of Manager during the Term of this Agreement and shall be returned to Manager upon termination hereof, subject to
any applicable licensor approvals. Provider is hereby granted a non-exclusive right to use said software during the Term of this Agreement
and Manager will ensure any applicable licensors consent to such right to the extent contractually required by the licensor. The computer
hardware, including, without limitation, any upgrades, provided to Provider may be retained by Provider following termination of this
Agreement.
2.8 Accounting.
Manager shall establish and administer bookkeeping and accounting procedures and controls and systems for the development, preparation,
and keeping of records and books of accounting related to the business and financial affairs of Provider.
2.9 Tax
Matters; Corporate Filings. Manager shall on Provider’s behalf and at Provider’s expense, prepare and file, or cause
to be prepared and filed by qualified professionals, the annual report, tax reports and tax returns required to be filed by Provider.
All amounts payable with respect to any of such taxes shall be the responsibility of and shall be for the account of Provider.
2.10
Budgets. Manager in consultation with Provider shall prepare for review by Provider all capital and annual operating budgets.
2.11
Expenditures. Manager shall manage all cash receipts and disbursements of Provider, including, without limitation, the payment
on behalf of Provider of all payroll and income taxes, assessments, licensing fees and other fees of any nature whatsoever in connection
with its operation as the same become due and payable, unless payment thereof is being contested in good faith by Provider.
2.12
Practice Offices. Other than those locations of Provider set forth on Exhibit A, for which Provider shall maintain
direct responsibility and expense for securing practice space, Manager will, at Provider’s cost and expense, provide or otherwise
arrange for the provision to Provider of dental practice space (the “Practice Space”) for such days and times as reasonably
deemed necessary by Provider for Provider’s use and control consistent with this Agreement. Provider shall use and occupy such
Practice Space solely in connection with the business of Provider and the provision of Professional Services during Provider’s
normal business hours as may be determined to be appropriate by Provider and Manager from time to time. Provider acknowledges that if
permitted by applicable law, Manager may lease one or more Practice Space locations from a third party pursuant to the terms of a lease
or similar agreement or document (each, a “Lease”). Provider shall: (a) not do anything which would constitute
a breach of the terms and conditions of any Lease; (b) be bound by all provisions of each Lease, including without limitation, any
terms relating to the termination of such Lease(s); (c) not sublet or assign the entirety or any part of a Practice Space, or permit
its use by others for any purpose unless Manager gives Provider its prior written consent, which consent may be withheld by Manager in
Manager’s sole discretion; (d) not pledge, loan, create a security interest in, or abandon possession of, a Practice Space;
(e) not attempt to dispose of any Practice Space or any part of it; or (f) not permit any liens, attachments, charge, or other
judicial process to be incurred or levied on any Practice Space or any part thereof. Provider and Manager shall comply with all applicable
regulations and laws (including without limitation, rules and regulations relating to the practice of dentistry and applicable zoning
regulations). Provider further covenants and agrees that Manager and its agents shall have reasonable access to all Practice Space at
any time for purposes of inspection. Provider shall immediately notify Manager of any damage or loss to person or property at or in a
Practice Space. Manager shall amend Exhibit A from time to time to correspond with the assignment, if any, of Leases from
Provider to Manager.
2.13
Licenses. Manager shall apply for and use its reasonable efforts to obtain and maintain in the name and at the expense of Provider
all reasonable and necessary licenses, permits, certificates and Medicare, Medicaid and third party payor provider numbers required or
appropriate in connection with Provider’s provision of Professional Services.
2.14
Agency. Subject to Section 2.2 hereof, Manager shall have access to Provider’s bank account(s) solely for
the purposes stated herein and shall use all funds on deposit therein in accordance with the terms of this Agreement. Provider hereby
appoints Manager as Provider’s true and lawful agent throughout the Term, as hereinafter defined, and Manager hereby accepts such
appointment, to make withdrawals from Provider’s account for payments specified in this Agreement.
2.15
Litigation Management. Manager shall, at the expense of Provider, (a) assist Provider in the management and defense of all
claims, actions, proceedings or investigations against Provider or any of its officers, directors, employees or agents in their capacity
as such, and (b) assist Provider in the management and direction of all claims, actions, proceedings or investigations brought by
Provider against any person other than Manager or Holder. Manager shall promptly notify Provider of all material legal actions filed
on behalf of or (as Manager becomes aware thereof) against Provider. Manager shall not, except with the consent of Provider, enter into
any settlement or consent to entry of any judgment that (x) imposes any injunctive relief or other equitable relief against, or
alleges that a criminal act was committed by, Provider or Holder or imposes any monetary damages as to which Holder will not be indemnified
in full hereunder, or (y) does not include as a term thereof the giving by the Person(s) asserting such claim (or counterclaim)
to Provider and Holder of a release from all liability with respect to such claim. Notwithstanding the foregoing, Manager shall not exercise
any rights described in clauses (a)-(b) of this Section 2.16 if the matter (i) is a claim seeking non-monetary
relief, (ii) involves criminal or quasi-criminal allegations or regulatory matters, (iii) involves a claim that, if adversely
determined, would be reasonably expected to be materially adverse to the reputation of Holder, or (vi) is a third-party claim being
made by a governmental authority. If Manager exercises any rights described in clauses (a)-(b) of this Section 2.16
in accordance with this Section2.16, Provider and Holder, at their sole cost and expense, shall have the right to participate
in the defense of such third-party claim with counsel selected by it, subject to Manager’s rights described in clauses (a)-(b) of
this Section 2.16, and the fees and disbursements of such counsel shall be at the expense of Provider.
2.16
Policies. Manager shall develop, provide and revise, in consultation with and upon approval of Provider, all necessary policies
and operating procedures pertaining to Provider’s business operations (the “Policies”). Upon request of Provider,
Manager shall assist Provider in Provider’s development and implementation of clinical practice guidelines. Nothing in this Section 2.16
shall be construed to give Manager any control or influence over the practice of dentistry by Provider or any of the Dentists employed
or engaged by Provider.
2.17
Training. Manager shall furnish training services to Provider with respect to all non-clinical aspects of the operations of Provider
(other than matters related to clinical decision-making), including, without limitation, administrative, financial, billing, compliance
and equipment maintenance matters, provided that such training does not interfere with Provider’s independent professional judgment
or require the Provider to act in a manner which violates the professional standards for dentistry.
2.18
Quality Assurance and Utilization Management. Manager agrees to develop for Provider’s approval, and to implement for Provider,
a quality assurance and improvement and utilization management program in accordance with recommendations made to Provider or as required
by law or any third-party payor. Provider shall cause Dentists to participate in the development of such programs and to comply with
the standards, protocols or practice guidelines established thereby, provided that such programs do not interfere with Provider’s
independent professional judgment or require the Provider to act in a manner which violates the professional standards for dentistry.
2.19
Compliance. Manager shall assist Provider to operate in compliance with all laws and develop a comprehensive corporate compliance
plan for Provider and implement same. Manager shall assist Provider in establishing a culture that fosters the prevention, detection
and resolution of instances of misconduct. Manager shall provide reasonably necessary compliance training to Provider Dentists and Licensed
Personnel. Manager shall ensure compliance with the corporate compliance plan by the Non-Dentist Personnel.
2.20
Patient Dental Records. Manager shall assist Provider in the completion, maintenance and storage of patient dental records, including
by providing Provider Dentists with the administrative support necessary to complete dental records and periodically reviewing dental
records to confirm completeness. With regard to the privacy of medical (and dental) records, Manager shall, in consultation with and
the approval of Provider, establish plans, policies and/or procedures that comply with the Health Insurance Portability and Accountability
Act of 1996 and regulations promulgated thereunder, as the same may be from time to time amended (“HIPAA”), including the
Standards for Privacy of Individually Identifiable Health Information, the Security Standards for the Protection of Electronic Protected
Health Information and the Standards for Electronic Transactions and Code Sets promulgated pursuant to HIPAA and any laws of any state
where Provider conducts business relating to patient privacy and/or the security, use or disclosure of health care records.
2.21
Disclaimer. To the extent Manager provides Provider with equipment or Offices, Provider acknowledges that Manager is not the manufacturer
of the Equipment or the manufacturer’s agent or the developer, architect or owner of the Offices and Manager will “pass-through”
to Provider any applicable warranties of the manufacturer. ACCORDINGLY, PROVIDER HEREBY AGREES TO TAKE THE OFFICES, IF ANY, AND
EQUIPMENT, IF ANY, IN AN “AS IS” CONDITION. MANAGER HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EITHER
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE EQUIPMENT OR THE OFFICES, INCLUDING WITHOUT LIMITATION, THE DESIGN
OR CONDITION OF THE OFFICES AND THE EQUIPMENT AND THE OFFICES AND THE EQUIPMENT’S MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP, OR AS TO PATENT INFRINGEMENT OR THE LIKE.
2.22
Use of Third Parties, Affiliates and Subsidiaries. In connection with Manager’s provision of any management, administrative,
business, billing and other services described in this Agreement, Provider hereby authorizes Manager to furnish personnel employed by
third parties or any affiliates or subsidiaries of Manager, or otherwise arrange for the provision of such services through third parties
or any affiliates or subsidiaries of Manager in connection with the provision of such services, in Manager’s sole discretion.
3. Professional
Control Retained by Provider. Provider shall be responsible for and shall have complete authority, supervision and control
over its provision of Professional Services, exercise of independent professional judgment, and compliance with the professional standards
for dentistry. Any purported delegation of authority by Provider to Manager that would require or permit Manager to engage in the practice
of dentistry, interfere with Provider’s independent professional judgment, require the Provider to act in a manner which violates
the professional standards for dentistry, or provide Professional Services shall be prohibited and deemed ineffective, as Provider shall
have the sole authority, management and control with respect to such matters. Manager shall not be required or permitted to engage in,
and Provider shall not request Manager to engage in, activities that constitute the practice of dentistry in jurisdictions in which
Provider furnishes dental care. To the extent that any services to be provided by Manager hereunder would otherwise exceed the scope
of services that an administrative service organization may lawfully provide pursuant to applicable law, this Agreement shall automatically
be amended to remove the offending term(s). Manager shall not direct, control, influence, restrict or interfere with the exercise of
independent clinical, dental or professional judgment by Provider or any Dentist or other Licensed Personnel employed or engaged by Provider
in providing Professional Services. In furtherance thereof, Manager shall not engage in any activity that involves the unlicensed practice
of dentistry, including but not limited to the following:
3.1 assignment
of Dentists to treat patients;
3.2 assumption
of responsibility for the care of patients, including the treatment options available;
3.3 determining
what diagnostic tests or treatments are appropriate for a particular condition;
3.4 determining
the need for referrals to or consultation with another dentist/specialist;
3.5 determining
the type, extent, availability, or quality of dental or other dental services;
3.6 determining
the type of dental materials available, prescribed, or dispensed;
3.7 controlling
the volume of patients;
3.8 determining
fee schedules for dental services and materials, and the establishment thereof, including billing methods;
3.9 controlling
information disseminated to the public regarding dental services;
3.10
diagnosing, treating, prescribing, or operating for any disease, pain, deformity, deficiency, injury, or physical condition of the human
tooth, teeth, alveolar process, gums or jaw, or adjacent or associated structures and
3.11
any activity that involves the practice of dentistry and the provision of professional dental services under applicable legal requirements
or that would cause Manager to be subject to licensure under the applicable state laws and regulations.
4. No
Inducement: No Income Guarantee. Manager and Provider agree that they have reached agreement regarding the terms and conditions
of this Agreement in accordance with a good faith determination of the fair market value thereof. Manager shall neither have nor exercise
any control or direction over the number, type, or recipient of patient referrals and nothing in this Agreement shall be construed as
directing or influencing such referrals. Nothing in this Agreement is to be construed to restrict the professional judgment of Provider
or any Dentist to use any facility where necessary or desirable in order to provide proper and appropriate treatment or care to a patient
or to comply with a patient’s wishes. No part of this Agreement shall be construed to induce, encourage, solicit or reimburse
the referral of any patients or business. The Parties acknowledge that neither this Agreement nor any other agreement between the Parties
requires or encourages the referral of patients to one another or any of their respective affiliates. Each Party represents and warrants
to the other that no payment made under this Agreement shall be in return for the referral of patients or business. Furthermore, Manager
has not guaranteed to Provider that the arrangements contemplated hereunder will guarantee any amount of income to Provider.
5. Relationship
of the Parties. The Parties expressly understand and agree that nothing contained in this Agreement shall be construed to create
a joint venture, partnership, association or other affiliation or like relationship between the Parties, it being specifically agreed
that their relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement.
The Parties agree that their respective employees shall not have any claim under this Agreement or otherwise against the other Party
or any of the other Party’s affiliates for vacation pay, paid sick leave, retirement benefits, social security, workers’
compensation, health, disability, professional malpractice or unemployment insurance benefits or other employment benefits of any kind.
6. Responsibilities
of Provider.
6.1 Dentists
and Licensed Personnel. Provider shall have the authority to engage (whether as employees or as independent contractors), manage,
control, promote, discipline, suspend and terminate the services of Dentists and, to the extent required by applicable law, other Licensed
Personnel, provided however, Provider shall retain that number of Dentists and other Licensed Personnel as are reasonably necessary and
appropriate for the provision of the Professional Services as mutually agreed on by Manager and Provider. Provider shall establish salary
and fringe benefits for Dentists in consultation with Manager and consistent with prior budget planning. Manager shall establish salary
and fringe benefits for other non-Licensed Personnel in consultation with Provider. Nothing contained herein shall limit Provider’s
duty and obligation to control all aspects of the practice of dentistry, including, without limitation, clinical training and clinical
supervision of the Dentists, Licensed Personnel, and the care and safety of patients. Manager shall neither control, manage, nor direct
any Dentist or other Licensed Personnel in the performance of Professional Services. Notwithstanding the foregoing, Manager shall have
the ability, as part of the Services, to develop guidelines, subject to Provider’s review and approval, for the hiring or retention
of Dentists and Provider covenants to hire or retain as well as terminate Dentists in accordance with such guidelines. With the assistance
of Manager, Provider shall establish work schedules for all Dentists necessary to ensure adequate coverage; provided that Manager shall
control all decisions relating to Non-Dentist Personnel. Provider shall have full responsibility for and shall supervise, manage and
control all dental services provided by Non-Dentist Personnel.
6.2 Licenses,
Certifications, Standards of Care. Provider shall require each Dentist and Licensed Personnel employed or engaged by Provider
to (a) maintain without restriction all licenses, certifications, registrations and professional liability insurance necessary to
provide the Professional Services; (b) perform all Professional Services in accordance with all laws and with prevailing and applicable
standards of care and professional standards for dentistry, and in accordance with the Policies (subject to the exercise of independent
professional judgment in accordance with Section 3 herein); and (c) maintain his or her skills through continuing education
and training.
6.3 Peer
Review. Provider shall implement appropriate peer review and corrective action procedures for the Dentists and Licensed Personnel
employed or engaged by Provider. Provider shall provide Manager with prompt notice of any complaints relating to any Dentists or Licensed
Personnel arising out of the Professional Services rendered.
6.4 Actions
Requiring Manager’s Approval. Notwithstanding anything herein to the contrary, Provider delegates to Manager the following
actions, and consistent with such delegation agrees that Provider shall not take any such action without the prior written approval of
Manager:
(a) the
issuance of, or agreement to issue, equity of Provider or of any security convertible into Provider equity;
(b) the
payment of any dividends on Provider’s equity or other distribution to Holder;
(c) any
sale, assignment, pledge, lease, exchange, transfer or other disposition, including, without limitation, a mortgage or other security
device, of assets or leases, including Provider’s accounts receivable;
(d) any
purchase or other acquisition of assets at any aggregate cost to Provider exceeding Five Thousand Dollars ($5,000);
(e) any
incurrence of loans or other indebtedness by Provider, or any grant of a lien, security interest or other encumbrance on the assets of
Provider;
(f) any
reclassification or recapitalization of equity of Provider;
(g) any
redemption or purchase of any equity of Provider;
(h) any
amendment to the governing documents of Provider;
(i) the
dissolution or liquidation of Provider;
(j) the
entering into of any contract by Provider committing Provider to incur more than Five Thousand Dollars ($5,000) in expenses on an annual
basis (in addition to complying with any internal approval processes in respect of cash expenditures or otherwise); and
(k) the
creation or any indebtedness or any other obligation of Provider to Holder.
6.5 Continuing
Education. Provider shall ensure that each Dentist and Licensed Personnel shall obtain the required continuing professional
education for his or her specialty in each state where such Dentist or Licensed Personnel provide professional services and shall provide
documentation of the same to Manager.
6.6 Disciplinary
Actions. Provider shall, and shall require each of its Dentists or Licensed Personnel to, disclose to Manager during the term
of this Agreement: (a) the existence of any proceeding instituted by any plaintiff, governmental agency, health care facility, peer review
organization or professional society which involves any allegation of substandard care, mistake, negligence or professional misconduct
raised against any Dentist, (b) the existence of any administrative process or other proceeding pursuant to which the credentialed
status of any Dentist may be revoked or restricted, and (c) the exclusion of any Dentist, Licensed Personnel or Provider from participation
in any federal or state health care program or any third-party payor’s provider network.
6.7 Outside
Activities. Provider and its Dentists shall devote their best efforts to fulfill their obligations hereunder. Provider and
its Dentists shall not engage in any other professional activity, whether or not such business activity is pursued for gain, profit,
or other pecuniary advantage, which would interfere with the performance of Provider’s duties hereunder, without the prior written
consent of Manager, which consent shall not be unreasonably withheld.
7. Compliance.
The parties agree to cooperate with one another in the fulfillment of their respective obligations under this Agreement, and to comply
with the requirements of law and with all ordinances, statutes, regulations, directives, orders, or other lawful enactments or pronouncements
of any federal, state, municipal, local or other lawful authority applicable to Provider or Manager.
8. Payments
and Fees.
8.1 Management
Fee. As compensation for the Services provided by Manager under this Agreement, Provider shall pay to Manager a Management
Fee as set forth in Exhibit B. Manager shall withdraw the Management Fee for each full or partial month of Services provided
during the Term from Provider’s bank account on the 15th day of each following month. Manager shall furnish Provider with a monthly
statement detailing the Management Fee and all expenses and compensation due to Manager for the immediately preceding month.
8.2 Re-Negotiation
of Management Fee. Commencing on the Effective Date, the Management Fee shall increase automatically by [******************]
annually, unless otherwise agreed upon in writing by the parties. Notwithstanding the foregoing, either Provider or Manager may request
that the Management Fee be renegotiated every six (6) months (“Renewal Date”) starting from the six-month anniversary
of the Effective Date. Either Provider or Manager may provide notice of its desire to renegotiate the Management Fee by sending written
notice to the other Party setting forth its intent to renegotiate the Management Fee. Upon a Party’s receipt of a written notice
from the other Party to renegotiate the Management Fee, the Parties shall have a period of thirty (30) days after the Renewal Date in
which to negotiate in good faith an adjustment to the Management Fee. If the Parties agree on a new Management Fee, Exhibit B
shall be revised to reflect the revised Management Fee. However, if the Parties are unable to reach a mutual agreement in writing of
a renegotiated Management Fee by the expiration of such thirty (30) day period, the existing Management Fee will remain in place.
8.3 Reimbursement
of Costs and Expenses. In addition to the Management Fee, Manager shall be entitled to full reimbursement (without mark-up)
for all costs, expenses and liabilities paid or satisfied by Manager in connection with its provision of Services under this Agreement
or otherwise arising out of the operation, ownership or maintenance of the business of Provider, including, without limitation, expenses
incurred by Manager pursuant to Leases for Practice Space entered into by Manager or assigned by Provider to Manager. Manager shall submit an
invoice to Provider for all such costs and expenses. Each such invoice shall state with reasonable detail the costs and expenses that
were incurred by Manager.
8.4 Assignment
to Manager. To the extent permitted by applicable law and payor contractual provisions, Provider assigns to Manager all of Provider’s
rights and interests in all revenues of Provider such that all revenues of Provider shall be paid to and collected by Manager during
the Term of this Agreement; provided, however, that no assignment shall be made of any such rights or interests, the assignment of which
is prohibited by law (for example, amounts receivable from state and federal health care programs (e.g., Medicare, Medicaid or TRICARE)).
Provider hereby issues a standing instruction, which it shall confirm upon written request from time to time, that all payments (excluding,
however, state and federal health care program payments) due to Provider shall be remitted directly to Manager as its agent and attorney-in-fact
hereunder.
8.5 Application
of Payments. Provider hereby directs Manager to apply Provider’s revenues monthly for the following purposes, in the order
of priority set forth below:
(a) to
pay any refunds or other amounts owed to patients or third party payors as reasonably approved by Provider;
(b) to
pay all cumulative direct costs and expenses of operating Provider’s business, including, without limitation, insurance premiums,
payroll and benefits for Provider employees, marketing expenses, supply expenses, equipment purchase and lease expenses, auditing and
tax preparation fees and fees of professional advisors, such as attorneys;
(c) to
pay all cumulative direct or indirect expenses incurred by Manager (including, without limitation, an allocable percentage of Manager’s
corporate overhead) in providing the Services, including, without limitation, expenses relating to the Billing and Collection Services,
and in carrying out its duties hereunder on behalf of Provider; and
(d) to
pay Manager the Management Fee.
8.6 Evaluation
of Reasonableness. The Management Fee reflects the fair market value of Manager’s Services. Payment of the Management Fee is
not intended to be and shall not be interpreted or applied as permitting Manager to share in Provider’s fees for the Professional
Services, and is acknowledged as the Parties’ negotiated agreement as to the reasonable fair market value of the Services furnished
by Manager pursuant to this Agreement and related agreements, considering the nature and extent of the Services required and the investment
made by Manager.
8.7 Default.
Any failure by Provider to pay any amounts due hereunder shall constitute a default hereunder (a “Default”). Upon
the occurrence of a Default, in addition to all rights and remedies set forth in this Agreement, Manager may exercise from time to time
any rights and remedies available to it by law or in equity, including the rights and remedies set forth in the Uniform Commercial Code
as in effect from time to time in the jurisdictions in which Provider furnishes dental care.
9. Required
Notices.
9.1 Provider
will give notice to Manager promptly upon becoming aware of the occurrence of the following:
(a) the
commencement of a case or proceeding against Provider or any Dentist seeking a decree or order in respect of Provider (i) under
Title 11 of the United States Code, as now constituted or hereafter amended or any other applicable federal, state or foreign bankruptcy
or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official)
for Provider or of any substantial part of any such Person’s assets, or (iii) ordering the winding-up or liquidation of the
affairs of Provider, and such case or proceeding shall remain undismissed or unstayed for sixty (60) days or more or such court shall
enter a decree or order granting the relief sought in such case or proceeding;
(b) (i) the
filing of a petition seeking relief under Title 7 or 11 of the United States Code, as now constituted or hereafter amended, or any other
applicable federal, state or foreign bankruptcy or other similar law by Provider, (ii) the failure to contest in a timely and appropriate
manner or consenting to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of Provider, or of any substantial
part of any such Person’s assets, (iii) the making of an assignment for the benefit of creditors by or on behalf of Provider,
(iv) the taking of any company action in furtherance of any of the foregoing by Provider; or (v) the admission in writing of
its inability to, or shall be generally unable to, pay its debts as such debts become due by Provider;
(c) the
loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by Provider;
(d) the
commencement of any proceeding before any governmental authority seeking a determination that this Agreement or the Stock Transfer Restriction
Agreement, substantially in the form set forth on Exhibit C, dated of even date herewith, by and between Provider and Holder
(the “Stock Transfer Restriction Agreement”) and together with this Agreement, the “Management Services Documents”,
pertaining or related to Provider is invalid or unenforceable;
(e) the
occurrence of any damage to, or loss, theft or destruction of, any material assets of Provider, or any strike, lockout, labor dispute,
embargo, condemnation, pandemic, declared governmental emergency, act of God or public enemy, or other casualty, or any order or injunction
of any court or any administrative or regulatory agency which in any of the foregoing cases causes, for more than five (5) consecutive
business days, the cessation or substantial curtailment of revenue producing activities of Provider if such event or circumstance is
not covered by business interruption insurance;
(f) any
breach or default by Provider under any Management Services Documents to which it is a party or under any agreement, document or instrument
to which it is a party evidencing indebtedness or an amount due in excess of $500,000;
(g) the
failure of the shares of Provider to be subject to the Stock Transfer Restriction Agreement;
(h) the
commencement of any litigation or proceeding against Provider or Holder that (i) seeks damages in excess of $50,000, (ii) seeks
injunctive relief, or (iii) alleges criminal misconduct by Provider, Manager and any of their respective affiliates; or
(i) the
attachment, seizure, levy or becoming subject to a writ or distress warrant of assets with a fair market value of $50,000 or more in
the aggregate of Provider or such assets coming within the possession of any receiver, trustee, custodian or assignee for the benefit
of creditors of Provider and such condition continues for ten (10) days or more.
10. Term
and Termination.
10.1
Term. This Agreement shall have an initial term commencing as of the Effective Date and continuing in full force and effect for thirty
(30) years (the “Initial Term”) and shall renew automatically for additional five (5) year terms thereafter,
unless terminated as provided herein (the Initial Term and any subsequent terms shall be referred to as the “Term”).
10.2
Termination By Manager Without Cause. Manager may terminate this Agreement at
any time without cause upon sixty (60) days advance written notice to Provider.
10.3
Immediate Termination By Manager. Manager shall have the right, but not the obligation, to terminate this Agreement immediately
upon notice to Provider of any of the following events:
(a) the
cancellation or non-renewal of the professional or malpractice insurance of Provider or any employee of Provider;
(b) the
dissolution of Provider;
(c) the
suspension or exclusion of Provider or any employee of Provider from any state or federal health care program (e.g., Medicare, Medicaid
or TRICARE);
(d) the
date upon which any of the stock in Provider held is transferred or attempted to be transferred voluntarily, by operation of law or otherwise,
to any person without the prior approval of Manager;
(e) the
merger, consolidation, reorganization, sale, liquidation, dissolution, or other disposition of all or substantially all of the stock
or assets of Provider without the prior written approval of Manager;
(f) failure
of Provider to pay the Management Fee in the time frames set forth in Article 8 hereof; or
(g) Provider’s
breach of any provision of Article 12 herein.
10.4
Immediate Termination By Provider. Provider shall have the right, but not the obligation, to terminate this Agreement immediately
upon notice to Manager of the suspension or exclusion of Manager or any of Manager’s Affiliates from any state or federal health
care program (e.g., Medicare, Medicaid or TRICARE), or if the Manager or any of Manager’s Affiliates is convicted of, or pleaded
guilty or nolo contendere to any crime listed in 42 U.S.C. § 1320a-7 and such person remains affiliated with Manager in any
capacity for thirty (30) days after written notice of such event. For purposes of this Section, Manager’s Affiliates means any
person or entity that directly or indirectly through one or more intermediaries controls Manager or any person or entity that directly
or indirectly, beneficially owns at least fifty percent (50%) of Manager’s outstanding equity securities.
10.5
Termination By Either Party. This Agreement may be terminated as follows:
(a) by
mutual written agreement of the Parties;
(b) by
either Party immediately upon the filing of a petition in bankruptcy or the insolvency of the other Party that is not discharged or dismissed
within ninety (90) days of such filing;
(c) by
either Party upon a material breach of a provision hereof by the other Party, provided that such breach continues for a period of thirty
(30) days after written notice thereof, which shall set forth with particularity the reason(s) for such breach) has been given by
the non-breaching Party to the other Party; or
(d) by
either Party as specifically herein provided.
10.6
Termination Obligations. In the event of termination or expiration of this Agreement, Provider shall pay all Management Fees and
costs and expenses owing to Manager hereof up through and including the date of termination or expiration. In the event of termination
or expiration of this Agreement, Manager will, upon request by Provider, immediately provide Provider a hard copy and electronic copy,
of all Provider-related billing, collection, accounts receivable, financial, personnel, and practice management data and information
maintained by Manager in electronic form. Furthermore, after termination or expiration of this Agreement, the Parties shall reasonably
cooperate with one another, and provide each other access to such books, records and information as either party may reasonably request,
for purposes of defending against any subpoena, government or third-party payor investigation, audit, or any lawsuit or proceeding instituted
by any third party and relating to any alleged or actual acts or omissions of either Party during the term of this Agreement, or for
any other legitimate purpose.
10.7
Effect of Termination. In the event of termination or expiration of this Agreement, Provider shall no longer have any right to
the equipment, supplies, personnel and Services provided by Manager hereunder and Provider shall no longer have the right to use or otherwise
benefit from the Confidential Information (as such term is defined in Section 12.2 herein) in any form or fashion. Subject
to Section 10.5 and Section 11.4, Provider shall immediately return to Manager any equipment, records and other
items provided hereunder (including all copies thereof) and cease using any of the Confidential Information. In the event of termination
under this Article 10, the Parties will not enter into another agreement for the Services on materially different financial
terms prior to the one (1) year anniversary of the Effective Date. No damages shall be owed or paid by one Party to the other Party
in connection with a termination of this Agreement.
11. Records
And Record Keeping.
11.1
Access to Information. Provider hereby authorizes and grants to Manager full and complete access to all information, instruments
and documents relating to Provider that may be reasonably requested by Manager to perform its obligations hereunder, and shall disclose
and make available to representatives of Manager for review and photocopying all relevant books, agreements, papers and records of Provider.
Provider shall, at all times during the Term and at all times thereafter, make available to Manager for inspection by its authorized
representatives, during regular business hours, at the principal place of business of Provider, any Provider records determined by Manager
to be necessary to perform the Services and carry out its responsibilities hereunder or necessary for the defense of any legal or administrative
action or claim relating to said records.
11.2
Manager’s Records and Systems. At all times during and after the Term of this Agreement, all business records and information,
including, without limitation, all books of account and general administrative records and all information generated under or contained
in the management information system pertaining to Provider, relating to the business and activities of Manager, shall be and remain
the sole property of Manager. Provider acknowledges that Manager is the sole owner of any proprietary electronic records systems/software
and that Provider shall have no license or other right to copy, use, or transfer any rights to such systems/software, except for the
right of access to the patient medical and dental records as set forth herein as required by law and as necessary to provide the Professional
Services.
11.3
Confidentiality of Records. Manager and Provider will adopt procedures to assure the confidentiality of the records relating to
the operations of Manager and Provider, including, without limitation, all statistical, financial and personnel data related to the operations
of Manager and Provider that is not otherwise available to third parties publicly or by law.
11.4
Maintenance, Retention and Storage of Records. Manager’s
Services shall include oversight of the maintenance and storage of all patient dental records of Provider in its possession in accordance
with applicable law. Manager shall maintain electronic copies of patient dental records for a minimum of seven (7) years from the
last date of service to the patient, and longer if required by law, required by any third party payor or necessary to protect the interests
of Provider. Provider shall have access to all patient medical and dental records as necessary to defend against any subpoena, government
or third-party payor investigation, audit, or any lawsuit or proceeding instituted by any third party and relating to any alleged or
actual acts or omissions of Provider, or for any other legitimate purpose. Following the termination of this Agreement for any reason,
Manager will return in electronic format all patient medical and dental records to Provider.
11.5
Privacy and Security of Patient Records. The Parties agree to discharge their respective duties hereunder in accordance with the
applicable provisions of HIPAA and all applicable state and federal laws governing the privacy and security of dental records. In furtherance
of the foregoing, the Parties shall execute the HIPAA Business Associate Agreement attached hereto as Exhibit D.
12. Protective
Covenants.
12.1
Confidential Information. The Parties expressly acknowledge that, pursuant to this Agreement, each Party and its respective officers,
directors, employees, agents and contractors will be given access to, and be provided with, business methods, trade secrets and
other proprietary information of the other Party in connection with their respective duties and activities. Each Party expressly acknowledges
and agrees that Confidential Information, as defined below in Section 12.2, is proprietary and confidential and if any of
the Confidential Information was imparted to or became known by any persons engaging in a business in any way competitive with that of
the other Party, including, without limitation, the Party receiving Confidential Information and its officers, directors, employees,
agents and contractors, such disclosure would result in hardship, loss, irreparable injury and damage to the non-disclosing Party, the
measurement of which would be difficult, if not impossible, to determine. Accordingly, each Party expressly agrees that the other Party
has a legitimate interest in protecting the Confidential Information and its business goodwill, that it is necessary for each Party to
protect its business from such hardship, loss, irreparable injury and damage, that the following covenants are a reasonable means by
which to accomplish those purposes, and that violation of any of the protective covenants contained herein shall constitute a breach
of trust and is grounds for immediate termination of the Agreement and for appropriate legal action for damages, enforcement and/or injunction.
12.2
Trade Secrets, Proprietary and Confidential Information. For purposes
of this Agreement, “Confidential Information” is information obtained by a Party from or regarding the other Party
and includes, without limitation: (a) lists containing the names of past, present and prospective clients, patients, or suppliers;
(b) the past, present and prospective methods, procedures and techniques utilized in identifying prospective clients or patients
and in soliciting the business thereof; (c) the past, present and prospective methods, procedures and techniques used in the operation
of the Party’s business, including, without limitation, the methods, procedures and techniques utilized in marketing, provision
of services and pricing; (d) compilations of information, records and processes which are owned by a Party and/or which are used
in the operation of the Party’s business; and (e) any information directly or indirectly obtained pursuant to this Agreement;
provided, however, that (i) Confidential Information shall in no event include Confidential Information (A) which was generally
available to the public at the time of disclosure by the Party or (B) which becomes publicly available other than as a consequence
of the breach by the Party of the Party’s confidentiality obligations hereunder, and (ii) disclosure or release of such Confidential
Information shall not be a breach of this Agreement if a court of competent jurisdiction orders its disclosure or release.
12.3
Restrictive Covenants.
(a) Non-Competition.
Provider hereby irrevocably appoints Manager as its agent and attorney-in-fact during the term of this Agreement with full power
and authority to enforce the terms of any employment or independent contractor agreements to which it is a party and any noncompetition,
confidentiality and similar covenants or restrictions of which it is the beneficiary. Provider will require its Dentists to execute a
document confirming the applicable Dentist’s agreement with such restrictive covenant terms as are approved by Manager. During
the term of this Agreement, Provider and Holder shall not establish, operate or provide dental services at any office, clinic or other
health care facility providing services substantially similar to those provided by Provider pursuant to this Agreement anywhere within
25 miles of any facility operated by Manager without the express written consent of Manager.
(b) Non-Solicitation;
Non-Disparagement; Goodwill. The Parties agree that each shall not, during the Term and for two (2) years following termination
or expiration of this Agreement, for any cause whatsoever, directly or indirectly, take any action that constitutes, results or
may reasonably be expected to result in: (a) soliciting, diverting or interfering with any relationship that either Party or any
of its affiliates has with any patients, dental care providers or suppliers; (b) soliciting the termination of, or diverting or
interfering with any relationship that either Party has with any person or entity affiliated with it or any of its affiliates as an independent
contractor, supplier or provider; (c) entering into any agreement, the purpose of which would violate this Section 12.3;
(d) soliciting, inducing or encouraging any individual employed or engaged by or affiliated with the other Party or any of its affiliates
(presently or in the then most recent twelve (12) month period) to curtail or terminate such affiliation or employment, or take any action
that results in, or might reasonably be expected to result in any employee or contractor ceasing to perform services for the other Party
or its affiliates; or (e) disparaging the other Party or any of its officers, directors, employees or affiliates. The Parties shall
portray each other in a positive light to the general public. Nothing in this Section 12.3 is intended to prohibit ordinary
course employment decisions or the placement of general advertisements for employment, or to prohibit either Party or any of its affiliates
who is a practicing dentist from engaging in the professional practice of dentistry or exercising such person’s independent dental
judgment, without consideration for any pecuniary interests of said dentist, nor to require the referral of any patients for any service
provided by either Party or its affiliates.
12.4
Survival of Protective Covenants. Each covenant herein shall be construed as an agreement independent of any other provision of
this Agreement, unless otherwise indicated herein, and shall survive the termination of this Agreement, and the existence of any claim
or cause of action of either Party against the other Party, whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement of such covenant.
12.5
Extension of Restrictive Periods. If a Party violates the protective covenants set forth in this Article 12 and the
aggrieved Party brings legal action for injunctive or other relief hereunder, the aggrieved Party shall not, as a result of the time
involved in obtaining the relief, be deprived of the benefit of the full restrictive periods of the protective covenants contained in
this Article 12. Accordingly, such restrictive periods for the purposes of this Article 12 shall be deemed to
have a duration of the respective time periods stated in this Article 12 computed from the date relief is granted, but reduced
by the time between the period when the restriction began to run and the date of the first violation of the covenant by such Party.
12.6
Specific Performance and Other Remedies. The Parties understand and acknowledge that violation of this Article 12
will cause irreparable harm to the non-violating Party, the exact amount of which will be impossible to ascertain, and for that reason
the Parties agree that a Party shall be entitled to seek, without the necessity of showing any actual damage or posting a bond (unless
required by law), from any court of competent jurisdiction temporary or permanent injunctive relief and/ or specific performance of this
Agreement restraining a Party or any person from any act prohibited by this Article 12. Nothing in this Section 12.6
shall limit a Party’s right to recover any other damages or remedies to which it is entitled as a result of the other Party’s
breach. If any one or more of the provisions of this Article 12 or any word, phrase, clause, sentence or other portion of
this Article 12 shall be held to be unenforceable or invalid for any reason, such provision or portion of provision shall
be modified or deleted in such a manner so as to make this Article 12, as modified, legal and enforceable to the fullest
extent permitted under applicable law.
13. Indemnification.
13.1
Provider Indemnification. Provider hereby agrees to defend, indemnify and hold Manager and its affiliates and their respective
officers, employees, shareholders, successors and assigns (“Manager Indemnified Parties”) harmless from and against
any and all liabilities, causes of action, damages, losses, demands, claims, penalties, judgments, costs and expenses (including, without
limitation, reasonable attorneys’ fees and related costs) of any kind or nature whatsoever (“Losses”) that may
be sustained or suffered by any Manager Indemnified Party in any way caused by or arising from Provider’s gross negligence, fraud
or willful or intentional or negligent misconduct related to its operations, provision of Professional Services or any material breach
by Provider of any of its representations, warranties, covenants, obligations or duties under this Agreement, to the extent such Losses
are not covered by Provider’s insurance.
13.2
Manager Indemnification. Manager hereby agrees to defend, indemnify and hold Provider, Holder and their respective affiliates
and their respective managers, members, officers, employees, shareholders, successors and assigns (“Provider Indemnified Parties”)
harmless from and against any and all Losses that may be sustained or suffered by any Provider Indemnified Party in any way caused by
Manager’s gross negligence, fraud or willful or intentional or negligent misconduct related to its provision of Services or any
material breach by Manager of any of its representations, warranties, covenants, obligations or duties under this Agreement, to the extent
such Losses are not covered by Manager’s insurance.
13.3
Manager Release and Indemnification of Holder.
(a) Manager
hereby waives and releases its right to sue Holder for any claim, right, or cause of action which may arise against Holder, as sole shareholder
or sole member of Provider, pursuant to the terms of this Agreement, as of the Effective Date and up through the end of time except as
otherwise caused by Holder’s fraud or willful or intentional misconduct. In that regard, Manager hereby holds harmless, fully and
forever remises, releases and discharges Holder of and from any and all claims, demands, agreements, contracts, covenants, actions, suits,
causes of action, obligations, controversies, debts, costs, expenses, accounts, damages (whether actual, compensatory, direct, consequential,
or punitive), judgments, losses and liabilities of whatever kind or nature, in law, equity or otherwise whether known or unknown, whether
concealed or hidden, which it may have for or by reason of any matter, cause, or thing whatsoever, from the Effective Date up to the
end of time except as a result of Holder’s fraud or willful or intentional misconduct.
(b) Notwithstanding
the provisions of Section 13.1, Manager hereby agrees to defend, indemnify and hold Holder harmless from and against any
and all Losses that may be sustained or suffered by Holder in connection with Holder’s role as sole member, manager, director,
officer, employee or agent of Provider except as a result of Holder’s fraud or willful or intentional misconduct. Costs and expenses
incurred by the Holder in defense of any litigation giving rise to any such Losses (including attorneys’ fees) shall be paid by
Manager in advance of the final disposition of such litigation upon receipt by Manager of: (i) a written request for payment; (ii) appropriate
documentation evidencing the incurrence, amount, and nature of the costs and expenses for which payment is being sought; and (iii) an
undertaking adequate under applicable law made by or on behalf of Manager to repay the amounts so paid if it shall ultimately be determined
that Holder is not entitled to be indemnified by Manager under this Agreement.
(c) Survival.
The provisions of this Article 13 shall survive the termination of this Agreement for the duration of the applicable
statute of limitation.
14. Exclusivity.
During the Term of this Agreement, Manager shall serve as Provider’s sole and exclusive manager, and Provider shall not engage
any other persons to perform any of the duties or functions that Manager is explicitly required to provide hereunder or that are reasonably
expected to be able to be provided by a manager of a dental care practice.
15. Notices.
All notices, requests, consents, and other communications provided for by this Agreement shall be in writing, shall be addressed to the
receiving Party’s address set forth below or to such other address as a Party may designate by notice hereunder, and shall be either:
(a) delivered by hand, (b) sent by recognized overnight courier, or (c) sent by certified mail, return receipt requested,
postage prepaid to such address as each Party shall provide the other Party from time to time. Notice shall be deemed given (i) upon
delivery, if hand delivered, (ii) on the next business day, if sent next day delivery by a recognized overnight courier, and (iii) if
sent by certified mail, five (5) business days following the day such mailing is made.
16. Entire
Agreement: Amendment. This Agreement, together with the Employment Agreement, dated of even date herewith, by and between Provider
and Holder (the “Employment Agreement”), and that certain Stock Transfer Restriction Agreement contain the entire
agreement between the Parties hereto. In the event of a conflict between the Employment Agreement and this Agreement, then this Agreement
shall preempt the Employment Agreement except with respect to those matters that would reasonably result in Manager engaging in the practice
of or dentistry. No amendment, alteration or modification of this Agreement shall be valid unless in each instance such amendment, alteration
or modification is expressed in a written instrument duly executed in the name of the Party or Parties making such amendment, alteration
or modification.
17. General.
17.1
Duty to Cooperate. The Parties acknowledge that the Parties’ mutual cooperation is critical to the ability of Manager to
perform successfully and efficiently its duties hereunder. Accordingly, each Party agrees to cooperate fully with the other in formulating
and implementing goals and objectives that are in Provider’s best interest.
17.2
Limited Renegotiation.
(a) This
Agreement shall be construed to be in accordance with any and all federal and state laws, including, without limitation, laws governing
the state and federal healthcare programs and private third party payors. In the event there is a change in such laws, whether by statute,
regulation, agency or judicial decision or guidance that has any material effect on any term of this Agreement, then the applicable term(s) of
this Agreement shall be subject to renegotiation, and either Party may request renegotiation of the affected term or terms of this Agreement,
upon written notice to the other Party, to remedy such condition.
(b) The
Parties expressly recognize that upon request for renegotiation, each Party has a duty and obligation to the other only to renegotiate
the affected term(s) in good faith and, further, each Party expressly agrees that its consent to proposals submitted by the other
Party during renegotiation efforts shall not be unreasonably withheld provided such proposals would not materially alter the economic
outcome of the Agreement.
17.3
Choice of Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Minnesota,
without regard to the conflict of law’s provisions thereof. The Parties hereby consent to personal jurisdiction and venue in any
action permitted to be brought in court pursuant to this Agreement in the State of Minnesota. Both Provider and Manager expressly waive
any right that either Party has or may have to a jury trial of any dispute arising out of or in any way related to this Agreement or
any breach thereof.
17.4
Waiver of Breach. The waiver by either of the Parties of a breach or violation of any provision of this Agreement shall not operate
as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof.
17.5
Force Majeure. Neither Party shall be liable or be deemed in default of this Agreement for any delay or failure to perform cause
by Acts of God, war, disasters, strikes, pandemics, governmental emergencies or any similar cause beyond the control of either Party.
17.6
Severability. If any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall
not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms.
17.7
Successors and Assigns. This Agreement shall bind each of the Parties and their respective successors and permitted assignees.
Assignment by Provider or Holder of any rights or obligations under this Agreement without the prior written consent of Manager is expressly
prohibited. Manager is permitted to assign this Agreement or any rights or obligations hereunder to any third party (including any lender
or purchaser of Manager) without the prior written consent of Provider or Holder and any such assignee is an intended third party beneficiary
of this Agreement.
17.8
Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
17.9
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of
which shall be one and the same document.
17.10
Survival. The provisions of Articles 12 and 13 and such other articles and sections of this Agreement which either expressly
or by their natures survive expiration or other termination of this Agreement shall survive such expiration or other termination of this
Agreement until each such provision expires in accordance with its respective terms.
17.11
Construction. This Agreement has been drafted and negotiated jointly by the Parties, and this Agreement will be construed neither
against nor in favor of either Party.
17.12
Exhibits. Any exhibits attached hereto are an integral part of this Agreement and are incorporated herein by this reference.
[Signature page follows]
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the day and year first above written.
| |
MANAGER: |
| |
|
| |
Park Dental Partners, Inc., a
Minnesota corporation |
| |
|
| |
By: |
/s/
Peter G. Swenson |
| |
Name: |
Peter G. Swenson |
| |
Title: |
Chief Executive Officer |
(Signatures Continued
on Following Page)
Signature
Page to Administrative Resources Agreement
IN WITNESS WHEREOF,
the Parties hereto have executed this Agreement, as of the day and year first above written.
| |
PROVIDER: |
| |
|
| |
PDG, P.A., a Minnesota professional corporation |
| |
|
| |
By: |
/s/
Christopher E. Steele |
| |
Name: |
Christopher Steele, D.D.S. |
| |
Title: |
President |
| |
HOLDER: |
| |
|
| |
HOLDER, solely for purposes of Section 1.2(b), Article 12, Section 13.3 and
Article 16 |
| |
|
| |
/s/
Christopher E. Steele |
| |
Christopher Steele, D.D.S., individually |
Signature
Page to Administrative Resources Agreement
EXHIBIT A
PRACTICE LOCATIONS
LEASED DIRECTLY BY PROVIDER
| Location | |
LEASE ID | |
Address | |
City | |
State | |
Zip |
| BlueStone | |
LA0015 NMN-Bluestone | |
906 Woodland Ave | |
Duluth | |
MN | |
55812 |
| Downtown Duluth | |
LA0016 NMN-Duluth - Suite 1111 | |
324 W. Superior St., Ste 1111 | |
Duluth | |
MN | |
55802 |
| Downtown Duluth | |
LA0017 NMN-Duluth - Suite 1130 | |
324 W. Superior St., Ste 1111 | |
Duluth | |
MN | |
55802 |
| Hermantown | |
LA0018 NNN-Hermantown | |
4803 Miller Trunk Highway, Suite B | |
Hermantown | |
MN | |
55811 |
| Albertville | |
LA0021 PDG-Albertville | |
11091 Jason Ave NE #3 | |
Albertville | |
MN | |
55301 |
| Apollo | |
LA0087 PDG-Apollo | |
3000 43rd St NW | |
Rochester | |
MN | |
55901 |
| Apple Valley | |
LA0022 PDG-Apple Valley | |
6520 150th St W #300 | |
Apple Valley | |
MN | |
55124 |
| Bailey Road | |
LA0023 PDG-Bailey Road | |
7774 Hargis Parkway, Suite 104 | |
Woodbury | |
MN | |
55129 |
| Big Lake | |
LA0025 PDG-Big Lake | |
16991 198th Ave | |
Big Lake | |
MN | |
55309 |
| Blaine | |
LA0026 PDG-Blaine | |
12904 Central Ave. N.E. | |
Blaine | |
MN | |
55434-4147 |
| Blaine East | |
LA0027 PDG-Blaine East | |
4190 108th Ave NE, Suite 130 | |
Blaine | |
MN | |
55449 |
| Bloomington | |
LA0028 PDG-Bloomington | |
4200 W Old Shakopee Rd Suite 100 | |
Bloomington | |
MN | |
55437-3934 |
| Brookpark | |
LA0029 PDG-Brookpark | |
6437 Brooklyn Boulevard | |
Brooklyn Center | |
MN | |
55429-2174 |
| Cedar Valley | |
LA0030 PDG-Cedar Valley | |
14135 Cedar Ave #500 | |
Apple Valley | |
MN | |
’55124 |
| Champlin | |
LA0031 PDG-Champlin | |
12180 Business Park Blvd N | |
Champlin | |
MN | |
55316 |
| Chaska | |
LA0032 PDG-Chaska | |
1150 Hazeltine Blvd | |
Chaska | |
MN | |
55318 |
| Como Avenue | |
LA0033 PDG-Como Ave | |
2282 Como Avenue | |
Saint Paul | |
MN | |
55108-1722 |
| Coon Rapids | |
LA0034 PDG-Coon Rapids | |
9145 Springbrook Drive NW, Suite 100 | |
Coon Rapids | |
MN | |
55433-5886 |
| Cottage Grove | |
LA0036 PDG-Cottage Grove - New | |
7430 80th St S #203 | |
Cottage Grove | |
MN | |
55016 |
| Dean Lakes | |
LA0037 PDG-Dean Lakes | |
4155 Dean Lakes Blvd | |
Shakopee | |
MN | |
55379 |
| Eagan | |
LA0038 PDG-Eagan | |
1895 Plaza Drive, Suite 130 | |
Eagan | |
MN | |
55122-2612 |
| Eden Prairie | |
LA0039 PDG-Eden Prairie | |
18315 Cascade Dr #120 | |
Eden Prairie | |
MN | |
55437 |
| Edina | |
LA0040 PDG-Edina | |
6545 France Ave S | |
Edina | |
MN | |
55435 |
| Edinborough Way | |
LA0041 PDG-Edinborough Way | |
3300 Edinborough Way | |
Edina | |
MN | |
55435 |
| Edinbrook | |
LA0042 PDG-Edinbrook | |
8559 Edinbrook Parkway | |
Brooklyn Park | |
MN | |
55443-3728 |
| Elk River | |
LA0043 PDG-Elk River | |
18230 Zane Ave NW | |
Elk River | |
MN | |
55330 |
| Grand Avenue | |
LA0044 PDG-Grand | |
917 Grand Avenue | |
Saint Paul | |
MN | |
55105-3000 |
| Greenview | |
LA0094 PDG-Greenview | |
1801 Greenview Dr SW Suite 101 | |
Rochester | |
MN | |
55902 |
| Hudson | |
LA0045 PDG-Hudson | |
1003 Pearson Drive | |
Hudson | |
WI | |
54016 |
| Hugo | |
LA0046 PDG-Hugo | |
14741 Victor Hugo Blvd N | |
Hugo | |
MN | |
55038 |
| Lakeville | |
LA0047 PDG-Lakeville | |
17436 Kenwood Trail | |
Lakeville | |
MN | |
55044-9219 |
| LaSalle Plaza | |
LA0048 PDG-LaSalle Plaza | |
800 LaSalle Avenue South | |
Minneapolis | |
MN | |
55402-2013 |
| Mac Groveland | |
LA0049 PDG-Mac Groveland | |
Fire Station #14 Professional Building | |
Saint Paul | |
MN | |
55104-6756 |
| Maple Grove | |
LA0050 PDG-Maple Grove | |
9600 Upland Lane North, Suite 200 | |
Maple Grove | |
MN | |
55369-4496 |
| Maplewood | |
LA0051 PDG-Maplewood | |
1600 St Johns Blvd | |
St. Paul | |
MN | |
55109 |
| Marquette | |
LA0052 PDG-Marquette | |
,901 Marquette Avenue S, #230 | |
Minneapolis | |
MN | |
55402 |
| Minnetonka | |
LA0053 PDG-Minnetonka | |
14525
Highway 7, Suite 125 | |
Minnetonka | |
MN | |
55345-4113 |
| Owatonna | |
LA0054 PDG-Owatonna | |
605 Hillcrest Ave Number 210 | |
Owatonna | |
MN | |
55060 |
| Plymouth Lakes | |
LA0056 PDG-Plymouth Lakes | |
1525 County Rd 101 | |
Plymouth | |
MN | |
55447 |
| Plymouth West | |
LA0057 PDG-Plymouth West | |
15535 34th Ave. N, Suite 250 | |
Plymouth | |
MN | |
55447 |
| Radio Drive | |
LA0058 PDG-Radio Drive | |
241 Radio Drive | |
Woodbury | |
MN | |
55125 |
| Resource | |
LA0059 PDG-Resource | |
2200 County Road C West | |
Roseville | |
MN | |
55113 |
| Ridgepark | |
LA0060 PDG-Ridgepark | |
13059 Ridgedale Drive | |
Minnetonka | |
MN | |
55305-1807 |
| Ridges | |
LA0061 PDG-Ridges | |
40 Nicollet Blvd W | |
Burnsville | |
MN | |
55337 |
| Riverdale | |
LA0062 PDG-Riverdale | |
3161 Northdale Blvd | |
Coon Rapids | |
MN | |
55433-1825 |
| Rochester | |
LA0063 PDG-Rochester | |
3780 Marketplace Dr NW, Suite 112 | |
Rochester | |
MN | |
55901 |
| Rosemount | |
LA0064 PDG-Rosemount | |
15015 Cimarron Ave | |
Rosemount | |
MN | |
55068 |
| Roseville | |
LA0065 PDG-Roseville | |
1835 County Road C-West, Suite 220 | |
Roseville | |
MN | |
55113-1835 |
| Salem Square | |
LA0066 PDG-Salem Square | |
5350 South Robert Trail | |
Inver Grove Heights | |
MN | |
55077-1404 |
| Savage | |
LA0067 PDG-Savage | |
14170 Highway 13 South | |
Savage | |
MN | |
55378 |
| Shakopee | |
LA0068 PDG-Shakopee | |
1515 St Francis Ave Suite 145 | |
Shakopee | |
MN | |
55379 |
| Silver Lake | |
LA0069 PDG-Silver Lake | |
2600 39th Avenue NE, Suite 225 | |
St Anthony | |
MN | |
55421-2966 |
| St Croix Valley | |
LA0070 PDG-St Croix | |
13961 60th Street North | |
Stillwater | |
MN | |
55082 |
| St Louis Park | |
LA0071 PDG-St Louis Park | |
5000 West 36th Street | |
Minneapolis | |
MN | |
55416 |
| Woodbury | |
LA0072 PDG-Woodbury | |
10150 City Walk Drive Suite C | |
Woodbury | |
MN | |
55129 |
| Yankee Doodle Road | |
LA0073 PDG-Yankee Doodle | |
1215 Town Centre Drive #150 | |
Eagan | |
MN | |
55123 |
EXHIBIT B
MANAGEMENT FEE
In
consideration of the Services, Provider will pay Manager a monthly management fee (the “Management Fee”) equal to
[**********************************************] of Provider’s total Net Collections for the applicable month.
“Net Collections”
means the actual collected cash receipts of Provider, net of patient and payor refunds and adjustments, and net of any payments to third
party collection agencies.
The Management
Fee shall be payable no later than the tenth (10th) day of the month following the month for which it is due. The Management Fee shall
be pro-rated for any partial month during the Term. Manager is expressly authorized to, and shall, disburse from the Master Accounts
all amounts owed by Provider to Manager pursuant to this Agreement in accordance with the provisions of Section 2.1.
The Parties recognize
that Provider may change in size and scope over the term of this Agreement, which may cause the Management Fee, as adjusted, to no longer
reflect the fair market value of the Services provided pursuant to this Agreement; accordingly, the Parties will review the Management
Fee at least annually and make appropriate adjustments as the Parties may mutually agree to ensure that the Management Fee on a go-forward
basis comports with the fair market value of the increased or decreased demand for Management Services based on material changes to the
size and scope of Provider.
EXHIBIT C
STOCK TRANSFER
RESTRICTION AGREEMENT
STOCK TRANSFER
RESTRICTION AGREEMENT
This
Stock Transfer Restriction Agreement (this “Agreement”), effective__________, 2023, is among PDG, P.A., a Minnesota
professional corporation (the “Company”), Christopher Steele, D.D.S. (the “Holder”) and Park Dental
Partners, Inc., a Minnesota corporation (“Manager”). The Company, the Holder and Manager are collectively referred
to herein as the “Parties”.
RECITALS
A. The
Holder holds the only outstanding shares of the Company (the “Shares”).
B. Manager
and its Affiliates provide certain non-professional management, administrative, advisory and back-office services required to support
the Company’s clinical operations.
C. The
Parties believe that it is in the best interest of the Company to restrict the transferability of the Restricted Securities (as defined
below) to promote the ongoing continuity of the Company for the benefit of the Company’s patients.
AGREEMENT
The Parties hereby agree as
follows:
18. Restrictions
on Transfer. Except as otherwise provided in this Agreement, the Holder may not (voluntarily, involuntarily or by operation of law)
sell, assign, transfer, gift, pledge, hypothecate, encumber or otherwise dispose of (“Transfer”) any of the Shares
currently owned or hereafter acquired by the Holder or any other securities issued in respect thereof (whether by exchange, dividend,
split, reverse split, recapitalization, merger, consolidation or otherwise) (collectively, the “Restricted Securities”).
Any attempted transfer of Restricted Securities in violation of this Agreement will be null and void ab initio.
19. Transfer
of Restricted Securities in Certain Events. If a Transfer Event occurs, then all of the Restricted Securities then-held by the Holder
(or any heir, executor, administrator, personal representative, estate, testamentary beneficiary, donee, trustee in bankruptcy, successor
or assignee of the Holder) will immediately be deemed transferred to the Designated Transferee as of the date of the Transfer Event,
without action by the Holder. With consideration for the best interests of the Company and the continuity of care for its patients, Manager
may specify a future effective date for the transfer of the Restricted Securities to the Designated Transferee and may waive any particular
Transfer Event in its sole discretion; provided, however, that (i) no waiver given will be applicable except in the specific
instance for which it was given and no single waiver will preclude any other or further exercise of Manager’s rights under this
Agreement and (ii) Manager may not waive a Transfer Event occurring on account of the Holder’s disqualification from holding
the Restricted Securities under applicable Law.
19.1
“Transfer Event” means (i) the Holder dies or
becomes incompetent or permanently disabled, (ii) the Holder’s license to practice dentistry in any state is suspended, revoked
or otherwise limited (other than administrative suspensions cured within 60 calendar days) or the Holder otherwise becomes disqualified
from holding the Restricted Securities under applicable Law or the Company’s articles of organization, operating agreement and
other governing documents, (iii) the Holder is debarred, excluded or suspended from participating in any “federal health
care program” as defined in 42 U.S.C. § 1320a-7b(f), subject to a civil monetary penalty assessed under Section 1128A
of the Social Security Act or listed on the General Services Administration published list of parties excluded from federal procurement
programs and non-procurement programs, (iv) the Holder attempts to Transfer any Restricted Securities or cause the Company to transfer
any equity securities of any of its subsidiaries not in compliance with this Agreement, (v) the Company breaches or attempts to
breach any management or business support services agreement then in effect between Manager and the Company or any of its subsidiaries
on account of any action or omission by the Holder, (vi) the Holder becomes insolvent, voluntarily files for bankruptcy or similar
protection from creditors, is subject to an involuntary petition for bankruptcy or similar protection, (vii) any petition or other
document is filed to cause or intended to cause a judicial, administrative, voluntary or involuntary dissolution of the Company or (viii) any
petition or other document is filed seeking judicial or administrative review of, or challenging the enforceability of this Agreement,
the Company’s articles of organization or any other agreement, document or instrument pertaining to the governance, management
or operation of the Company.
19.2
“Designated Transferee” means a licensed professional designated by Manager who is permitted to own the Restricted
Securities under applicable Law as then in effect.
20. Transfer
of Restricted Securities. Upon a Transfer Event, in consideration for the Restricted Securities, the Designated Transferee will pay
to the Holder One Thousand and 00/100 U.S. Dollars ($1,000.00) (the “Purchase Price”), delivered in immediately available
funds within 30 calendar days after the Transfer of the Restricted Securities to the Designated Transferee.
20.1
Notwithstanding the Designated Transferee’s obligation to pay the
Purchase Price to the Holder pursuant to this Section 20 and subject to Section 20.2:
(a) the
Restricted Securities will be immediately deemed Transferred to the Designated Transferee upon a Transfer Event and thereafter the Holder
will only have the right to receive the Purchase Price from the Designated Transferee,
(b) neither
the Holder nor any purported transferee of the Restricted Securities (other than the Designated Transferee) will have or may exercise
any voting, economic or other rights or interests in the Restricted Securities or otherwise with respect to the Company, and
(c) the
Holder will automatically and immediately be deemed to have resigned from all director, limited liability company manager, officer or
other similar positions of the Company that were held by the Holder immediately before the Transfer Event.
20.2
As contemplated in Section 19, the effective date of a Transfer Event may be extended by Manager for a reasonable period
of time as reasonably required to provide any necessary regulatory or contractual notices and obtain any necessary regulatory or contractual
approvals or new licenses and avoid any adverse effect on the continuity of patient care; during any such extended period, the Holder
will hold the Restricted Securities in trust for the benefit of the Designated Transferee and take all commercially reasonable actions
requested by Manager and/or the Company to provide such notices and obtain such approvals or licenses and ensure a smooth transition
of the ownership of the Restricted Securities.
20.3
If the Designated Transferee fails to timely pay the Purchase Price to the Holder in accordance with this Section 20, then
the Holder’s only remedy will be money damages and such failure will not negate or otherwise jeopardize the effectiveness of the
Transfer of the Restricted Securities to the Designated Transferee.
20.4
The Holder has completed in blank the Restricted Securities Transfer Power
attached hereto as Exhibit A to facilitate the agreements set forth herein.
21. New
Securities. The Holder will not cause or otherwise permit the Company to issue any new, substituted or additional securities to any
Person other than the Holder absent the prior written consent of the Parties and subject to the recipient of such new securities first
agreeing in writing that such new securities are subject to the restrictions and obligations in this Agreement applicable to the Restricted
Securities. Any attempted issuance of new securities in violation of this Agreement will be null and void ab initio. The restrictions
contained in this Agreement will apply to any new, substituted or additional securities issued to the Holder in respect of the Restricted
Securities and any other property distributed to the Holder in respect of the Restricted Securities upon any stock dividend, securities
split, reverse securities split, recapitalization, merger, reorganization or other change affecting the Company’s outstanding equity
securities.
22. Subsidiary
Securities. The Holder will not cause or otherwise permit the Company to (a) Transfer any securities of any of the Company’s
subsidiaries (whether now in existence or hereafter created) or (b) authorize or issue any new, substitute or additional securities
to any Person other than the Company. Any attempted transfer or issuance of any securities of a subsidiary of the Company in violation
of this Agreement will be null and void ab initio.
23. Certificate
Legends. All certificates representing Restricted Securities will bear the following legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (a) ARE SUBJECT TO A STOCK TRANSFER RESTRICTION AGREEMENT DATED________________AND
(b) MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ENCUMBERED EXCEPT AS PERMITTED IN ACCORDANCE
WITH SUCH SECURITIES TRANSFER RESTRICTION AGREEMENT. THE RECORD HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY OBTAIN
A COPY OF THE STOCK TRANSFER RESTRICTION AGREEMENT FROM THE COMPANY UPON WRITTEN REQUEST AND WITHOUT CHARGE.
24. Miscellaneous.
24.1
Further Assurances. Each Party will take all further actions and
execute and deliver all further documents that are necessary to comply with the terms of this Agreement.
24.2
Notices. All notices and other communications required or permitted under this Agreement (i) must be in writing, (ii) will
be duly given (A) when delivered personally to the recipient or (B) one Business Day after being sent to the recipient by nationally
recognized overnight private carrier (charges prepaid) and (iii) addressed as follows (as applicable):
If to the Holder, to the most recent
address for the Holder reflected in the Company’s books and records.
| If to Manager: | If
to Company: |
or to such other respective address
as each Party may designate by notice given in accordance with this Section 24.2.
24.3
Entire Agreement. This Agreement constitutes the complete agreement
and understanding among the Parties regarding the subject matter of this Agreement and supersedes any prior understandings, agreements
or representations regarding the subject matter of this Agreement.
24.4
Amendments. The Parties may amend this Agreement only pursuant to a written agreement executed by the Parties.
24.5
Non-Waiver. The Parties’ respective rights and remedies under this Agreement are cumulative and not alternative. Neither
the failure nor any delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further
exercise of such right, power or privilege or the exercise of any other right, power or privilege. No waiver will be effective unless
it is in writing and signed by an authorized representative of the waiving Party. No waiver given will be applicable except in the specific
instance for which it was given. No notice to or demand on a Party will constitute a waiver of any obligation of such Party or the right
of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
24.6
Assignment. No Party may assign this Agreement or any rights under
this Agreement, or delegate any duties under this Agreement, without the other Parties’ prior written consent; provided, however,
that Manager may assign this Agreement or any of its rights under this Agreement or delegate any of its duties under this Agreement
without the consent of the other Parties.
24.7
Binding Effect; Benefit. This Agreement will inure to the benefit of and bind the Parties and their respective successors and
permitted assigns. Nothing in this Agreement, express or implied, may be construed to give any Person other than the Parties and their
respective successors and permitted assigns any right, remedy, claim, obligation or liability arising from or related to this Agreement;
provided, however, that the Designated Transferee is an intended beneficiary of this Agreement and will have standing to enforce the
provisions of this Agreement.
24.8
Severability. If any court of competent jurisdiction holds any
provision of this Agreement invalid or unenforceable, then the other provisions of this Agreement will remain in full force and effect.
Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent
not held invalid or unenforceable.
24.9
References. The headings of Sections are provided for convenience only and will not affect the construction or interpretation
of this Agreement. Unless otherwise provided, references to “Section(s)” and “Exhibit(s)” refer to the corresponding
section(s) and exhibit(s) of or to this Agreement. Each Exhibit is hereby incorporated into this Agreement by reference.
Reference to a statute refers to the statute, any amendments or successor legislation and all rules and regulations promulgated
under or implementing the statute, as in effect at the relevant time. Reference to a contract, instrument or other document as of a given
date means the contract, instrument or other document as amended, supplemented and modified from time to time through such date.
24.10
Construction. Each Party participated in the negotiation and drafting of this Agreement, assisted by such legal and tax counsel
as it desired, and contributed to its revisions. Any ambiguities with respect to any provision of this Agreement will be construed fairly
as to all Parties and not in favor of or against any Party. If question arises as to whether or not a Transfer Event has occurred, a
good faith determination by the board of directors or equivalent governing authority of Manager will control. All pronouns and any variation
thereof will be construed to refer to such gender and number as the identity of the subject may require. The terms “include”
and “including” indicate examples of a predicate word or clause and not a limitation on that word or clause. The term “Business
Day” means a day that is not a Saturday, Sunday or legal holiday on which banks are authorized or required to be closed in
Minneapolis, Minnesota.
24.11
Governing Law. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
24.12
Arbitration. Except as expressly provided below in this Section 24.12, all controversies, claims and disputes arising
from or relating to this Agreement will be resolved by final and binding arbitration before a single neutral arbitrator located in Hennepin
County, Minnesota, conducted under the applicable rules of the American Arbitration Association. The arbitrator’s award will
be final and binding upon the Parties and judgment may be entered on the award. Each Party expressly waives its right to have any controversies,
claims or dispute arising from or related to this Agreement decided by a court or jury. The Parties and the arbitrator will maintain
in confidence the existence of the arbitration proceeding, all materials filed in conjunction therewith and the substance of the underlying
dispute unless and then only to the extent that disclosure is otherwise required by applicable Law.
24.13
Specific Enforcement. The Holder acknowledges and agrees that (i) compliance
with the Holder’s covenants and agreements in Section 18, Section 19, Section 20 and this Section 24.13
is necessary to protect the goodwill and legitimate business interests of the other Parties and their businesses, (ii) a breach
of any such covenant or agreement will cause irreparable injury to the other Parties and actual damages would be difficult to ascertain
and would be inadequate, (iii) if the Holder breaches any such covenant or agreement, then the other Parties will be entitled to
injunctive relief and specific performance to enforce the terms of this Agreement in addition to such other legal and equitable remedies
that may be available (without any requirement to post bond or other security), (iv) the Holder hereby waives the claim or defense
that an adequate remedy at law exists for such a breach, (v) the Holder hereby waives any claim or defense to the enforcement of
such covenants and agreements arising from or related to any other claim or cause of action that the Holder may have against any other
Party and (vi) the Holder will reimburse the other Parties for all costs and expenses (including reasonable attorneys’ fees
and costs) arising from or related to the enforcement of this Section 24.13.
24.14
Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES ITS RIGHT TO
A JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING IN CONNECTION WITH ANY MATTER RELATING TO THIS AGREEMENT.
24.15
Counterparts. The Parties may execute this Agreement in multiple counterparts, each of which will constitute an original and all
of which, when taken together, will constitute one and the same agreement. The Parties may deliver executed signature pages to this
Agreement by facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000,
e.g., www.docusign.com) or other transmission method. No Party may raise as a defense to the formation or enforceability of this
Agreement, and each Party forever waives any such defense, either (i) the use of a facsimile, email, or such other transmission
method to deliver a signature or (ii) the fact that any signature was signed and subsequently transmitted by facsimile, email, or
such other transmission method.
[SIGNATURE PAGE
IMMEDIATELY FOLLOWS]
The Parties have
signed this Stock Transfer Restriction Agreement as of the date first written above.
| Company: |
PDG, P.A. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
| |
|
| Holder: |
|
| |
Christopher Steele, D.D.S. |
| |
|
| |
|
| Manager: |
Park Dental Partners, Inc. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
SIGNATURE PAGE TO
STOCK TRANSFER RESTRICTION AGREEMENT
The undersigned,
being the spouse of the Holder, joins in the execution of this Agreement to evidence that the undersigned’s community property,
tenants-by-the-entirety, or other similar interest, if any, in and to the Restricted Securities is subject to the terms and conditions
of this Agreement in all respects.
Acknowledged and Agreed:
| | |
| | Name: Christopher
Steele, D.D.S. |
EXHIBIT A
FORM OF
RESTRICTED SECURITIES TRANSFER POWER
[see attached]
EXHIBIT TO
STOCK TRANSFER RESTRICTION AGREEMENT
RESTRICTED SECURITIES
TRANSFER POWER
For
value received, the undersigned hereby (i) sells, assigns and transfers to ________________________ all of the undersigned’s
Shares of PDG, P.A., a Minnesota professional corporation (the “Company”), standing in the undersigned’s name
on the books and records of the Company and (ii) irrevocably constitutes and appoints Park Dental Partners, Inc. a Minnesota
corporation, as the undersigned’s attorney to transfer such equity securities on the books of the Company with full power of substitution
in the premises.
| Date: |
|
|
|
| |
|
|
| |
|
Name: Christopher Steele, D.D.S. |
EXHIBIT D
HIPAA BUSINESS
ASSOCIATE AGREEMENT
BUSINESS ASSOCIATE
AGREEMENT
THIS
BUSINESS ASSOCIATE AGREEMENT (“Agreement”) is entered into on this ___ day of______, 2023, (“Effective
Date”) by and between PDG, P.A. (hereinafter, referred to as “Covered Entity”) and Park Dental Partners, Inc.
(hereinafter, referred to as “Business Associate”). This Agreement shall be incorporated into the Agreement as indicated
below.
RECITALS
WHEREAS,
pursuant to an Administrative Resources Agreement (“Agreement”) entered into by and between Covered Entity and Business
Associate, Business Associate creates, receives, maintains or transmits Protected Health Information (“PHI”) on behalf of
Covered Entity when providing certain functions, activities, and services (collectively “Services”) to Covered Entity;
WHEREAS,
Covered Entity and Business Associate are subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
and its implementing privacy, security, breach notification and enforcement rules at 45 C.F.R. Parts 160 and 164 (“HIPAA Rules”),
the applicable provisions of the Health Information and Technology for Economic and Clinical Health Act of 2009 (“HITECH”),
and any future implementing regulations and guidance issued by the Secretary; and
WHEREAS,
the HIPAA Rules require Covered Entity and Business Associate to enter into an agreement to provide for the protection of the
privacy and security of PHI before Business Associate is permitted to create, receive, maintain or transmit PHI on behalf of Covered
Entity.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties agree as follows:
I. Definitions.
The following terms shall have the meaning ascribed to them in this Section. Other capitalized terms shall have the meaning
ascribed to them in the context in which they first appear. Terms used, but not otherwise defined, in this Agreement shall have the same
meaning as those terms established in 45 C.F.R. §§ 160 through 164.
| 1. | Breach
shall mean the unauthorized acquisition, access, use, or disclosure of PHI which compromises
the security or privacy of such information, as defined in 45 C.F.R. § 164.402. |
| 2. | Breach
Notification Rule shall mean the Standards and Implementation Specifications for
Notification of Breaches of Unsecured PHI under 45 C.F.R. Parts 160 and 164, subparts A and
D. |
| | | |
| 3. | Data
Aggregation shall mean, with respect to PHI created or received by a business associate
in its capacity as the business associate of a covered entity, the combining of such PHI
by the business associate with the PHI received by the business associate in its capacity
as a business associate of another covered entity, to permit data analyses that relate to
the health care operations of the respective covered entities. |
| | | |
| 4. | Designated
Record Set shall mean a group of records maintained by or for Covered Entity that is:
(a) the medical records and billing records about Individuals maintained by or for a
covered health care provider; or (b) used in whole or in part, by or for Covered Entity
to make decisions about individuals. For these purposes, the term record means any item,
collection, or grouping of information that includes PHI and is maintained, collected, used,
or disseminated by or for Covered Entity. |
| | | |
| 5. | Electronic
Protected Health Information or EPHI shall mean individually identifiable health
information that is transmitted or maintained in electronic media as defined in 45 C.F.R.
§ 160.103. |
| | | |
| 6. | HHS
shall mean the United States Department of Health and Human Services. |
| | | |
| 7. | Individual
shall mean the person who is the subject of the PHI, and shall have the same meaning
as the term “individual” as defined in 45 C.F.R. § 160.103 and shall include
a person who qualifies as a personal representative in accordance with 45
C.F.R. § 164.502(g). |
| | | |
| 8. | Parties
shall mean Business Associate and Covered Entity. |
| | | |
| 9. | Privacy
Rule shall mean the Standards and Implementation Specifications for Privacy of Individually
Identifiable Health Information at 45 C.F.R. Parts 160 and 164, subparts A and E. |
| | | |
| 10. | Protected
Health Information or PHI shall have the same meaning as the term “protected
health information” in 45 C.F.R. § 160.103, limited to the information created
or received by Business Associate from or on behalf of Covered Entity. |
| | | |
| 11. | Required
by Law shall have the same meaning as the term “required by law” in 45 C.F.R.
§ 164.512. |
| | | |
| 12. | Secretary
shall mean the Secretary of the United States Department of Health and Human Services,
or his or her designee. |
| | | |
| 13. | Security
Incident shall mean the attempted or successful unauthorized access, use, disclosure,
modification, or destruction of information or interference with system operations in an
information system as defined in 45 C.F.R. § 164.304. |
| 14. | Security
Rule shall mean the Security Standards and Implementation Specifications for the
Protection of Electronic Protected Health Information at 45 C.F.R. Parts 160 and 164, subparts
A and C. |
| | | |
| 15. | Subcontractor
shall have the same meaning as the term “subcontractor” in 45 C.F.R. §
160.103. |
| | | |
| 16. | Unsecured
Protected Health Information shall mean PHI that is not rendered unusable, unreadable,
or indecipherable to unauthorized persons through the use of a technology or methodology
specified by the Secretary from time to time. |
II. Permitted
Uses and Disclosures of PHI by Business Associate.
| 1. | Generally.
Except as otherwise limited in this Agreement, Business Associate may use or disclose
PHI to perform functions, activities or services for, or on behalf of, Covered Entity as
specified in the Agreement, provided that such use or disclosure would not violate the Privacy
Rule if done by Covered Entity. Any such use or disclosure shall be limited to those
reasons and those individuals as necessary to meet the Business Associate’s obligations
under the Agreement. In all circumstances, Business Associate shall limit such uses and disclosures
to the minimum amount of PHI that is necessary to fulfill those obligations in accordance
with the HIPAA Rules and any future implementing regulations and guidance issued by
the Secretary. |
| 2. | Management,
Administration, and Legal Responsibilities. Business Associate may use PHI, if necessary,
for the proper management and administration of Business Associate or to carry out the legal
responsibilities of Business Associate. Business Associate may disclose PHI, if necessary,
for the proper management and administration of Business Associate or to carry out the legal
responsibilities of Business Associate, provided: |
| a. | The
disclosure is Required by Law; or |
| b. | Business
Associate obtains reasonable assurances from the person to whom the PHI is disclosed that
it will remain confidential and will be used or further disclosed only as Required by Law
or for the purpose for which it was disclosed to the person, and the person promptly notifies
Business Associate of any instances of which it is aware in which the confidentiality of
the PHI has been breached. |
| 3. | Data
Aggregation. Except as otherwise limited by this Agreement, if Business Associate provides
Data Aggregation services, Business Associate may use PHI to provide Data Aggregation services
to Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B). |
| 4. | De-identified
Data. Business Associate may use PHI to create de-identified data in accordance with
the HIPAA Rules. Data that has been de-identified will no longer be subject to the terms
of this Agreement. |
III. Obligations
of Business Associate.
| 1. | Appropriate
Safeguards. Business Associate will use appropriate safeguards and comply with the Security
Rule with respect to EPHI that it creates, receives, maintains, or transmits on behalf
of Covered Entity. |
| 2. | Mitigation
of Harm. Business Associate agrees to mitigate, to the extent practicable, any harmful
effect that is known to Business Associate of a use or disclosure of PHI by Business Associate
in violation of the requirements of this Agreement. |
| 3. | Reporting.
Business Associate will report to Covered Entity any use or disclosure of PHI not provided
for by this Agreement. Business Associate will also report to Covered Entity any Security
Incident of which it becomes aware with respect to EPHI. Additionally, Business Associate
will report to Covered Entity within five (5) business days of discovering a Breach
of Unsecured PHI. The Breach notice shall be in writing and meet the requirements of the
Breach Notification Rule. Business Associate agrees to investigate any suspected Breach,
to establish and implement procedures to mitigate losses and to protect against future Breaches,
and to provide a description of all such investigations and procedures to Covered Entity
upon the request of Covered Entity. Unless otherwise mutually agreed by the parties, the
Covered Entity shall be responsible for providing notification of any Breach to individuals,
the Secretary, and/or the media as may be required (in Covered Entity’s sole determination)
by 45 C.F.R. §164 Subpart D. |
| 4. | Subcontractors.
Business Associate agrees to ensure that any Subcontractor that creates, receives, maintains,
or transmits PHI, including EPHI, on behalf of the Business Associate, agrees to the same
restrictions and conditions that apply through this Agreement to Business Associate with
respect to such information, including but not limited to, compliance with the applicable
requirements of 45 C.F.R. Parts 160 and 164. Such agreement between Business Associate and
Subcontractor must be made in writing and must comply with the terms of this Agreement and
the requirements outlined in 45 C.F.R. §§ 164.504(e) and 164.314. If the Business
Associate is aware of a pattern of activity or practice of Subcontractor that constitutes
a material breach or violation of Subcontractor’s obligations under such agreement,
and such breach is not cured within a reasonable time, Business Associate shall terminate
such agreement with Subcontractor, if feasible. |
| 5. | Access
to PHI. Business Associate shall provide access, at the request of Covered Entity, and
in the time and manner reasonably designated by Covered Entity, to PHI in a Designated Record
Set to Covered Entity or, as directed by Covered Entity, to an Individual, in order to meet
the requirements under 45 C.F.R. § 164.524 with regard to providing an Individual with
a right to access the Individual’s PHI. If Covered Entity requests an electronic copy
of PHI that is maintained electronically in a Designated Record Set in the Business
Associate’s custody or control, Business Associate will provide an electronic copy
in the form and format specified by the Covered Entity if it is readily producible in such
format. If it is not readily producible in such format, Business Associate will work with
Covered Entity to determine an alternative form and format that enables Covered Entity to
meet its electronic access obligations under 45 C.F.R. § 164.524. |
| 6. | Amendments
to PHI. Business Associate agrees to make any amendment(s) to PHI in a Designated
Record Set that the Covered Entity directs or agrees to pursuant to 45 C.F.R. § 164.526
at the request of Covered Entity or an Individual, and in the time and manner reasonably
designated by Covered Entity. |
| 7. | Documentation
of Disclosures. Business Associate shall document such disclosures of PHI and information
related to such disclosures as would be required for Covered Entity to respond to a request
by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. §
164.528, HITECH and any future implementing regulations and guidance issued by the Secretary.
For each such disclosure, Business Associate shall document the following information: (i) the
date of the disclosure; (ii) the name and, if known, the address of the recipient of
the PHI; (iii) a brief description of the PHI disclosed; and (iv) a statement that
reasonably informs Covered Entity of the purpose of the disclosure. Business Associate agrees
to provide to Covered Entity, in the time and manner reasonably designated by Covered Entity,
information collected in accordance with this provision. |
| 8. | Request
for an Accounting Directly to Business Associate. Business Associate shall inform Covered
Entity of a request for an accounting made directly to Business Associate within five (5) days
of having received the request. Covered Entity shall either inform Business Associate to
provide the requested information directly to the individual or request Business Associate
to immediately forward the information to Covered Entity for compilation and distribution
to the individual. In the case of a direct request for an accounting from an individual related
to treatment, payment, or operations disclosures through electronic health records, Business
Associate shall provide the accounting to the individual in accordance with HITECH and any
future implementing regulations and guidance issued by the Secretary. Business Associate
shall confirm with Covered Entity that Covered Entity provided Business Associate’s
name to the individual in response to a request for an accounting before providing the requested
accounting to the individual. |
| 9. | Access
to Books and Records. Business Associate shall make its internal practices, books, and
records relating to the use and disclosure of PHI received from, or created or received by
Business Associate on behalf of, Covered Entity available to the Covered Entity or to the
Secretary in a time and manner designated by Covered Entity or the Secretary for purposes
of determining Covered Entity’s or Business Associate’s compliance with the HIPAA
Rules. |
| 10. | Carrying
Out Obligations of Covered Entity. To the extent the Business Associate is to carry out
a Covered Entity’s obligation(s) under the HIPAA Rules, Business Associate
shall comply with the requirements of the HIPAA Rules that apply to the Covered Entity
in the performance of such obligation. |
IV. Obligations
of Covered Entity.
| 1. | Covered
Entity shall notify Business Associate of any limitation(s) in the notice of privacy
practices to the extent that such limitation may affect Business Associate’s use or
disclosure of PHI. |
| 2. | Covered
Entity shall provide Business Associate with any changes in, or revocation of, permission
by an Individual to use or disclose PHI, if such changes affect Business Associate’s
permitted or required uses and disclosures. |
| 3. | Covered
Entity shall notify Business Associate of any restriction to the use or disclosure of PHI
that Covered Entity has agreed to or must comply with in accordance with 45 C.F.R. §
164.522. |
| 4. | Covered
Entity shall not request Business Associate to use or disclose PHI in any manner that would
not be permissible under the Privacy Rule if done by Covered Entity, except as set forth
in Section II (Permitted Uses and Disclosures of PHI by Business Associate) of this
Agreement. |
V. Term
and Termination.
| 1. | Term.
The term of this Agreement shall commence on the Effective Date and shall remain in effect
for the duration of the relationship, functions or services giving rise to the necessity
of this Agreement, and until all of the PHI provided by Covered Entity to Business Associate,
or created, received, maintained or transmitted by Business Associate on behalf of Covered
Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or
destroy PHI, protections are extended to such information, in accordance with the termination
provisions in this Section. |
| 2. | Termination
Resulting from the End of Relationship, Functions or Services. This Agreement shall terminate
in the event the Agreement terminates or the underlying relationship, functions, or services
that give rise to the necessity of this Agreement terminate for any reason. |
| 3. | Termination
for Cause. Upon either Party’s knowledge of a material breach of this Agreement
by the other Party, the non-breaching Party must either: |
| a. | Provide
an opportunity for the breaching Party to cure the breach or end the violation, and if the
breaching Party does not cure the breach or end the violation within the time specified by
the non-breaching Party, the non-breaching Party shall terminate this Agreement and any underlying
agreement(s); or |
| b. | If
cure is not possible, immediately terminate this Agreement and any underlying agreement(s). |
| 4. | Return
or Destruction of PHI Upon Termination or Expiration. Upon termination of this Agreement,
Business Associate shall return or destroy all PHI received from Covered Entity, or created
or received by Business Associate on behalf of Covered Entity. This provision shall apply
to PHI that is in the possession of Subcontractors of Business Associate. Business Associate
shall not retain copies of such information upon termination of Agreement. In the event that
Business Associate determines that returning or destroying PHI is infeasible, Business Associate
shall provide to Covered Entity notification of the conditions that make return or destruction
infeasible. Upon mutual agreement of the Parties that return or destruction of PHI is infeasible,
Business Associate shall extend the protections of this Agreement to such PHI and limit further
uses and disclosures of such PHI to those purposes that make the return or destruction infeasible,
for so long as Business Associate maintains such PHI. |
VI. Notice
Whenever,
under the terms of this Agreement, written notice is required or permitted to be given by one party to the other party, such notice shall
be deemed to have been sufficiently given if when delivered (personally, by carrier service such as Federal Express, or by other messenger)
or upon actual receipt of registered or certified mail, postage prepaid, return receipt requested, addressed to the last known address
of the intended recipient.
Notice
under this Agreement shall be provided to the following for Covered Entity:
HIPAA Privacy Officer
Address:
City, State Zip:
Telephone:
Facsimile:
Email:
Notice
under this Agreement shall be provided to the following for Business Associate:
Business Associate Name:
Address:
City, State Zip:
Telephone:
Email:
VII. Additional
Provisions.
| 1. | Remuneration
in Exchange for PHI. Business Associate shall not directly or indirectly receive remuneration
in exchange for any PHI of an individual unless Covered Entity has received a valid authorization
from that individual or the exchange is otherwise permitted by the HIPAA Rules. As permitted
by law, Covered Entity may provide remuneration to Business Associate for activities involving
the exchange of PHI that Business Associate undertakes on behalf of the Covered Entity if
the remuneration is for the performance of such activities. |
| 2. | Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio to the extent that the provisions of the HIPAA Rules do not preempt
the laws of the State of Ohio. |
| 3. | Entire
Agreement. This Agreement constitutes the entire Agreement of the Parties and supersedes
all prior oral and written agreements or understandings between them with respect to the
matters provided for herein. All notices and other communications under this Agreement shall
be in writing. |
| 4. | Regulatory
References. A reference in this Agreement to a section in the HIPAA Rules means
the section as in effect or as amended, and for which compliance is required. |
| 5. | Amendment.
The Parties agree to take such action as is necessary to amend this Agreement from time
to time as is necessary for Covered Entity to comply with the requirements of the HIPAA Rules. |
| 6. | Interpretation.
Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits
Covered Entity to comply with the HIPAA Rules. |
| 7. | No
Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. |
IN
WITNESS WHEREOF, Business Associate and Covered Entity have agreed to the terms of the above written agreement as of the Effective
Date set forth above.
| Business Associate | |
Covered Entity |
| | |
|
| By | |
By |
| | |
|
| Print Name | |
Print Name |
| | |
|
| Title | |
Title |
| | |
|
| Date | |
Date |
Exhibit 10.13
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I)
NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
ADMINISTRATIVE RESOURCES AGREEMENT
This Administrative Resources
Agreement (this “Agreement”) is made as of October 1, 2023 (the “Effective Date”), by and
among Park Dental Partners, Inc., a Minnesota corporation (“Manager”), Orthodontic Specialists of Minnesota,
PLLC, a Minnesota professional limited liability company (“Provider”), and solely for purposes of Sections 1.2(b),
12.1, 12.2, 12.4, 12.5, 12.6, 13.3 and Article 16, Alan Law, D.D.S., Ph.D. (“Holder”). Manager, Holder and
Provider are each sometimes herein referred to as a “Party,” and collectively as the “Parties,”
provided however that the term “Party” or “Parties” is only applicable to Holder for purposes of
Sections 1.2(b), 12.1, 12.2, 12.4, 12.5, 12.6 and Article 16.
RECITALS
A. Provider
delivers dental and orthodontic services (“Professional Services”) in Minnesota and Wisconsin; and
B. Provider
desires to engage Manager to provide the management, administrative, business, billing and other services described in this Agreement
so that Provider may focus on the rendering of Professional Services, and Manager desires to provide such services to Provider, all upon
the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration
of the mutual promises and agreements set forth below, and/or other good, valuable and sufficient consideration, the receipt and sufficiency
of which are hereby acknowledged, Provider, Manager and Holder agree as follows:
TERMS AND CONDITIONS
1. Appointment.
1.1 Exclusivity.
During the Term of this Agreement, Provider hereby appoints Manager as its sole and exclusive provider of administrative and other business
services as described in this Agreement (collectively, the “Services”) and Manager accepts such appointment and agrees
to provide the Services to Provider. Manager is expressly authorized to provide such Services in any commercially reasonable manner Manager
deems appropriate to meet the requirements of the business functions of Provider, including, without limitation, delegating any duties
under this Agreement to Manager’s affiliates or to one or more subcontractors.
1.2 Representations
and Warranties.
(a) Manager
and Provider represent and warrant to each other as follows: (i) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all requisite action of such party and no other action on the part
of such Party is necessary to authorize this Agreement or to carry out the transactions contemplated hereby; (ii) neither the execution
and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby will: (x) violate any law, statute,
regulation, rule, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency
or court that such Party is subject to; or (y) conflict with, result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice or approval or consent under any
agreement (including any non-compete or other restrictive covenant), contract, lease, license, instrument or other arrangement to which
such Party is bound or to which such Party’s assets are subject (or result in the imposition of any encumbrance upon any of the
assets of such Party); and such Party is not required to give any notice to, make any filing with or obtain any authorization, registration,
qualification, consent, waiver or approval of any government or governmental agency or any third party in connection with the execution,
delivery and performance of the transactions contemplated by this Agreement by such Party.
(b) Holder
represents and warrants to the other Parties that the execution and the delivery of this Agreement, or the consummation of the transactions
contemplated hereby will not conflict with, result in a breach of, constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify or cancel, or require any notice or approval or consent under any agreement (including
any non-compete or other restrictive covenant), contract, lease, license, instrument or other arrangement to which Holder is bound or
to which Holder’s assets are subject (or result in the imposition of any encumbrance upon any of the assets of Holder).
1.3 Compliance
with Dental Practice Act. THE PARTIES HAVE MADE ALL REASONABLE EFFORTS TO ENSURE THAT THIS AGREEMENT COMPLIES WITH THE UNLICENSED
PRACTICE OF DENTISTRY PROHIBITIONS IN THE MINNESOTA DENTAL PRACTICE ACT, MINN. STAT., §§ 150A.01 to 150A.22, ET SEQ. THE
PARTIES UNDERSTAND AND ACKNOWLEDGE THAT SUCH LAWS MAY CHANGE, BE AMENDED, OR HAVE A DIFFERENT INTERPRETATION AND THE PARTIES INTEND
TO COMPLY WITH SUCH LAWS IN THE EVENT OF SUCH OCCURRENCES. UNDER THIS AGREEMENT, PROVIDER SHALL HAVE THE EXCLUSIVE AUTHORITY, MANAGEMENT
AND CONTROL OVER THE DENTAL ASPECTS OF THE PROFESSIONAL SERVICES AND SHALL PROVIDE SUCH SERVICES TO THE EXTENT THEY CONSTITUTE THE PRACTICE
OF DENTISTRY, WHILE MANAGER SHALL HAVE THE SOLE AND EXCLUSIVE AUTHORITY TO FURNISH ADMINISTRATIVE SERVICES IN SUPPORT OF PROVIDER, PROVIDED
THE PROVISION OF SUCH ADMINISTRATIVE SERVICES DOES NOT AFFECT THE PROVIDER’S OR ANY OF ITS DENTISTS’ EXERCISE OF INDEPENDENT
PROFESSIONAL JUDGMENT, REQUIRE THE PROVIDER OR ANY DENTIST TO ACT IN A MANNER WHICH VIOLATES THE PROFESSIONAL STANDARDS FOR DENTISTRY,
OR CONSTITUTE THE PRACTICE OF DENTISTRY AS DEFINED IN THE MINNESOTA DENTAL PRACTICE ACT.
2. Duties
and Responsibilities of Manager.
2.1 Billing
and Collection. Manager shall provide, or engage a third party to provide, such billing and collection services (“Billing
and Collection Services”) as are reasonably necessary to attempt to collect in a timely manner all accounts receivable in connection
with the provision of the Professional Services furnished by Provider. On behalf of and for the account of Provider, and in consultation
with Provider, Manager shall establish and maintain reasonable and compliant billing and collections policies and procedures for Provider
and shall exercise reasonable efforts to bill and collect in a timely manner all professional and other fees for all billable services
provided by Provider. Manager shall observe, and ensure compliance by Provider with, all applicable laws regarding billing and collecting
for professional dental services, and shall further ensure Provider’s compliance with all applicable policies and procedures of
third-party payors. Manager will assist Provider in the provision of training to Provider’s Dentists (as defined in Section 2.1(a) below)
regarding proper coding and coding compliance. In connection with the Billing and Collection Services to be provided hereunder, Provider
hereby appoints Manager as Provider’s exclusive true and lawful agent and grants power of attorney in favor of Manager, and Manager
hereby accepts such appointment and power of attorney, solely for the following purposes:
(a) to
submit, in the name of Provider and any and all dentists employed or engaged by Provider to provide Professional Services for the benefit
of Provider (collectively the “Dentists”), under Provider’s and/or each Dentist’s provider number(s) when
obtained, and on Provider’s and each Dentists’ behalf, all claims for reimbursement to all patients and third party payors,
including, without limitation, state or federal health care programs, for all Professional Services provided by Provider or any Dentist
to patients;
(b) to
collect and receive, in the name of Provider and each Dentist, and on behalf of Provider and each Dentist, all accounts receivable generated
by claims for reimbursement; to take possession of, endorse in the name of Provider, and deposit into Provider’s designated bank
account(s) any notes, checks, money orders, insurance payments, and any other instruments received as payment of accounts receivable;
to take all actions necessary to administer such accounts including, without limitation, extending the time or payment of any such accounts
for cash, credit or otherwise; to discharge or release the obligors of any such accounts; to sue, assign or sell at a discount such accounts
to collection agencies, or take other measures to require the payment of any such accounts;
(c) to
make demand with respect to, settle, compromise, and adjust such claims and to coordinate with collections agencies in the name of Provider
and each Dentist, any note, check, money order, insurance payment, or other instrument received as payment for Professional Services;
(d) to
effect the transfer from Provider’s bank accounts to an account designated by Manager the payment of any and all amounts due by
Provider to Manager, including without limitation, any payment due for the Services or in connection with loans made by Manager or one
of its affiliates to Provider; and
(e) to
sign checks, drafts, bank notes or other instruments on behalf of Provider, and to make withdrawals from Provider’s account for
payments specified in this Agreement and as requested from time to time by Provider, and generally to apply such funds in a manner consistent
with this Agreement.
2.2 Bank
Accounts.
(a) To
facilitate the Billing and Collection Services, Manager shall establish and maintain, in the name of Provider and for Provider’s
benefit, certain bank accounts, including one or more designated the “Provider Account(s)” and one or more designated
the “Operating Account(s)”. Each Provider Account will be in Provider’s name, and Provider will have sole ownership
of such Provider Accounts. To facilitate Manager’s Billing and Collection Services, each Operating Account will be in Manager’s
name and maintained for Provider’s benefit.
(b) All
payments due in respect of dental services rendered and products provided by or on behalf of Provider, and any other amounts payable
to Provider, will be directed to the Provider Accounts. Provider will enter into an agreement chosen by the Parties to (i) establish
and service the Provider Accounts subject to the requirements of this Agreement (including a power of attorney granted by Provider to
Manager), (ii) facilitate the collection and negotiation of payments from third-party payors and the deposit of such payments into
the Provider Accounts, and (iii) sweep all funds, subject to a minimum balance as mutually agreed by the Parties, from the Provider
Accounts into the Operating Accounts on a daily basis. Except in connection with the termination or expiration of this Agreement, any
modification or revocation of such authorization and instructions by Provider without Manager’s prior written consent shall constitute
a breach of this Agreement.
(c) Manager
shall use the Operating Accounts to receive funds from the Provider Accounts and to make payments as specified in this Agreement and
as otherwise requested from time to time by Provider consistent with the terms of this Agreement.
(d) Manager
will transfer funds from the Operating Accounts to payroll accounts owned by Provider for purposes of funding Provider’s payroll
and other expenses borne directly by Provider.
2.3 Personnel.
(a) Manager
shall recruit, employ, engage, lease, hire, train, promote, direct, supervise and terminate the employment or lease of all non-dentist
personnel and such other personnel that are not required by their licenses or otherwise by law to be employed by Provider (or arrange
for the same through an employee leasing arrangement or as independent contractors) (collectively, the “Non-Dentist Personnel”)
as Manager determines is appropriate for the provision of the Professional Services by Provider, provided that such conduct does not
interfere with the Provider’s independent professional judgment or require the Provider to act in a manner which violates the professional
standards for dentistry. Manager shall supervise the Non-Dentist Personnel in all non-clinical aspects of their exercise of such duties.
Provider shall provide clinical oversight, as applicable, to the Non-Dentist Personnel.
(b) Subject
to Provider’s review and approval, Manager shall establish and implement guidelines for the recruitment, selection, and credentialing
of Dentists or other personnel that are required by their licenses or otherwise by law to be employed or engaged by Provider (the “Licensed
Personnel”) to provide Professional Services on behalf of Provider, provided that Provider shall have ultimate responsibility
and decision making authority regarding the hiring, training, supervising, and termination of Licensed Personnel, and provided further
such conduct does not interfere with Provider’s independent professional judgment or require the Provider to act in a manner which
violates the professional standards for dentistry. Manager will carry out such administrative functions as may be appropriate for such
recruitment, selection and credentialing, including, without limitation, advertising for and identifying potential candidates, assisting
Provider in examining and investigating the credentials of such potential candidates, and arranging interviews with such potential candidates.
As part of the Services, Manager shall perform or cause to be performed the following credentialing services: verification of state licensure,
controlled substances registration numbers, malpractice history, and employment history. Manager also shall determine whether any candidate
has been listed in Office of Foreign Assets Control’s “Specially Designated Nationals and Blocked Persons” list
or has been excluded or otherwise sanctioned by a state or federal health care program (e.g., Medicare, Medicaid or TRICARE) by reviewing
the List of Excluded Individuals/Entities published by the Office of Inspector General for the Department of Health and Human Services
and other available sources of information, as determined by Manager.
(c) Manager,
on behalf of Provider, shall pay all salaries and wages and such benefits as set forth in the benefit policy as determined by the Manager
in consultation with Provider (which may include all or portion of health, life, and disability insurance coverage and contributions
under employee benefit plans), travel and office reimbursement expenses, vacation and sick pay, employment and payroll taxes; and the
cost of payroll administration and administration of benefits, for Dentists employed by Provider. In connection therewith, Provider hereby
appoints Manager as Provider’s exclusive true and lawful agent and grants a power of attorney in favor of Manager, and Manager
hereby accepts such appointment and power of attorney to enter into benefits agreements on behalf of Provider.
2.4 Public
Relations. Manager shall develop, with Provider’s consultation,public relations and advertising programs to be implemented
by Provider to effectively promote its Professional Services. Manager shall advise and assist Provider in implementing such programs,
which assistance shall include preparing (or obtaining services necessary for preparing) marketing and advertising materials and negotiating
public relations and advertising contracts on Provider’s behalf. Manager and Provider agree that all public relations and advertising
programs shall be conducted in compliance with all applicable standards of dental ethics, laws and regulations. Manager shall not provide
services contemplated by this Section 2.4 with regard to operations in any state to the extent that the provision of services
by Manager would violate any applicable law.
2.5 Contract
Assistance. Manager shall advise Provider with respect to, and may, as appropriate and permitted by applicable law, negotiate in
the name of and at the expense of Provider, such contractual arrangements with commercial payors and such other third parties as are
reasonably necessary and appropriate for Provider’s operation, including, without limitation, service agreements with health care
facilities, third-party payors, or other purchasers of dental services (collectively, “Contracts”). Manager is hereby
expressly authorized, as Provider’s agent and at Provider’s expense, to execute and deliver any of such Contracts, in the
name of and on behalf of Provider and each Dentist, and presentation of a copy of this Agreement shall constitute conclusive evidence
of such agency. Manager may, in the name and on behalf of Provider and each Dentist, modify, supplement, amend, or terminate, or grant
waivers or releases of obligations under, any of such Contracts; provided, however, that Manager shall not have authority to amend this
Agreement other than pursuant to the terms set forth in Section 16. Manager shall not provide services contemplated by this
Section 2.5 to the extent that the provision of services by Manager would violate any applicable law.
2.6 Insurance.
Manager shall arrange for the purchase by Provider, at Provider’s cost and expense, of reasonable insurance coverage for Provider
providing coverage in reasonable amounts from established and reputable insurers, including but not limited to directors and officers
liability insurance, workers compensation insurance and a policy or policies of professional liability insurance providing coverage for
Provider and its Licensed Personnel.
2.7 Assets,
Equipment and Supplies: Computer and Information Technology Systems.
(a) Assets,
Equipment and Supplies. Manager in consultation with Provider shall select, purchase, lease, license or otherwise acquire or arrange
for the use of all assets necessary for Provider to provide the Professional Services, including, without limitation, medical, dental,
computer and other equipment, software, supplies, inventory, and other materials and items, in such quantities and at such times as Manager
and Provider shall determine to be adequate or appropriate to provide the Professional Services, except as prohibited by applicable law.
Manager shall consult with Provider to ensure that such assets, equipment and supplies are necessary and appropriate with respect to
the delivery of the Professional Services. Unless otherwise herein specifically provided or prohibited by applicable law, all right,
title and interest to and in such assets, equipment and supplies shall at all times remain with Manager and Provider agrees not to take
any action that would adversely affect Manager’s right or title thereto or interest therein. All of the costs and expenses related
or incident to Manager’s obligations under this Section 2.7 shall be the responsibility of and shall be for the account
of Provider, regardless of whether Manager provides such assets or procures such assets on Provider’s behalf. Manager’s provision
of the assets, equipment and supplies to Provider shall in no way impair, limit, restrict or interfere with Provider’s full and
independent professional judgment and responsibility to patients or require the Provider to act in a manner which violates the professional
standards for dentistry. Furthermore, material or equipment necessary for the Provider to engage in the practice of dentistry as defined
by Minn. Stat. 150A.05 that only a licensed dentist may lawfully select, purchase, lease, license or otherwise acquire or arrange for
the use of under applicable federal and state law, will be subject to Provider’s approval consistent with this Agreement and not
to be unreasonably withheld, and subject to Provider’s ownership and control once so approved.
(b) Computer
Systems. Without limiting the generality of the provisions of Section 2.7(a) above, Manager shall provide Provider
with computer hardware and software. Manager may determine from time to time that said hardware and software requires upgrading or replacement,
the cost of which shall be the responsibility of Manager. All computer software, including, without limitation, such upgrades, shall
remain the property of Manager during the Term of this Agreement and shall be returned to Manager upon termination hereof, subject to
any applicable licensor approvals. Provider is hereby granted a non-exclusive right to use said software during the Term of this Agreement
and Manager will ensure any applicable licensors consent to such right to the extent contractually required by the licensor. The computer
hardware, including, without limitation, any upgrades, provided to Provider may be retained by Provider following termination of this
Agreement.
2.8 Accounting.
Manager shall establish and administer bookkeeping and accounting procedures and controls and systems for the development, preparation,
and keeping of records and books of accounting related to the business and financial affairs of Provider.
2.9 Tax
Matters; Corporate Filings. Manager shall on Provider’s behalf and at Provider’s expense, prepare and file, or cause
to be prepared and filed by qualified professionals, the annual report, tax reports and tax returns required to be filed by Provider.
All amounts payable with respect to any of such taxes shall be the responsibility of and shall be for the account of Provider.
2.10 Budgets.
Manager in consultation with Provider shall prepare for review by Provider all capital and annual operating budgets.
2.11 Expenditures.
Manager shall manage all cash receipts and disbursements of Provider, including, without limitation, the payment on behalf of Provider
of all payroll and income taxes, assessments, licensing fees and other fees of any nature whatsoever in connection with its operation
as the same become due and payable, unless payment thereof is being contested in good faith by Provider.
2.12 Practice
Offices. Other than those locations of Provider set forth on Exhibit A, for which Provider shall maintain direct responsibility
and expense for securing practice space, Manager will, at Provider’s cost and expense, provide or otherwise arrange for the provision
to Provider of dental practice space (the “Practice Space”) for such days and times as reasonably deemed necessary
by Provider for Provider’s use and control consistent with this Agreement. Provider shall use and occupy such Practice Space solely
in connection with the business of Provider and the provision of Professional Services during Provider’s normal business hours
as may be determined to be appropriate by Provider and Manager from time to time. Provider acknowledges that if permitted by applicable
law, Manager may lease one or more Practice Space locations from a third party pursuant to the terms of a lease or similar agreement
or document (each, a “Lease”). Provider shall: (a) not do anything which would constitute a breach of the terms
and conditions of any Lease; (b) be bound by all provisions of each Lease, including without limitation, any terms relating to the
termination of such Lease(s); (c) not sublet or assign the entirety or any part of a Practice Space, or permit its use by others
for any purpose unless Manager gives Provider its prior written consent, which consent may be withheld by Manager in Manager’s
sole discretion; (d) not pledge, loan, create a security interest in, or abandon possession of, a Practice Space; (e) not attempt
to dispose of any Practice Space or any part of it; or (f) not permit any liens, attachments, charge, or other judicial process
to be incurred or levied on any Practice Space or any part thereof. Provider and Manager shall comply with all applicable regulations
and laws (including without limitation, rules and regulations relating to the practice of dentistry and applicable zoning regulations).
Provider further covenants and agrees that Manager and its agents shall have reasonable access to all Practice Space at any time for
purposes of inspection. Provider shall immediately notify Manager of any damage or loss to person or property at or in a Practice Space.
Manager shall amend Exhibit A from time to time to correspond with the assignment, if any, of Leases from Provider to Manager.
2.13 Licenses.
Manager shall apply for and use its reasonable efforts to obtain and maintain in the name and at the expense of Provider all reasonable
and necessary licenses, permits, certificates and Medicare, Medicaid and third party payor provider numbers required or appropriate in
connection with Provider’s provision of Professional Services.
2.14 Agency.
Subject to Section 2.2 hereof, Manager shall have access to Provider’s bank account(s) solely for the purposes
stated herein and shall use all funds on deposit therein in accordance with the terms of this Agreement. Provider hereby appoints Manager
as Provider’s true and lawful agent throughout the Term, as hereinafter defined, and Manager hereby accepts such appointment, to
make withdrawals from Provider’s account for payments specified in this Agreement.
2.15 Litigation
Management. Manager shall, at the expense of Provider, (a) assist Provider in the management and defense of all claims, actions,
proceedings or investigations against Provider or any of its officers, directors, employees or agents in their capacity as such, and
(b) assist Provider in the management and direction of all claims, actions, proceedings or investigations brought by Provider against
any person other than Manager or Holder. Manager shall promptly notify Provider of all material legal actions filed on behalf of or (as
Manager becomes aware thereof) against Provider. Manager shall not, except with the consent of Provider, enter into any settlement or
consent to entry of any judgment that (x) imposes any injunctive relief or other equitable relief against, or alleges that a criminal
act was committed by, Provider or Holder or imposes any monetary damages as to which Holder will not be indemnified in full hereunder,
or (y) does not include as a term thereof the giving by the Person(s) asserting such claim (or counterclaim) to Provider and
Holder of a release from all liability with respect to such claim. Notwithstanding the foregoing, Manager shall not exercise any rights
described in clauses (a)-(b) of this Section 2.16 if the matter (i) is a claim seeking non-monetary relief, (ii) involves
criminal or quasi-criminal allegations or regulatory matters, (iii) involves a claim that, if adversely determined, would be reasonably
expected to be materially adverse to the reputation of Holder, or (vi) is a third-party claim being made by a governmental authority.
If Manager exercises any rights described in clauses (a)-(b) of this Section 2.16 in accordance with this Section2.16,
Provider and Holder, at their sole cost and expense, shall have the right to participate in the defense of such third-party claim with
counsel selected by it, subject to Manager’s rights described in clauses (a)-(b) of this Section 2.16, and the
fees and disbursements of such counsel shall be at the expense of Provider.
2.16 Policies.
Manager shall develop, provide and revise, in consultation with and upon approval of Provider, all necessary policies and operating procedures
pertaining to Provider’s business operations (the “Policies”). Upon request of Provider, Manager shall assist
Provider in Provider’s development and implementation of clinical practice guidelines. Nothing in this Section 2.16
shall be construed to give Manager any control or influence over the practice of dentistry by Provider or any of the Dentists employed
or engaged by Provider.
2.17 Training.
Manager shall furnish training services to Provider with respect to all non-clinical aspects of the operations of Provider (other than
matters related to clinical decision-making), including, without limitation, administrative, financial, billing, compliance and equipment
maintenance matters, provided that such training does not interfere with Provider’s independent professional judgment or require
the Provider to act in a manner which violates the professional standards for dentistry.
2.18 Quality
Assurance and Utilization Management. Manager agrees to develop for Provider’s approval, and to implement for Provider, a quality
assurance and improvement and utilization management program in accordance with recommendations made to Provider or as required by law
or any third-party payor. Provider shall cause Dentists to participate in the development of such programs and to comply with the standards,
protocols or practice guidelines established thereby, provided that such programs do not interfere with Provider’s independent
professional judgment or require the Provider to act in a manner which violates the professional standards for dentistry.
2.19 Compliance.
Manager shall assist Provider to operate in compliance with all laws and develop a comprehensive corporate compliance plan for Provider
and implement same. Manager shall assist Provider in establishing a culture that fosters the prevention, detection and resolution of
instances of misconduct. Manager shall provide reasonably necessary compliance training to Provider Dentists and Licensed Personnel.
Manager shall ensure compliance with the corporate compliance plan by the Non-Dentist Personnel.
2.20 Patient
Dental Records. Manager shall assist Provider in the completion, maintenance and storage of patient dental records, including by
providing Provider Dentists with the administrative support necessary to complete dental records and periodically reviewing dental records
to confirm completeness. With regard to the privacy of medical (and dental) records, Manager shall, in consultation with and the approval
of Provider, establish plans, policies and/or procedures that comply with the Health Insurance Portability and Accountability Act of
1996 and regulations promulgated thereunder, as the same may be from time to time amended (“HIPAA”), including the Standards
for Privacy of Individually Identifiable Health Information, the Security Standards for the Protection of Electronic Protected Health
Information and the Standards for Electronic Transactions and Code Sets promulgated pursuant to HIPAA and any laws of any state where
Provider conducts business relating to patient privacy and/or the security, use or disclosure of health care records.
2.21 Disclaimer.
To the extent Manager provides Provider with equipment or Offices, Provider acknowledges that Manager is not the manufacturer of the
Equipment or the manufacturer’s agent or the developer, architect or owner of the Offices and Manager will “pass-through”
to Provider any applicable warranties of the manufacturer. ACCORDINGLY, PROVIDER HEREBY AGREES TO TAKE THE OFFICES, IF ANY, AND
EQUIPMENT, IF ANY, IN AN “AS IS” CONDITION. MANAGER HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EITHER
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE EQUIPMENT OR THE OFFICES, INCLUDING WITHOUT LIMITATION, THE DESIGN
OR CONDITION OF THE OFFICES AND THE EQUIPMENT AND THE OFFICES AND THE EQUIPMENT’S MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP, OR AS TO PATENT INFRINGEMENT OR THE LIKE.
2.22 Use
of Third Parties, Affiliates, and Subsidiaries. In connection with Manager’s provision of any management, administrative, business,
billing and other services described in this Agreement, Provider hereby authorizes Manager to furnish personnel employed by third parties
or any affiliates or subsidiaries of Manager, or otherwise arrange for the provision of such services through third parties or any affiliates
or subsidiaries of Manager in connection with the provision of such services, in Manager’s sole discretion.
3. Professional
Control Retained by Provider. Provider shall be responsible for and shall have complete authority, supervision and control over
its provision of Professional Services, exercise of independent professional judgment, and compliance with the professional standards
for dentistry. Any purported delegation of authority by Provider to Manager that would require or permit Manager to engage in the practice
of dentistry, interfere with Provider’s independent professional judgment, require the Provider to act in a manner which violates
the professional standards for dentistry, or provide Professional Services shall be prohibited and deemed ineffective, as Provider shall
have the sole authority, management and control with respect to such matters. Manager shall not be required or permitted to engage in,
and Provider shall not request Manager to engage in, activities that constitute the practice of dentistry in jurisdictions in which Provider
furnishes dental care. To the extent that any services to be provided by Manager hereunder would otherwise exceed the scope of services
that an administrative service organization may lawfully provide pursuant to applicable law, this Agreement shall automatically be amended
to remove the offending term(s). Manager shall not direct, control, influence, restrict or interfere with the exercise of independent
clinical, dental or professional judgment by Provider or any Dentist or other Licensed Personnel employed or engaged by Provider in providing
Professional Services. In furtherance thereof, Manager shall not engage in any activity that involves the unlicensed practice of dentistry,
including but not limited to the following:
3.1 assignment
of Dentists to treat patients;
3.2 assumption
of responsibility for the care of patients, including the treatment options available;
3.3 determining
what diagnostic tests or treatments are appropriate for a particular condition;
3.4 determining
the need for referrals to or consultation with another dentist/specialist;
3.5 determining
the type, extent, availability, or quality of dental or other dental services;
3.6 determining
the type of dental materials available, prescribed, or dispensed;
3.7 controlling
the volume of patients;
3.8 determining
fee schedules for dental services and materials, and the establishment thereof, including billing methods;
3.9 controlling
information disseminated to the public regarding dental services;
3.10 diagnosing,
treating, prescribing, or operating for any disease, pain, deformity, deficiency, injury, or physical condition of the human tooth, teeth,
alveolar process, gums or jaw, or adjacent or associated structures and
3.11 any
activity that involves the practice of dentistry and the provision of professional dental services under applicable legal requirements
or that would cause Manager to be subject to licensure under the applicable state laws and regulations.
4. No
Inducement: No Income Guarantee. Manager and Provider agree that they have reached agreement regarding the terms and conditions
of this Agreement in accordance with a good faith determination of the fair market value thereof. Manager shall neither have nor exercise
any control or direction over the number, type, or recipient of patient referrals and nothing in this Agreement shall be construed as
directing or influencing such referrals. Nothing in this Agreement is to be construed to restrict the professional judgment of Provider
or any Dentist to use any facility where necessary or desirable in order to provide proper and appropriate treatment or care to a patient
or to comply with a patient’s wishes. No part of this Agreement shall be construed to induce, encourage, solicit or reimburse the
referral of any patients or business. The Parties acknowledge that neither this Agreement nor any other agreement between the Parties
requires or encourages the referral of patients to one another or any of their respective affiliates. Each Party represents and warrants
to the other that no payment made under this Agreement shall be in return for the referral of patients or business. Furthermore, Manager
has not guaranteed to Provider that the arrangements contemplated hereunder will guarantee any amount of income to Provider.
5. Relationship
of the Parties. The Parties expressly understand and agree that nothing contained in this Agreement shall be construed to create
a joint venture, partnership, association or other affiliation or like relationship between the Parties, it being specifically agreed
that their relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement.
The Parties agree that their respective employees shall not have any claim under this Agreement or otherwise against the other Party
or any of the other Party’s affiliates for vacation pay, paid sick leave, retirement benefits, social security, workers’
compensation, health, disability, professional malpractice or unemployment insurance benefits or other employment benefits of any kind.
6. Responsibilities
of Provider.
6.1 Dentists
and Licensed Personnel. Provider shall have the authority to engage (whether as employees or as independent contractors), manage,
control, promote, discipline, suspend and terminate the services of Dentists and, to the extent required by applicable law, other Licensed
Personnel, provided however, Provider shall retain that number of Dentists and other Licensed Personnel as are reasonably necessary and
appropriate for the provision of the Professional Services as mutually agreed on by Manager and Provider. Provider shall establish salary
and fringe benefits for Dentists in consultation with Manager and consistent with prior budget planning. Manager shall establish salary
and fringe benefits for other non-Licensed Personnel in consultation with Provider. Nothing contained herein shall limit Provider’s
duty and obligation to control all aspects of the practice of dentistry, including, without limitation, clinical training and clinical
supervision of the Dentists, Licensed Personnel, and the care and safety of patients. Manager shall neither control, manage, nor direct
any Dentist or other Licensed Personnel in the performance of Professional Services. Notwithstanding the foregoing, Manager shall have
the ability, as part of the Services, to develop guidelines, subject to Provider’s review and approval, for the hiring or retention
of Dentists and Provider covenants to hire or retain as well as terminate Dentists in accordance with such guidelines. With the assistance
of Manager, Provider shall establish work schedules for all Dentists necessary to ensure adequate coverage; provided that Manager shall
control all decisions relating to Non-Dentist Personnel. Provider shall have full responsibility for and shall supervise, manage and
control all dental services provided by Non-Dentist Personnel.
6.2 Licenses,
Certifications, Standards of Care. Provider shall require each Dentist and Licensed Personnel employed or engaged by Provider to
(a) maintain without restriction all licenses, certifications, registrations and professional liability insurance necessary to provide
the Professional Services; (b) perform all Professional Services in accordance with all laws and with prevailing and applicable
standards of care and professional standards for dentistry, and in accordance with the Policies (subject to the exercise of independent
professional judgment in accordance with Section 3 herein); and (c) maintain his or her skills through continuing education
and training.
6.3 Peer
Review. Provider shall implement appropriate peer review and corrective action procedures for the Dentists and Licensed Personnel
employed or engaged by Provider. Provider shall provide Manager with prompt notice of any complaints relating to any Dentists or Licensed
Personnel arising out of the Professional Services rendered.
6.4 Actions
Requiring Manager’s Approval. Notwithstanding anything herein to the contrary, Provider delegates to Manager the following
actions, and consistent with such delegation agrees that Provider shall not take any such action without the prior written approval of
Manager:
(a) the
issuance of, or agreement to issue, equity of Provider or of any security convertible into Provider equity;
(b) the
payment of any dividends on Provider’s equity or other distribution to Holder;
(c) any
sale, assignment, pledge, lease, exchange, transfer or other disposition, including, without limitation, a mortgage or other security
device, of assets or leases, including Provider’s accounts receivable;
(d) any
purchase or other acquisition of assets at any aggregate cost to Provider exceeding Five Thousand Dollars ($5,000);
(e) any
incurrence of loans or other indebtedness by Provider, or any grant of a lien, security interest or other encumbrance on the assets of
Provider;
(f) any
reclassification or recapitalization of equity of Provider;
(g) any
redemption or purchase of any equity of Provider;
(h) any
amendment to the governing documents of Provider;
(i) the
dissolution or liquidation of Provider;
(j) the
entering into of any contract by Provider committing Provider to incur more than Five Thousand Dollars ($5,000) in expenses on an annual
basis (in addition to complying with any internal approval processes in respect of cash expenditures or otherwise); and
(k) the
creation or any indebtedness or any other obligation of Provider to Holder.
Notwithstanding anything to the contrary contained
herein, Manager acknowledges and consents to the existing financing relationship (the “Financing”) provided by U.S.
Bank National Association, a national banking association (the “Lender”), to the Provider and the Manager, among others,
and no further consent or approval is required from the Manager in connection with any aspect of the Financing.
6.5 Continuing
Education. Provider shall ensure that each Dentist and Licensed Personnel shall obtain the required continuing professional education
for his or her specialty in each state where such Dentist or Licensed Personnel provide professional services and shall provide documentation
of the same to Manager.
6.6 Disciplinary
Actions. Provider shall, and shall require each of its Dentists or Licensed Personnel to, disclose to Manager during the term of
this Agreement: (a) the existence of any proceeding instituted by any plaintiff, governmental agency, health care facility, peer
review organization or professional society which involves any allegation of substandard care, mistake, negligence or professional misconduct
raised against any Dentist, (b) the existence of any administrative process or other proceeding pursuant to which the credentialed
status of any Dentist may be revoked or restricted, and (c) the exclusion of any Dentist, Licensed Personnel or Provider from participation
in any federal or state health care program or any third-party payor’s provider network.
6.7 Outside
Activities. Provider and its Dentists shall devote their best efforts to fulfill their obligations hereunder. Provider and its Dentists
shall not engage in any other professional activity, whether or not such business activity is pursued for gain, profit, or other pecuniary
advantage, which would interfere with the performance of Provider’s duties hereunder, without the prior written consent of Manager,
which consent shall not be unreasonably withheld.
7. Compliance.
The parties agree to cooperate with one another in the fulfillment of their respective obligations under this Agreement, and to comply
with the requirements of law and with all ordinances, statutes, regulations, directives, orders, or other lawful enactments or pronouncements
of any federal, state, municipal, local or other lawful authority applicable to Provider or Manager.
8. Payments
and Fees.
8.1 Management
Fee. As compensation for the Services provided by Manager under this Agreement, Provider shall pay to Manager a Management Fee as
set forth in Exhibit B. Manager shall withdraw the Management Fee for each full or partial month of Services provided during
the Term from Provider’s bank account on the 15th day of each following month. Manager shall furnish Provider with a monthly statement
detailing the Management Fee and all expenses and compensation due to Manager for the immediately preceding month.
8.2 Re-Negotiation
of Management Fee. Commencing on the Effective Date, the Management Fee shall increase automatically by [******************] annually,
unless otherwise agreed upon in writing by the parties. Notwithstanding the foregoing, either Provider or Manager may request that the
Management Fee be renegotiated every six (6) months (“Renewal Date”) starting from the six-month anniversary
of the Effective Date. Either Provider or Manager may provide notice of its desire to renegotiate the Management Fee by sending written
notice to the other Party setting forth its intent to renegotiate the Management Fee. Upon a Party’s receipt of a written notice
from the other Party to renegotiate the Management Fee, the Parties shall have a period of thirty (30) days after the Renewal Date in
which to negotiate in good faith an adjustment to the Management Fee. If the Parties agree on a new Management Fee, Exhibit B
shall be revised to reflect the revised Management Fee. However, if the Parties are unable to reach a mutual agreement in writing of
a renegotiated Management Fee by the expiration of such thirty (30) day period, the existing Management Fee will remain in place.
8.3 Reimbursement
of Costs and Expenses. In addition to the Management Fee, Manager shall be entitled to full reimbursement (without mark-up) for all
costs, expenses and liabilities paid or satisfied by Manager in connection with its provision of Services under this Agreement or otherwise
arising out of the operation, ownership or maintenance of the business of Provider, including, without limitation, expenses incurred
by Manager pursuant to Leases for Practice Space entered into by Manager or assigned by Provider to Manager. Manager shall submit an
invoice to Provider for all such costs and expenses. Each such invoice shall state with reasonable detail the costs and expenses that
were incurred by Manager.
8.4 Assignment
to Manager. To the extent permitted by applicable law and payor contractual provisions, Provider assigns to Manager all of Provider’s
rights and interests in all revenues of Provider such that all revenues of Provider shall be paid to and collected by Manager during
the Term of this Agreement; provided, however, that no assignment shall be made of any such rights or interests, the assignment of which
is prohibited by law (for example, amounts receivable from state and federal health care programs (e.g., Medicare, Medicaid or TRICARE)).
Provider hereby issues a standing instruction, which it shall confirm upon written request from time to time, that all payments (excluding,
however, state and federal health care program payments) due to Provider shall be remitted directly to Manager as its agent and attorney-in-fact
hereunder.
8.5 Application
of Payments. Provider hereby directs Manager to apply Provider’s revenues monthly for the following purposes, in the order
of priority set forth below:
(a) to
pay any refunds or other amounts owed to patients or third party payors as reasonably approved by Provider;
(b) to
pay all cumulative direct costs and expenses of operating Provider’s business, including, without limitation, insurance premiums,
payroll and benefits for Provider employees, marketing expenses, supply expenses, equipment purchase and lease expenses, auditing and
tax preparation fees and fees of professional advisors, such as attorneys;
(c) to
pay all cumulative direct or indirect expenses incurred by Manager (including, without limitation, an allocable percentage of Manager’s
corporate overhead) in providing the Services, including, without limitation, expenses relating to the Billing and Collection Services,
and in carrying out its duties hereunder on behalf of Provider; and
(d) to
pay Manager the Management Fee.
8.6 Evaluation
of Reasonableness. The Management Fee reflects the fair market value of Manager’s Services. Payment of the Management Fee is
not intended to be and shall not be interpreted or applied as permitting Manager to share in Provider’s fees for the Professional
Services, and is acknowledged as the Parties’ negotiated agreement as to the reasonable fair market value of the Services furnished
by Manager pursuant to this Agreement and related agreements, considering the nature and extent of the Services required and the investment
made by Manager.
8.7 Default.
Any failure by Provider to pay any amounts due hereunder shall constitute a default hereunder (a “Default”). Upon
the occurrence of a Default, in addition to all rights and remedies set forth in this Agreement, Manager may exercise from time to time
any rights and remedies available to it by law or in equity, including the rights and remedies set forth in the Uniform Commercial Code
as in effect from time to time in the jurisdictions in which Provider furnishes dental care.
9. Required
Notices.
9.1 Provider
will give notice to Manager promptly upon becoming aware of the occurrence of the following:
(a) the
commencement of a case or proceeding against Provider or any Dentist seeking a decree or order in respect of Provider (i) under
Title 11 of the United States Code, as now constituted or hereafter amended or any other applicable federal, state or foreign bankruptcy
or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official)
for Provider or of any substantial part of any such Person’s assets, or (iii) ordering the winding-up or liquidation of the
affairs of Provider, and such case or proceeding shall remain undismissed or unstayed for sixty (60) days or more or such court shall
enter a decree or order granting the relief sought in such case or proceeding;
(b) (i) the
filing of a petition seeking relief under Title 7 or 11 of the United States Code, as now constituted or hereafter amended, or any other
applicable federal, state or foreign bankruptcy or other similar law by Provider, (ii) the failure to contest in a timely and appropriate
manner or consenting to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of Provider, or of any substantial
part of any such Person’s assets, (iii) the making of an assignment for the benefit of creditors by or on behalf of Provider,
(iv) the taking of any company action in furtherance of any of the foregoing by Provider; or (v) the admission in writing of
its inability to, or shall be generally unable to, pay its debts as such debts become due by Provider;
(c) the
loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by Provider;
(d) the
commencement of any proceeding before any governmental authority seeking a determination that this Agreement or the Equity Transfer Restriction
Agreement, substantially in the form set forth on Exhibit C, dated of even date herewith, by and between Provider and Holder
(the “Equity Transfer Restriction Agreement”) and together with this Agreement, the “Management Services
Documents”, pertaining or related to Provider is invalid or unenforceable;
(e) the
occurrence of any damage to, or loss, theft or destruction of, any material assets of Provider, or any strike, lockout, labor dispute,
embargo, condemnation, pandemic, declared governmental emergency, act of God or public enemy, or other casualty, or any order or injunction
of any court or any administrative or regulatory agency which in any of the foregoing cases causes, for more than five (5) consecutive
business days, the cessation or substantial curtailment of revenue producing activities of Provider if such event or circumstance is
not covered by business interruption insurance;
(f) any
breach or default by Provider under any Management Services Documents to which it is a party or under any agreement, document or instrument
to which it is a party evidencing indebtedness or an amount due in excess of $500,000;
(g) the
failure of the shares of Provider to be subject to the Equity Transfer Restriction Agreement;
(h) the
commencement of any litigation or proceeding against Provider or Holder that (i) seeks damages in excess of $50,000, (ii) seeks
injunctive relief, or (iii) alleges criminal misconduct by Provider, Manager and any of their respective affiliates; or
(i) the
attachment, seizure, levy or becoming subject to a writ or distress warrant of assets with a fair market value of $50,000 or more in
the aggregate of Provider or such assets coming within the possession of any receiver, trustee, custodian or assignee for the benefit
of creditors of Provider and such condition continues for ten (10) days or more.
10. Term
and Termination.
10.1 Term.
This Agreement shall have an initial term commencing as of the Effective Date and continuing in full force and effect for thirty (30)
years (the “Initial Term”) and shall renew automatically for additional five (5) year terms thereafter, unless
terminated as provided herein (the Initial Term and any subsequent terms shall be referred to as the “Term”).
10.2 Termination
By Manager Without Cause. Manager may terminate this Agreement at any time without cause upon sixty (60) days advance written notice
to Provider.
10.3 Immediate
Termination By Manager. Manager shall have the right, but not the obligation, to terminate this Agreement immediately upon notice
to Provider of any of the following events:
(a) the
cancellation or non-renewal of the professional or malpractice insurance of Provider or any employee of Provider;
(b) the
dissolution of Provider;
(c) the
suspension or exclusion of Provider or any employee of Provider from any state or federal health care program (e.g., Medicare, Medicaid
or TRICARE);
(d) the
date upon which any of the stock in Provider held is transferred or attempted to be transferred voluntarily, by operation of law or otherwise,
to any person without the prior approval of Manager;
(e) the
merger, consolidation, reorganization, sale, liquidation, dissolution, or other disposition of all or substantially all of the stock
or assets of Provider without the prior written approval of Manager;
(f) failure
of Provider to pay the Management Fee in the time frames set forth in Article 8 hereof; or
(g) Provider’s
breach of any provision of Article 12 herein.
10.4 Immediate
Termination By Provider. Provider shall have the right, but not the obligation, to terminate this Agreement immediately upon notice
to Manager of the suspension or exclusion of Manager or any of Manager’s Affiliates from any state or federal health care program
(e.g., Medicare, Medicaid or TRICARE), or if the Manager or any of Manager’s Affiliates is convicted of, or pleaded guilty or nolo
contendere to any crime listed in 42 U.S.C. § 1320a-7 and such person remains affiliated with Manager in any capacity for thirty
(30) days after written notice of such event. For purposes of this Section, Manager’s Affiliates means any person or entity that
directly or indirectly through one or more intermediaries controls Manager or any person or entity that directly or indirectly, beneficially
owns at least fifty percent (50%) of Manager’s outstanding equity securities.
10.5 Termination
By Either Party. This Agreement may be terminated as follows:
(a) by
mutual written agreement of the Parties;
(b) by
either Party immediately upon the filing of a petition in bankruptcy or the insolvency of the other Party that is not discharged or dismissed
within ninety (90) days of such filing;
(c) by
either Party upon a material breach of a provision hereof by the other Party, provided that such breach continues for a period of thirty
(30) days after written notice thereof, which shall set forth with particularity the reason(s) for such breach) has been given by
the non-breaching Party to the other Party; or
(d) by
either Party as specifically herein provided.
10.6 Termination
Obligations. In the event of termination or expiration of this Agreement, Provider shall pay all Management Fees and costs and expenses
owing to Manager hereof up through and including the date of termination or expiration. In the event of termination or expiration of
this Agreement, Manager will, upon request by Provider, immediately provide Provider a hard copy and electronic copy, of all Provider-related
billing, collection, accounts receivable, financial, personnel, and practice management data and information maintained by Manager in
electronic form. Furthermore, after termination or expiration of this Agreement, the Parties shall reasonably cooperate with one another,
and provide each other access to such books, records and information as either party may reasonably request, for purposes of defending
against any subpoena, government or third-party payor investigation, audit, or any lawsuit or proceeding instituted by any third party
and relating to any alleged or actual acts or omissions of either Party during the term of this Agreement, or for any other legitimate
purpose.
10.7 Effect
of Termination. In the event of termination or expiration of this Agreement, Provider shall no longer have any right to the equipment,
supplies, personnel and Services provided by Manager hereunder and Provider shall no longer have the right to use or otherwise benefit
from the Confidential Information (as such term is defined in Section 12.2 herein) in any form or fashion. Subject to Section 10.5
and Section 11.4, Provider shall immediately return to Manager any equipment, records and other items provided hereunder
(including all copies thereof) and cease using any of the Confidential Information. In the event of termination under this Article 10,
the Parties will not enter into another agreement for the Services on materially different financial terms prior to the one (1) year
anniversary of the Effective Date. No damages shall be owed or paid by one Party to the other Party in connection with a termination
of this Agreement.
11. Records
And Record Keeping.
11.1 Access
to Information. Provider hereby authorizes and grants to Manager full and complete access to all information, instruments and documents
relating to Provider that may be reasonably requested by Manager to perform its obligations hereunder, and shall disclose and make available
to representatives of Manager for review and photocopying all relevant books, agreements, papers and records of Provider. Provider shall,
at all times during the Term and at all times thereafter, make available to Manager for inspection by its authorized representatives,
during regular business hours, at the principal place of business of Provider, any Provider records determined by Manager to be necessary
to perform the Services and carry out its responsibilities hereunder or necessary for the defense of any legal or administrative action
or claim relating to said records.
11.2 Manager’s
Records and Systems. At all times during and after the Term of this Agreement, all business records and information, including, without
limitation, all books of account and general administrative records and all information generated under or contained in the management
information system pertaining to Provider, relating to the business and activities of Manager, shall be and remain the sole property
of Manager. Provider acknowledges that Manager is the sole owner of any proprietary electronic records systems/software and that Provider
shall have no license or other right to copy, use, or transfer any rights to such systems/software, except for the right of access to
the patient medical and dental records as set forth herein as required by law and as necessary to provide the Professional Services.
11.3 Confidentiality
of Records. Manager and Provider will adopt procedures to assure the confidentiality of the records relating to the operations of
Manager and Provider, including, without limitation, all statistical, financial and personnel data related to the operations of Manager
and Provider that is not otherwise available to third parties publicly or by law.
11.4 Maintenance,
Retention and Storage of Records. Manager’s Services shall include oversight of the maintenance and storage of all patient
dental records of Provider in its possession in accordance with applicable law. Manager shall maintain electronic copies of patient dental
records for a minimum of seven (7) years from the last date of service to the patient, and longer if required by law, required by
any third party payor or necessary to protect the interests of Provider. Provider shall have access to all patient medical and dental
records as necessary to defend against any subpoena, government or third-party payor investigation, audit, or any lawsuit or proceeding
instituted by any third party and relating to any alleged or actual acts or omissions of Provider, or for any other legitimate purpose.
Following the termination of this Agreement for any reason, Manager will return in electronic format all patient medical and dental records
to Provider.
11.5 Privacy
and Security of Patient Records. The Parties agree to discharge their respective duties hereunder in accordance with the applicable
provisions of HIPAA and all applicable state and federal laws governing the privacy and security of dental records. In furtherance of
the foregoing, the Parties shall execute the HIPAA Business Associate Agreement attached hereto as Exhibit D.
12. Protective
Covenants.
12.1 Confidential
Information. The Parties expressly acknowledge that, pursuant to this Agreement, each Party and its respective officers, directors,
employees, agents and contractors will be given access to, and be provided with, business methods, trade secrets and other proprietary
information of the other Party in connection with their respective duties and activities. Each Party expressly acknowledges and agrees
that Confidential Information, as defined below in Section 12.2, is proprietary and confidential and if any of the Confidential
Information was imparted to or became known by any persons engaging in a business in any way competitive with that of the other Party,
including, without limitation, the Party receiving Confidential Information and its officers, directors, employees, agents and contractors,
such disclosure would result in hardship, loss, irreparable injury and damage to the non-disclosing Party, the measurement of which would
be difficult, if not impossible, to determine. Accordingly, each Party expressly agrees that the other Party has a legitimate interest
in protecting the Confidential Information and its business goodwill, that it is necessary for each Party to protect its business from
such hardship, loss, irreparable injury and damage, that the following covenants are a reasonable means by which to accomplish those
purposes, and that violation of any of the protective covenants contained herein shall constitute a breach of trust and is grounds for
immediate termination of the Agreement and for appropriate legal action for damages, enforcement and/or injunction.
12.2 Trade
Secrets, Proprietary and Confidential Information. For purposes of this Agreement, “Confidential Information”
is information obtained by a Party from or regarding the other Party and includes, without limitation: (a) lists containing the
names of past, present and prospective clients, patients, or suppliers; (b) the past, present and prospective methods, procedures
and techniques utilized in identifying prospective clients or patients and in soliciting the business thereof; (c) the past, present
and prospective methods, procedures and techniques used in the operation of the Party’s business, including, without limitation,
the methods, procedures and techniques utilized in marketing, provision of services and pricing; (d) compilations of information,
records and processes which are owned by a Party and/or which are used in the operation of the Party’s business; and (e) any
information directly or indirectly obtained pursuant to this Agreement; provided, however, that (i) Confidential Information shall
in no event include Confidential Information (A) which was generally available to the public at the time of disclosure by the Party
or (B) which becomes publicly available other than as a consequence of the breach by the Party of the Party’s confidentiality
obligations hereunder, and (ii) disclosure or release of such Confidential Information shall not be a breach of this Agreement if
a court of competent jurisdiction orders its disclosure or release.
12.3 Restrictive
Covenants.
(a) Non-Competition.
Provider hereby irrevocably appoints Manager as its agent and attorney-in-fact during the term of this Agreement with full power
and authority to enforce the terms of any employment or independent contractor agreements to which it is a party and any noncompetition,
confidentiality and similar covenants or restrictions of which it is the beneficiary. Provider will require its Dentists to execute a
document confirming the applicable Dentist’s agreement with such restrictive covenant terms as are approved by Manager. During
the term of this Agreement, Provider and Holder shall not establish, operate or provide dental services at any office, clinic or other
health care facility providing services substantially similar to those provided by Provider pursuant to this Agreement anywhere within
25 miles of any facility operated by Manager without the express written consent of Manager.
(b) Non-Solicitation;
Non-Disparagement; Goodwill. The Parties agree that each shall not, during the Term and for two (2) years following termination
or expiration of this Agreement, for any cause whatsoever, directly or indirectly, take any action that constitutes, results or may reasonably
be expected to result in: (a) soliciting, diverting or interfering with any relationship that either Party or any of its affiliates
has with any patients, dental care providers or suppliers; (b) soliciting the termination of, or diverting or interfering with any
relationship that either Party has with any person or entity affiliated with it or any of its affiliates as an independent contractor,
supplier or provider; (c) entering into any agreement, the purpose of which would violate this Section 12.3; (d) soliciting,
inducing or encouraging any individual employed or engaged by or affiliated with the other Party or any of its affiliates (presently
or in the then most recent twelve (12) month period) to curtail or terminate such affiliation or employment, or take any action that
results in, or might reasonably be expected to result in any employee or contractor ceasing to perform services for the other Party or
its affiliates; or (e) disparaging the other Party or any of its officers, directors, employees or affiliates. The Parties shall
portray each other in a positive light to the general public. Nothing in this Section 12.3 is intended to prohibit ordinary
course employment decisions or the placement of general advertisements for employment, or to prohibit either Party or any of its affiliates
who is a practicing dentist from engaging in the professional practice of dentistry or exercising such person’s independent dental
judgment, without consideration for any pecuniary interests of said dentist, nor to require the referral of any patients for any service
provided by either Party or its affiliates.
12.4 Survival
of Protective Covenants. Each covenant herein shall be construed as an agreement independent of any other provision of this Agreement,
unless otherwise indicated herein, and shall survive the termination of this Agreement, and the existence of any claim or cause of action
of either Party against the other Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement
of such covenant.
12.5 Extension
of Restrictive Periods. If a Party violates the protective covenants set forth in this Article 12 and the aggrieved Party
brings legal action for injunctive or other relief hereunder, the aggrieved Party shall not, as a result of the time involved in obtaining
the relief, be deprived of the benefit of the full restrictive periods of the protective covenants contained in this Article 12.
Accordingly, such restrictive periods for the purposes of this Article 12 shall be deemed to have a duration of the respective
time periods stated in this Article 12 computed from the date relief is granted, but reduced by the time between the period
when the restriction began to run and the date of the first violation of the covenant by such Party.
12.6 Specific
Performance and Other Remedies. The Parties understand and acknowledge that violation of this Article 12 will cause irreparable
harm to the non-violating Party, the exact amount of which will be impossible to ascertain, and for that reason the Parties agree that
a Party shall be entitled to seek, without the necessity of showing any actual damage or posting a bond (unless required by law), from
any court of competent jurisdiction temporary or permanent injunctive relief and/ or specific performance of this Agreement restraining
a Party or any person from any act prohibited by this Article 12. Nothing in this Section 12.6 shall limit a
Party’s right to recover any other damages or remedies to which it is entitled as a result of the other Party’s breach. If
any one or more of the provisions of this Article 12 or any word, phrase, clause, sentence or other portion of this Article 12
shall be held to be unenforceable or invalid for any reason, such provision or portion of provision shall be modified or deleted in such
a manner so as to make this Article 12, as modified, legal and enforceable to the fullest extent permitted under applicable
law.
13. Indemnification.
13.1 Provider
Indemnification. Provider hereby agrees to defend, indemnify and hold Manager and its affiliates and their respective officers, employees,
shareholders, successors and assigns (“Manager Indemnified Parties”) harmless from and against any and all liabilities,
causes of action, damages, losses, demands, claims, penalties, judgments, costs and expenses (including, without limitation, reasonable
attorneys’ fees and related costs) of any kind or nature whatsoever (“Losses”) that may be sustained or suffered
by any Manager Indemnified Party in any way caused by or arising from Provider’s gross negligence, fraud or willful or intentional
or negligent misconduct related to its operations, provision of Professional Services or any material breach by Provider of any of its
representations, warranties, covenants, obligations or duties under this Agreement, to the extent such Losses are not covered by Provider’s
insurance.
13.2 Manager
Indemnification. Manager hereby agrees to defend, indemnify and hold Provider, Holder and their respective affiliates and their respective
managers, members, officers, employees, shareholders, successors and assigns (“Provider Indemnified Parties”) harmless
from and against any and all Losses that may be sustained or suffered by any Provider Indemnified Party in any way caused by Manager’s
gross negligence, fraud or willful or intentional or negligent misconduct related to its provision of Services or any material breach
by Manager of any of its representations, warranties, covenants, obligations or duties under this Agreement, to the extent such Losses
are not covered by Manager’s insurance.
13.3 Manager
Release and Indemnification of Holder.
(a) Manager
hereby waives and releases its right to sue Holder for any claim, right, or cause of action which may arise against Holder, as sole shareholder
or sole member of Provider, pursuant to the terms of this Agreement, as of the Effective Date and up through the end of time except as
otherwise caused by Holder’s fraud or willful or intentional misconduct. In that regard, Manager hereby holds harmless, fully and
forever remises, releases and discharges Holder of and from any and all claims, demands, agreements, contracts, covenants, actions, suits,
causes of action, obligations, controversies, debts, costs, expenses, accounts, damages (whether actual, compensatory, direct, consequential,
or punitive), judgments, losses and liabilities of whatever kind or nature, in law, equity or otherwise whether known or unknown, whether
concealed or hidden, which it may have for or by reason of any matter, cause, or thing whatsoever, from the Effective Date up to the
end of time except as a result of Holder’s fraud or willful or intentional misconduct.
(b) Notwithstanding
the provisions of Section 13.1, Manager hereby agrees to defend, indemnify and hold Holder harmless from and against any
and all Losses that may be sustained or suffered by Holder in connection with Holder’s role as sole member, manager, director,
officer, employee or agent of Provider except as a result of Holder’s fraud or willful or intentional misconduct. Costs and expenses
incurred by the Holder in defense of any litigation giving rise to any such Losses (including attorneys’ fees) shall be paid by
Manager in advance of the final disposition of such litigation upon receipt by Manager of: (i) a written request for payment; (ii) appropriate
documentation evidencing the incurrence, amount, and nature of the costs and expenses for which payment is being sought; and (iii) an
undertaking adequate under applicable law made by or on behalf of Manager to repay the amounts so paid if it shall ultimately be determined
that Holder is not entitled to be indemnified by Manager under this Agreement.
(c) Survival.
The provisions of this Article 13 shall survive the termination of this Agreement for the duration of the applicable
statute of limitation.
14. Exclusivity.
During the Term of this Agreement, Manager shall serve as Provider’s sole and exclusive manager, and Provider shall not engage
any other persons to perform any of the duties or functions that Manager is explicitly required to provide hereunder or that are reasonably
expected to be able to be provided by a manager of a dental care practice.
15. Notices.
All notices, requests, consents, and other communications provided for by this Agreement shall be in writing, shall be addressed
to the receiving Party’s address set forth below or to such other address as a Party may designate by notice hereunder, and shall
be either: (a) delivered by hand, (b) sent by recognized overnight courier, or (c) sent by certified mail, return receipt
requested, postage prepaid to such address as each Party shall provide the other Party from time to time. Notice shall be deemed given
(i) upon delivery, if hand delivered, (ii) on the next business day, if sent next day delivery by a recognized overnight courier,
and (iii) if sent by certified mail, five (5) business days following the day such mailing is made. Any notices provided hereunder
shall contemporaneously be provided to the Lender at the following address: U.S. Bank National Association, U.S. Bank Commercial Banking,
800 Nicollet Mall, 3rd Floor, BC-MN-HO3W, Minneapolis, MN 55402, Attention: Daniel Miller.
16. Entire
Agreement: Amendment. This Agreement, together with the Employment Agreement, dated of even date herewith, by and between Provider
and Holder (the “Employment Agreement”), and that certain Equity Transfer Restriction Agreement contain the entire
agreement between the Parties hereto. In the event of a conflict between the Employment Agreement and this Agreement, then this Agreement
shall preempt the Employment Agreement except with respect to those matters that would reasonably result in Manager engaging in the practice
of or dentistry. No amendment, alteration or modification of this Agreement shall be valid unless in each instance such amendment, alteration
or modification is expressed in a written instrument duly executed in the name of the Party or Parties making such amendment, alteration
or modification and then only upon the prior written consent of the Lender.
17. General.
17.1 Duty
to Cooperate. The Parties acknowledge that the Parties’ mutual cooperation is critical to the ability of Manager to perform
successfully and efficiently its duties hereunder. Accordingly, each Party agrees to cooperate fully with the other in formulating and
implementing goals and objectives that are in Provider’s best interest.
17.2 Limited
Renegotiation.
(a) This
Agreement shall be construed to be in accordance with any and all federal and state laws, including, without limitation, laws governing
the state and federal healthcare programs and private third party payors. In the event there is a change in such laws, whether by statute,
regulation, agency or judicial decision or guidance that has any material effect on any term of this Agreement, then the applicable term(s) of
this Agreement shall be subject to renegotiation, and either Party may request renegotiation of the affected term or terms of this Agreement,
upon written notice to the other Party, to remedy such condition.
(b) The
Parties expressly recognize that upon request for renegotiation, each Party has a duty and obligation to the other only to renegotiate
the affected term(s) in good faith and, further, each Party expressly agrees that its consent to proposals submitted by the other
Party during renegotiation efforts shall not be unreasonably withheld provided such proposals would not materially alter the economic
outcome of the Agreement.
17.3 Choice
of Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Minnesota, without
regard to the conflict of law’s provisions thereof. The Parties hereby consent to personal jurisdiction and venue in any action
permitted to be brought in court pursuant to this Agreement in the State of Minnesota. Both Provider and Manager expressly waive any
right that either Party has or may have to a jury trial of any dispute arising out of or in any way related to this Agreement or any
breach thereof.
17.4 Waiver
of Breach. The waiver by either of the Parties of a breach or violation of any provision of this Agreement shall not operate as,
or be construed to be, a waiver of any subsequent breach of the same or other provision hereof.
17.5 Force
Majeure. Neither Party shall be liable or be deemed in default of this Agreement for any delay or failure to perform cause by Acts
of God, war, disasters, strikes, pandemics, governmental emergencies or any similar cause beyond the control of either Party.
17.6 Severability.
If any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder
of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms.
17.7 Successors
and Assigns. This Agreement shall bind each of the Parties and their respective successors and permitted assignees. Assignment by
Provider or Holder of any rights or obligations under this Agreement without the prior written consent of Manager is expressly prohibited.
Manager is permitted to assign this Agreement or any rights or obligations hereunder to any third party (including any lender or purchaser
of Manager) without the prior written consent of Provider or Holder and any such assignee is an intended third party beneficiary of this
Agreement.
17.8 Headings.
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
17.9 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall be one
and the same document.
17.10 Survival.
The provisions of Articles 12 and 13 and such other articles and sections of this Agreement which either expressly or by their
natures survive expiration or other termination of this Agreement shall survive such expiration or other termination of this Agreement
until each such provision expires in accordance with its respective terms.
17.11 Construction.
This Agreement has been drafted and negotiated jointly by the Parties, and this Agreement will be construed neither against nor in favor
of either Party.
17.12 Exhibits.
Any exhibits attached hereto are an integral part of this Agreement and are incorporated herein by this reference.
[Signature page follows]
IN WITNESS WHEREOF, the Parties
hereto have executed this Agreement, as of the day and year first above written.
| |
MANAGER: |
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|
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Park Dental Partners, Inc., a
Minnesota corporation |
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|
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By: |
/s/
Peter G. Swenson |
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Name: |
Peter G. Swenson |
| |
Title: |
Chief Executive Officer |
(Signatures Continued on Following Page)
Signature Page to Administrative Resources
Agreement
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the day and year first above written.
| |
PROVIDER: |
| |
|
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Orthodontic Specialists of Minnesota,
PLLC, a Minnesota professional limited liability company |
| |
|
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By: |
/s/
Alan Law |
| |
Name: |
Alan Law, D.D.S., Ph.D. |
| |
Title: |
President |
| |
HOLDER: |
| |
|
| |
HOLDER, solely for purposes of Section 1.2(b),
Article 12, Section 13.3 and Article 16 |
| |
|
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/s/
Alan Law |
| |
Alan Law, D.D.S., Ph.D., individually |
Signature Page to Administrative Resources
Agreement
EXHIBIT A
PRACTICE LOCATIONS LEASED DIRECTLY BY PROVIDER
| Location | |
LEASE ID | |
Address | |
City | |
State | |
Zip |
| Edina | |
LA0020 OSW-Edina | |
6545 France Ave 5 | |
Edina | |
MN | |
55435 |
EXHIBIT B
MANAGEMENT FEE
In consideration of the Services, Provider will pay Manager a monthly
management fee (the “Management Fee”) equal to [*******************************************] of Provider’s total
Net Collections for the applicable month.
“Net Collections” means the actual collected cash
receipts of Provider, net of patient and payor refunds and adjustments, and net of any payments to third party collection agencies.
The Management Fee shall be payable no later than the tenth (10th)
day of the month following the month for which it is due. The Management Fee shall be pro-rated for any partial month during the Term.
Manager is expressly authorized to, and shall, disburse from the Master Accounts all amounts owed by Provider to Manager pursuant to
this Agreement in accordance with the provisions of Section 2.1.
The Parties recognize that Provider may change in size and scope over
the term of this Agreement, which may cause the Management Fee, as adjusted, to no longer reflect the fair market value of the Services
provided pursuant to this Agreement; accordingly, the Parties will review the Management Fee at least annually and make appropriate adjustments
as the Parties may mutually agree to ensure that the Management Fee on a go-forward basis comports with the fair market value of the
increased or decreased demand for Management Services based on material changes to the size and scope of Provider.
EXHIBIT C
EQUITY TRANSFER RESTRICTION AGREEMENT
EQUITY TRANSFER RESTRICTION AGREEMENT
This Equity Transfer Restriction Agreement (this
“Agreement”), effective _______, 2023, is among
Orthodontic Specialists of Minnesota, PLLC, a Minnesota professional limited liability company (the “Company”), Alan
Law, D.D.S., Ph.D. (the “Holder”) and Park Dental Partners, Inc., a Minnesota corporation (“Manager”).
The Company, the Holder and Manager are collectively referred to herein as the “Parties”.
RECITALS
A. The
Holder holds the only outstanding equity interests of the Company (the “Interests”).
B. Manager
and its Affiliates provide certain non-professional management, administrative, advisory and back-office services required to support
the Company’s clinical operations.
C. The
Parties believe that it is in the best interest of the Company to restrict the transferability of the Restricted Securities (as defined
below) to promote the ongoing continuity of the Company for the benefit of the Company’s patients.
AGREEMENT
The Parties hereby agree as follows:
18. Restrictions
on Transfer. Except as otherwise provided in this Agreement, the Holder may not (voluntarily, involuntarily or by operation of law)
sell, assign, transfer, gift, pledge, hypothecate, encumber or otherwise dispose of (“Transfer”) any of the Interests
currently owned or hereafter acquired by the Holder or any other securities issued in respect thereof (whether by exchange, dividend,
split, reverse split, recapitalization, merger, consolidation or otherwise) (collectively, the “Restricted Securities”).
Any attempted transfer of Restricted Securities in violation of this Agreement will be null and void ab initio.
19. Transfer
of Restricted Securities in Certain Events. If a Transfer Event occurs, then all of the Restricted Securities then-held by the Holder
(or any heir, executor, administrator, personal representative, estate, testamentary beneficiary, donee, trustee in bankruptcy, successor
or assignee of the Holder) will immediately be deemed transferred to the Designated Transferee as of the date of the Transfer Event,
without action by the Holder. With consideration for the best interests of the Company and the continuity of care for its patients, Manager
may specify a future effective date for the transfer of the Restricted Securities to the Designated Transferee and may waive any particular
Transfer Event in its sole discretion; provided, however, that (i) no waiver given will be applicable except in the specific
instance for which it was given and no single waiver will preclude any other or further exercise of Manager’s rights under this
Agreement and (ii) Manager may not waive a Transfer Event occurring on account of the Holder’s disqualification from holding
the Restricted Securities under applicable Law.
19.1 “Transfer
Event” means (i) the Holder dies or becomes incompetent or permanently disabled, (ii) the Holder’s license
to practice dentistry in any state is suspended, revoked or otherwise limited (other than administrative suspensions cured within 60
calendar days) or the Holder otherwise becomes disqualified from holding the Restricted Securities under applicable Law or the Company’s
articles of organization, operating agreement and other governing documents, (iii) the Holder is debarred, excluded or suspended
from participating in any “federal health care program” as defined in 42 U.S.C. § 1320a-7b(f), subject to a civil monetary
penalty assessed under Section 1128A of the Social Security Act or listed on the General Services Administration published list
of parties excluded from federal procurement programs and non-procurement programs, (iv) the Holder attempts to Transfer any Restricted
Securities or cause the Company to transfer any equity securities of any of its subsidiaries not in compliance with this Agreement, (v) the
Company breaches or attempts to breach any management or business support services agreement then in effect between Manager and the Company
or any of its subsidiaries on account of any action or omission by the Holder, (vi) the Holder becomes insolvent, voluntarily files
for bankruptcy or similar protection from creditors, is subject to an involuntary petition for bankruptcy or similar protection, (vii) any
petition or other document is filed to cause or intended to cause a judicial, administrative, voluntary or involuntary dissolution of
the Company or (viii) any petition or other document is filed seeking judicial or administrative review of, or challenging the enforceability
of this Agreement, the Company’s articles of organization or any other agreement, document or instrument pertaining to the governance,
management or operation of the Company.
19.2 “Designated Transferee”
means a licensed professional designated by Manager who is permitted to own the Restricted Securities under applicable Law as then in
effect.
20. Transfer
of Restricted Securities. Upon a Transfer Event, in consideration for the Restricted Securities, the Designated Transferee will pay
to the Holder One Thousand and 00/100 U.S. Dollars ($1,000.00) (the “Purchase Price”), delivered in immediately available
funds within 30 calendar days after the Transfer of the Restricted Securities to the Designated Transferee.
20.1 Notwithstanding the Designated
Transferee’s obligation to pay the Purchase Price to the Holder pursuant to this Section 20 and subject to Section 20.2:
(a) the
Restricted Securities will be immediately deemed Transferred to the Designated Transferee upon a Transfer Event and thereafter the Holder
will only have the right to receive the Purchase Price from the Designated Transferee,
(b) neither
the Holder nor any purported transferee of the Restricted Securities (other than the Designated Transferee) will have or may exercise
any voting, economic or other rights or interests in the Restricted Securities or otherwise with respect to the Company, and
(c) the
Holder will automatically and immediately be deemed to have resigned from all director, limited liability company manager, officer or
other similar positions of the Company that were held by the Holder immediately before the Transfer Event.
20.2 As contemplated in Section 19,
the effective date of a Transfer Event may be extended by Manager for a reasonable period of time as reasonably required to provide any
necessary regulatory or contractual notices and obtain any necessary regulatory or contractual approvals or new licenses and avoid any
adverse effect on the continuity of patient care; during any such extended period, the Holder will hold the Restricted Securities in
trust for the benefit of the Designated Transferee and take all commercially reasonable actions requested by Manager and/or the Company
to provide such notices and obtain such approvals or licenses and ensure a smooth transition of the ownership of the Restricted Securities.
20.3 If the Designated Transferee
fails to timely pay the Purchase Price to the Holder in accordance with this Section 20, then the Holder’s only remedy
will be money damages and such failure will not negate or otherwise jeopardize the effectiveness of the Transfer of the Restricted Securities
to the Designated Transferee.
20.4 The Holder has completed
in blank the Restricted Securities Transfer Power attached hereto as Exhibit A to facilitate the agreements set forth herein.
21. New
Securities. The Holder will not cause or otherwise permit the Company to issue any new, substituted or additional securities to any
Person other than the Holder absent the prior written consent of the Parties and subject to the recipient of such new securities first
agreeing in writing that such new securities are subject to the restrictions and obligations in this Agreement applicable to the Restricted
Securities. Any attempted issuance of new securities in violation of this Agreement will be null and void ab initio. The restrictions
contained in this Agreement will apply to any new, substituted or additional securities issued to the Holder in respect of the Restricted
Securities and any other property distributed to the Holder in respect of the Restricted Securities upon any dividend, securities split,
reverse securities split, recapitalization, merger, reorganization or other change affecting the Company’s outstanding equity securities.
22. Subsidiary
Securities. The Holder will not cause or otherwise permit the Company to (a) Transfer any securities of any of the Company’s
subsidiaries (whether now in existence or hereafter created) or (b) authorize or issue any new, substitute or additional securities
to any Person other than the Company. Any attempted transfer or issuance of any securities of a subsidiary of the Company in violation
of this Agreement will be null and void ab initio.
23. Certificate
Legends. All certificates representing Restricted Securities will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
(a) ARE SUBJECT TO AN EQUITY TRANSFER RESTRICTION AGREEMENT DATED________________ AND
(b) MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ENCUMBERED EXCEPT AS PERMITTED IN ACCORDANCE
WITH SUCH SECURITIES TRANSFER RESTRICTION AGREEMENT. THE RECORD HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY OBTAIN
A COPY OF THE EQUITY TRANSFER RESTRICTION AGREEMENT FROM THE COMPANY UPON WRITTEN REQUEST AND WITHOUT CHARGE.
24. Miscellaneous.
24.1 Further Assurances.
Each Party will take all further actions and execute and deliver all further documents that are necessary to comply with the terms
of this Agreement.
24.2 Notices. All notices
and other communications required or permitted under this Agreement (i) must be in writing, (ii) will be duly given (A) when
delivered personally to the recipient or (B) one Business Day after being sent to the recipient by nationally recognized overnight
private carrier (charges prepaid) and (iii) addressed as follows (as applicable):
If to the Holder, to the most recent address for the Holder reflected
in the Company’s books and records.
| If to Manager: |
If to Company: |
or to such other respective address as each Party may designate by
notice given in accordance with this Section 24.2.
24.3 Entire Agreement. This
Agreement constitutes the complete agreement and understanding among the Parties regarding the subject matter of this Agreement and supersedes
any prior understandings, agreements or representations regarding the subject matter of this Agreement.
24.4 Amendments. The
Parties may amend this Agreement only pursuant to a written agreement executed by the Parties.
24.5 Non-Waiver. The
Parties’ respective rights and remedies under this Agreement are cumulative and not alternative. Neither the failure nor any delay
by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege,
and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power
or privilege or the exercise of any other right, power or privilege. No waiver will be effective unless it is in writing and signed by
an authorized representative of the waiving Party. No waiver given will be applicable except in the specific instance for which it was
given. No notice to or demand on a Party will constitute a waiver of any obligation of such Party or the right of the Party giving such
notice or demand to take further action without notice or demand as provided in this Agreement.
24.6 Assignment. No
Party may assign this Agreement or any rights under this Agreement, or delegate any duties under this Agreement, without the other Parties’
prior written consent; provided, however, that Manager may assign this Agreement or any of its rights under this Agreement or
delegate any of its duties under this Agreement without the consent of the other Parties.
24.7 Binding Effect; Benefit.
This Agreement will inure to the benefit of and bind the Parties and their respective successors and permitted assigns. Nothing in
this Agreement, express or implied, may be construed to give any Person other than the Parties and their respective successors and permitted
assigns any right, remedy, claim, obligation or liability arising from or related to this Agreement; provided, however, that the Designated
Transferee is an intended beneficiary of this Agreement and will have standing to enforce the provisions of this Agreement.
24.8 Severability. If
any court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, then the other provisions of this
Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or unenforceable.
24.9 References.
The headings of Sections are provided for convenience only and will not affect the construction or interpretation of this
Agreement. Unless otherwise provided, references to “Section(s)” and “Exhibit(s)” refer to the corresponding
section(s) and exhibit(s) of or to this Agreement. Each Exhibit is hereby incorporated into this Agreement by
reference. Reference to a statute refers to the statute, any amendments or successor legislation and all rules and regulations
promulgated under or implementing the statute, as in effect at the relevant time. Reference to a contract, instrument or other
document as of a given date means the contract, instrument or other document as amended, supplemented and modified from time to time
through such date.
24.10 Construction. Each
Party participated in the negotiation and drafting of this Agreement, assisted by such legal and tax counsel as it desired, and contributed
to its revisions. Any ambiguities with respect to any provision of this Agreement will be construed fairly as to all Parties and not
in favor of or against any Party. If question arises as to whether or not a Transfer Event has occurred, a good faith determination by
the board of directors or equivalent governing authority of Manager will control. All pronouns and any variation thereof will be construed
to refer to such gender and number as the identity of the subject may require. The terms “include” and “including”
indicate examples of a predicate word or clause and not a limitation on that word or clause. The term “Business Day”
means a day that is not a Saturday, Sunday or legal holiday on which banks are authorized or required to be closed in Minneapolis, Minnesota.
24.11 Governing Law. THIS
AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
24.12 Arbitration. Except
as expressly provided below in this Section 24.12, all controversies, claims and disputes arising from or relating to this
Agreement will be resolved by final and binding arbitration before a single neutral arbitrator located in Hennepin County, Minnesota,
conducted under the applicable rules of the American Arbitration Association. The arbitrator’s award will be final and binding
upon the Parties and judgment may be entered on the award. Each Party expressly waives its right to have any controversies, claims or
dispute arising from or related to this Agreement decided by a court or jury. The Parties and the arbitrator will maintain in confidence
the existence of the arbitration proceeding, all materials filed in conjunction therewith and the substance of the underlying dispute
unless and then only to the extent that disclosure is otherwise required by applicable Law.
24.13 Specific Enforcement.
The Holder acknowledges and agrees that (i) compliance with the Holder’s covenants and agreements in Section 18,
Section 19, Section 20 and this Section 24.13 is necessary to protect the goodwill and legitimate business
interests of the other Parties and their businesses, (ii) a breach of any such covenant or agreement will cause irreparable injury
to the other Parties and actual damages would be difficult to ascertain and would be inadequate, (iii) if the Holder breaches any
such covenant or agreement, then the other Parties will be entitled to injunctive relief and specific performance to enforce the terms
of this Agreement in addition to such other legal and equitable remedies that may be available (without any requirement to post bond
or other security), (iv) the Holder hereby waives the claim or defense that an adequate remedy at law exists for such a breach,
(v) the Holder hereby waives any claim or defense to the enforcement of such covenants and agreements arising from or related to
any other claim or cause of action that the Holder may have against any other Party and (vi) the Holder will reimburse the other
Parties for all costs and expenses (including reasonable attorneys’ fees and costs) arising from or related to the enforcement
of this Section 24.13.
24.14 Waiver of Trial by
Jury. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING IN CONNECTION WITH ANY
MATTER RELATING TO THIS AGREEMENT.
24.15 Counterparts. The
Parties may execute this Agreement in multiple counterparts, each of which will constitute an original and all of which, when taken together,
will constitute one and the same agreement. The Parties may deliver executed signature pages to this Agreement by facsimile, electronic
mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g.,
www.docusign.com) or other transmission method. No Party may raise as a defense to the formation or enforceability of this
Agreement, and each Party forever waives any such defense, either (i) the use of a facsimile, email, or such other transmission
method to deliver a signature or (ii) the fact that any signature was signed and subsequently transmitted by facsimile, email, or
such other transmission method.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
The Parties have signed this Equity Transfer Restriction
Agreement as of the date first written above.
| Company: |
ORTHODONTIC SPECIALISTS OF MINNESOTA, PLLC |
| |
|
| |
|
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By: |
|
| |
Name: |
|
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Title: |
|
| |
|
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|
| Holder: |
|
| |
Alan Law, D.D.S., Ph.D. |
| |
|
| |
|
| Manager: |
Park Dental Partners, Inc. |
| |
|
| |
|
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By: |
|
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Name: |
|
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Title: |
|
SIGNATURE PAGE TO EQUITY TRANSFER RESTRICTION
AGREEMENT
The undersigned, being the spouse of the Holder, joins in the execution
of this Agreement to evidence that the undersigned’s community property, tenants-by-the-entirety, or other similar interest, if
any, in and to the Restricted Securities is subject to the terms and conditions of this Agreement in all respects.
Acknowledged and Agreed:
EXHIBIT A
FORM OF RESTRICTED SECURITIES TRANSFER
POWER
[see attached]
EXHIBIT TO EQUITY TRANSFER RESTRICTION AGREEMENT
RESTRICTED SECURITIES TRANSFER POWER
For
value received, the undersigned hereby (i) sells, assigns and transfers to _________________________________________ all of the
undersigned’s equity interests of Orthodontic Specialists of Minnesota, PLLC, a Minnesota professional limited liability
company (the “Company”), standing in the undersigned’s name on the books and records of the Company and
(ii) irrevocably constitutes and appoints Park Dental Partners, Inc., a Minnesota corporation, as the undersigned’s
attorney to transfer such equity securities on the books of the Company with full power of substitution in the premises.
Date: _________________________________
| |
|
| |
Name: Alan Law, D.D.S., Ph. D. |
EXHIBIT D
HIPAA BUSINESS ASSOCIATE AGREEMENT
BUSINESS ASSOCIATE AGREEMENT
THIS
BUSINESS ASSOCIATE AGREEMENT (“Agreement”) is entered into on this
_____ day of _____, 2023, (“Effective Date”) by and
between Orthodontic Specialists of Minnesota, PLLC (hereinafter, referred to as “Covered Entity”) and Park Dental
Partners, Inc. (hereinafter, referred to as “Business Associate”). This Agreement shall be incorporated into the
Agreement as indicated below.
RECITALS
WHEREAS, pursuant
to an Administrative Resources Agreement (“Agreement”) entered into by and between Covered Entity and Business Associate,
Business Associate creates, receives, maintains or transmits Protected Health Information (“PHI”) on behalf of Covered Entity
when providing certain functions, activities, and services (collectively “Services”) to Covered Entity;
WHEREAS, Covered Entity
and Business Associate are subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing
privacy, security, breach notification and enforcement rules at 45 C.F.R. Parts 160 and 164 (“HIPAA Rules”), the applicable
provisions of the Health Information and Technology for Economic and Clinical Health Act of 2009 (“HITECH”), and any future
implementing regulations and guidance issued by the Secretary; and
WHEREAS, the HIPAA
Rules require Covered Entity and Business Associate to enter into an agreement to provide for the protection of the privacy and
security of PHI before Business Associate is permitted to create, receive, maintain or transmit PHI on behalf of Covered Entity.
NOW, THEREFORE, in
consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged,
the parties agree as follows:
| I. | Definitions. The following terms shall have the meaning
ascribed to them in this Section. Other capitalized terms shall have the meaning ascribed to them in the context in which they first
appear. Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms established in 45 C.F.R.
§§ 160 through 164. |
| 1. | Breach shall mean the unauthorized
acquisition, access, use, or disclosure of PHI which compromises the security or privacy
of such information, as defined in 45 C.F.R. § 164.402. |
| 2. | Breach Notification Rule shall
mean the Standards and Implementation Specifications for Notification of Breaches of Unsecured
PHI under 45 C.F.R. Parts 160 and 164, subparts A and D. |
| 3. | Data Aggregation shall mean,
with respect to PHI created or received by a business associate in its capacity as the business
associate of a covered entity, the combining of such PHI by the business associate with the
PHI received by the business associate in its capacity as a business associate of another
covered entity, to permit data analyses that relate to the health care operations of the
respective covered entities. |
| 4. | Designated Record Set shall
mean a group of records maintained by or for Covered Entity that is: (a) the medical
records and billing records about Individuals maintained by or for a covered health care
provider; or (b) used in whole or in part, by or for Covered Entity to make decisions
about individuals. For these purposes, the term record means any item, collection, or grouping
of information that includes PHI and is maintained, collected, used, or disseminated by or
for Covered Entity. |
| 5. | Electronic Protected Health Information
or EPHI shall mean individually identifiable health information that is transmitted
or maintained in electronic media as defined in 45 C.F.R. § 160.103. |
| 6. | HHS shall mean the United States
Department of Health and Human Services. |
| 7. | Individual shall mean the person
who is the subject of the PHI, and shall have the same meaning as the term “individual”
as defined in 45 C.F.R. § 160.103 and shall include a person who qualifies as a
personal representative in accordance with 45 C.F.R. §
164.502(g). |
| 8. | Parties shall mean Business Associate and Covered Entity. |
| 9. | Privacy Rule shall mean
the Standards and Implementation Specifications for Privacy of Individually Identifiable
Health Information at 45 C.F.R. Parts 160 and 164, subparts A and E. |
| 10. | Protected Health Information or
PHI shall have the same meaning as the term “protected health information”
in 45 C.F.R. § 160.103, limited to the information created or received by Business Associate
from or on behalf of Covered Entity. |
| 11. | Required by Law shall have the
same meaning as the term “required by law” in 45 C.F.R. § 164.512. |
| 12. | Secretary shall mean the Secretary
of the United States Department of Health and Human Services, or his or her designee. |
| 13. | Security Incident shall mean
the attempted or successful unauthorized access, use, disclosure, modification, or destruction
of information or interference with system operations in an information system as defined
in 45 C.F.R. § 164.304. |
| 14. | Security Rule shall mean
the Security Standards and Implementation Specifications for the Protection of Electronic
Protected Health Information at 45 C.F.R. Parts 160 and 164, subparts A and C. |
| 15. | Subcontractor shall have
the same meaning as the term “subcontractor” in 45 C.F.R. § 160.103. |
| 16. | Unsecured Protected Health
Information shall mean PHI that is not rendered unusable, unreadable, or indecipherable
to unauthorized persons through the use of a technology or methodology specified by the Secretary
from time to time. |
| II. | Permitted Uses
and Disclosures of PHI by Business Associate. |
| 1. | Generally. Except as otherwise limited in this Agreement,
Business Associate may use or disclose PHI to perform functions, activities or services for, or on behalf of, Covered Entity as specified
in the Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity. Any such use
or disclosure shall be limited to those reasons and those individuals as necessary to meet the Business Associate’s obligations
under the Agreement. In all circumstances, Business Associate shall limit such uses and disclosures to the minimum amount of PHI that
is necessary to fulfill those obligations in accordance with the HIPAA Rules and any future implementing regulations and guidance
issued by the Secretary. |
| 2. | Management, Administration, and Legal Responsibilities. Business
Associate may use PHI, if necessary, for the proper management and administration of Business Associate or to carry out the legal responsibilities
of Business Associate. Business Associate may disclose PHI, if necessary, for the proper management and administration of Business Associate
or to carry out the legal responsibilities of Business Associate, provided: |
| a. | The disclosure is Required by Law; or |
| b. | Business Associate obtains reasonable assurances
from the person to whom the PHI is disclosed that it will remain confidential and will be
used or further disclosed only as Required by Law or for the purpose for which it was disclosed
to the person, and the person promptly notifies Business Associate of any instances of which
it is aware in which the confidentiality of the PHI has been breached. |
| 3. | Data Aggregation. Except as otherwise limited by this
Agreement, if Business Associate provides Data Aggregation services, Business Associate may use PHI to provide Data Aggregation services
to Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B). |
| 4. | De-identified Data. Business Associate may use PHI to
create de-identified data in accordance with the HIPAA Rules. Data that has been de-identified will no longer be subject to the terms
of this Agreement. |
| III. | Obligations
of Business Associate. |
| 1. | Appropriate Safeguards. Business
Associate will use appropriate safeguards and comply with the Security Rule with respect
to EPHI that it creates, receives, maintains, or transmits on behalf of Covered Entity. |
| 2. | Mitigation of Harm. Business
Associate agrees to mitigate, to the extent practicable, any harmful effect that is known
to Business Associate of a use or disclosure of PHI by Business Associate in violation of
the requirements of this Agreement. |
| 3. | Reporting. Business Associate
will report to Covered Entity any use or disclosure of PHI not provided for by this Agreement.
Business Associate will also report to Covered Entity any Security Incident of which it becomes
aware with respect to EPHI. Additionally, Business Associate will report to Covered Entity
within five (5) business days of discovering a Breach of Unsecured PHI. The Breach notice
shall be in writing and meet the requirements of the Breach Notification Rule. Business Associate
agrees to investigate any suspected Breach, to establish and implement procedures to mitigate
losses and to protect against future Breaches, and to provide a description of all such investigations
and procedures to Covered Entity upon the request of Covered Entity. Unless otherwise mutually
agreed by the parties, the Covered Entity shall be responsible for providing notification
of any Breach to individuals, the Secretary, and/or the media as may be required (in Covered
Entity’s sole determination) by 45 C.F.R. §164 Subpart D. |
| 4. | Subcontractors. Business Associate
agrees to ensure that any Subcontractor that creates, receives, maintains, or transmits PHI,
including EPHI, on behalf of the Business Associate, agrees to the same restrictions and
conditions that apply through this Agreement to Business Associate with respect to such information,
including but not limited to, compliance with the applicable requirements of 45 C.F.R. Parts
160 and 164. Such agreement between Business Associate and Subcontractor must be made in
writing and must comply with the terms of this Agreement and the requirements outlined in
45 C.F.R. §§ 164.504(e) and 164.314. If the Business Associate is aware of
a pattern of activity or practice of Subcontractor that constitutes a material breach or
violation of Subcontractor’s obligations under such agreement, and such breach is not
cured within a reasonable time, Business Associate shall terminate such agreement with Subcontractor,
if feasible. |
| 5. | Access to PHI. Business Associate
shall provide access, at the request of Covered Entity, and in the time and manner reasonably
designated by Covered Entity, to PHI in a Designated Record Set to Covered Entity or, as
directed by Covered Entity, to an Individual, in order to meet the requirements under 45
C.F.R. § 164.524 with regard to providing an Individual with a right to access the Individual’s
PHI. If Covered Entity requests an electronic copy of PHI that is maintained electronically
in a Designated Record Set in the Business Associate’s custody or control, Business
Associate will provide an electronic copy in the form and format specified by the Covered
Entity if it is readily producible in such format. If it is not readily producible in such
format, Business Associate will work with Covered Entity to determine an alternative form
and format that enables Covered Entity to meet its electronic access obligations under 45
C.F.R. § 164.524. |
| 6. | Amendments to PHI. Business
Associate agrees to make any amendment(s) to PHI in a Designated Record Set that the
Covered Entity directs or agrees to pursuant to 45 C.F.R. § 164.526 at the request of
Covered Entity or an Individual, and in the time and manner reasonably designated by Covered
Entity. |
| 7. | Documentation of Disclosures. Business
Associate shall document such disclosures of PHI and information related to such disclosures
as would be required for Covered Entity to respond to a request by an Individual for an accounting
of disclosures of PHI in accordance with 45 C.F.R. § 164.528, HITECH and any future
implementing regulations and guidance issued by the Secretary. For each such disclosure,
Business Associate shall document the following information: (i) the date of the disclosure;
(ii) the name and, if known, the address of the recipient of the PHI; (iii) a brief
description of the PHI disclosed; and (iv) a statement that reasonably informs Covered
Entity of the purpose of the disclosure. Business Associate agrees to provide to Covered
Entity, in the time and manner reasonably designated by Covered Entity, information collected
in accordance with this provision. |
| 8. | Request for an Accounting Directly
to Business Associate. Business Associate shall inform Covered Entity of a request for
an accounting made directly to Business Associate within five (5) days of having received
the request. Covered Entity shall either inform Business Associate to provide the requested
information directly to the individual or request Business Associate to immediately forward
the information to Covered Entity for compilation and distribution to the individual. In
the case of a direct request for an accounting from an individual related to treatment, payment,
or operations disclosures through electronic health records, Business Associate shall provide
the accounting to the individual in accordance with HITECH and any future implementing regulations
and guidance issued by the Secretary. Business Associate shall confirm with Covered Entity
that Covered Entity provided Business Associate’s name to the individual in response
to a request for an accounting before providing the requested accounting to the individual. |
| 9. | Access to Books and Records. Business
Associate shall make its internal practices, books, and records relating to the use and disclosure
of PHI received from, or created or received by Business Associate on behalf of, Covered
Entity available to the Covered Entity or to the Secretary in a time and manner designated
by Covered Entity or the Secretary for purposes of determining Covered Entity’s or
Business Associate’s compliance with the HIPAA Rules. |
| 10. | Carrying Out Obligations of Covered
Entity. To the extent the Business Associate is to carry out a Covered Entity’s
obligation(s) under the HIPAA Rules, Business Associate shall comply with the requirements
of the HIPAA Rules that apply to the Covered Entity in the performance of such obligation. |
| IV. | Obligations
of Covered Entity. |
| 1. | Covered Entity shall notify Business Associate
of any limitation(s) in the notice of privacy practices to the extent that such limitation
may affect Business Associate’s use or disclosure of PHI. |
| 2. | Covered Entity shall provide Business
Associate with any changes in, or revocation of, permission by an Individual to use or disclose
PHI, if such changes affect Business Associate’s permitted or required uses and disclosures. |
| 3. | Covered Entity shall notify Business Associate
of any restriction to the use or disclosure of PHI that Covered Entity has agreed to or must
comply with in accordance with 45 C.F.R. § 164.522. |
| 4. | Covered Entity shall not request Business
Associate to use or disclose PHI in any manner that would not be permissible under the Privacy
Rule if done by Covered Entity, except as set forth in Section II (Permitted Uses
and Disclosures of PHI by Business Associate) of this Agreement. |
| 1. | Term. The term of this Agreement
shall commence on the Effective Date and shall remain in effect for the duration of the relationship,
functions or services giving rise to the necessity of this Agreement, and until all of the
PHI provided by Covered Entity to Business Associate, or created, received, maintained or
transmitted by Business Associate on behalf of Covered Entity, is destroyed or returned to
Covered Entity, or, if it is infeasible to return or destroy PHI, protections are extended
to such information, in accordance with the termination provisions in this Section. |
| 2. | Termination Resulting from the
End of Relationship, Functions or Services. This Agreement shall terminate in the event
the Agreement terminates or the underlying relationship, functions, or services that give
rise to the necessity of this Agreement terminate for any reason. |
| 3. | Termination for Cause. Upon
either Party’s knowledge of a material breach of this Agreement by the other Party,
the non-breaching Party must either: |
| a. | Provide an opportunity for the breaching
Party to cure the breach or end the violation, and if the breaching Party does not cure the
breach or end the violation within the time specified by the non-breaching Party, the non-breaching
Party shall terminate this Agreement and any underlying agreement(s); or |
| b. | If cure is not possible, immediately terminate
this Agreement and any underlying agreement(s). |
| 4. | Return or Destruction of PHI Upon Termination or Expiration.
Upon termination of this Agreement, Business Associate shall return or destroy all PHI received from Covered Entity, or created or
received by Business Associate on behalf of Covered Entity. This provision shall apply to PHI that is in the possession of Subcontractors
of Business Associate. Business Associate shall not retain copies of such information upon termination of Agreement. In the event that
Business Associate determines that returning or destroying PHI is infeasible, Business Associate shall provide to Covered Entity notification
of the conditions that make return or destruction infeasible. Upon mutual agreement of the Parties that return or destruction of PHI
is infeasible, Business Associate shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of
such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI. |
Whenever, under the terms
of this Agreement, written notice is required or permitted to be given by one party to the other party, such notice shall be deemed to
have been sufficiently given if when delivered (personally, by carrier service such as Federal Express, or by other messenger) or upon
actual receipt of registered or certified mail, postage prepaid, return receipt requested, addressed to the last known address of the
intended recipient.
Notice under this Agreement shall be provided to
the following for Covered Entity:
HIPAA Privacy Officer
Address:
City, State Zip:
Telephone:
Facsimile:
Email:
Notice under this
Agreement shall be provided to the following for Business Associate:
Business Associate Name:
Address:
City, State Zip:
Telephone:
Email:
| VII. | Additional Provisions. |
| 1. | Remuneration in Exchange for
PHI. Business Associate shall not directly or indirectly receive remuneration in exchange
for any PHI of an individual unless Covered Entity has received a valid authorization from
that individual or the exchange is otherwise permitted by the HIPAA Rules. As permitted by
law, Covered Entity may provide remuneration to Business Associate for activities involving
the exchange of PHI that Business Associate undertakes on behalf of the Covered Entity if
the remuneration is for the performance of such activities. |
| 2. | Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of Ohio to the
extent that the provisions of the HIPAA Rules do not preempt the laws of the State of
Ohio. |
| 3. | Entire Agreement. This Agreement
constitutes the entire Agreement of the Parties and supersedes all prior oral and written
agreements or understandings between them with respect to the matters provided for herein.
All notices and other communications under this Agreement shall be in writing. |
| 4. | Regulatory References. A
reference in this Agreement to a section in the HIPAA Rules means the section as in
effect or as amended, and for which compliance is required. |
| 5. | Amendment. The Parties agree
to take such action as is necessary to amend this Agreement from time to time as is necessary
for Covered Entity to comply with the requirements of the HIPAA Rules. |
| 6. | Interpretation. Any ambiguity
in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to
comply with the HIPAA Rules. |
| 7. | No Third Party Beneficiaries.
There are no third party beneficiaries to this Agreement. |
IN WITNESS WHEREOF, Business
Associate and Covered Entity have agreed to the terms of the above written agreement as of the Effective Date set forth above.
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Exhibit 10.14
PARK
DENTAL PARTNERS, INC.
2023
RESTRICTED STOCK Plan
ARTICLE 1.
PURPOSE OF THE PLAN
The name of this plan is the Park Dental Partners, Inc.
2023 Restricted Stock Plan (the “Plan”). The purposes of the Plan are to (a) enable Park Dental Partners, Inc.,
a Minnesota corporation (the “Company”), and any Affiliate to attract and retain the types of Employees, Consultants
and Directors who will contribute to the Company’s long range success; (b) provide incentives that align the interests of
Employees, Consultants and Directors with those of the shareholders of the Company; and (c) promote the success of the Company’s
business.
ARTICLE 2.
DEFINITIONS
Wherever the following terms are used in the
Plan they shall have the meanings specified below, unless the context clearly indicates otherwise. The singular pronoun shall include
the plural where the context so indicates.
2.1 “Affiliate”
shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act. The Board shall have the authority
to determine the time or times at which “Affiliate” status is determined within the foregoing definition. For purposes of
clarity, the term “Affiliate” shall include, but not be limited to entities within the Company’s consolidated group
for financial reporting purposes.
2.2 “Award”
means an award of Restricted Stock granted to a Participant pursuant to the Plan.
2.3 “Award
Agreement” means any written agreement, contract, or other instrument or document evidencing the terms and conditions of an
Award, including through electronic medium.
2.4 “Board”
means the Board of Directors of the Company.
2.5 “Cause”
shall have the meaning ascribed to such term in the Award Agreement, or if the term is not defined in the Award Agreement, shall mean,
with respect to an Employee, (a) a final, non-appealable conviction of the Employee for commission of a felony involving moral turpitude,
(b) the Employee’s willful gross misconduct that causes material economic harm to the Company or that brings substantial discredit
to the Company’s reputation, or (c) the Employee’s material failure or refusal to perform his or her duties if such
Employee has failed to cure such failure or refusal to perform within thirty (30) days after the Company notifies the Employee in writing
of such failure or refusal to perform.
2.6 “Change
in Control” shall mean the first to occur of:
(a) completion
of a consolidation or merger in which the Company is not the continuing or surviving entity or pursuant to which each class of the Company’s
common stock would be converted into cash, securities or other property, other than (i) a consolidation or merger of the Company
in which the holders of each class of common stock immediately prior to the consolidation or merger have the same proportionate ownership
and voting power with respect to the common stock of the surviving corporation immediately after the consolidation or merger, or (ii) a
consolidation or merger which would result in the voting securities of the Company outstanding immediately prior thereto continuing to
represent (by being converted into voting securities of the continuing or surviving entity) 50% or more of the combined voting power
of the voting securities of the surviving or continuing entity immediately after such consolidation or merger and which would result
in the members of the Board immediately prior to such consolidation or merger (including, for this purpose, any individuals whose election
or nomination for election was approved by a vote of at least two-thirds of such members), constituting a majority of the board of directors
(or equivalent governing body) of the surviving or continuing entity immediately after such consolidation or merger;
(b) shareholder
approval of a plan of complete liquidation or dissolution of the Company or consummation of a sale or disposition by the Company of all
or substantially all of the Company’s assets, in one transaction or a series of related transactions, other than a sale or disposition
by the Company of all or substantially all of the Company’s assets to an entity, more than 50% of the combined voting power of
the voting securities of which is owned by shareholders of the Company in substantially the same proportion as their ownership of the
Company immediately prior to such sale;
(c) any
person (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act), other than (i) persons or their family
members or affiliates which have such voting power on the date of adoption of the Plan, or (ii) any trustee or other fiduciary holding
securities under any employee benefit plan of the Company, shall become the beneficial owner (within the meaning of Rule 13d-3 under
the Exchange Act) of 66 2/3% or more of the combined voting power of the voting securities of the Company other than pursuant to a plan
or arrangement entered into by such person and the Company; or
(d) during
any period of two consecutive years, individuals who at the beginning of such period constitute the entire Board (the “Incumbent
Board”) shall cease for any reason to constitute a majority of the Board; provided, that, other than in connection
with an actual or threatened proxy contest, any individual who becomes a director subsequent to the beginning of the period, whose election,
or nomination for election by the Company’s shareholders, was approved by a vote of at least two-thirds of the directors then still
in office who were directors at the beginning of the period shall be deemed a member of the Incumbent Board.
Further, if a Change in Control constitutes
a payment event with respect to any Award which provides for the deferral of compensation and is subject to Section 409A of the
Code, in order to make payment upon such Change in Control, the transaction or event described above with respect to such Award must
also constitute a “change in the ownership,” a “change in the effective control” or a “change in the ownership
of a substantial portion of the assets” of the Company within the meaning of Treasury Regulation Section 1.409A-3(i)(5) (or
any successor provision), and if it does not, payment of such Award will be made pursuant to the Award’s original payment schedule
or, if earlier, upon the death of the Participant, unless otherwise provided in the Award Agreement.
2.7 “Class A-1
Share” means a share of Class A-1 Common Stock, $0.0001 par value per share, of the Company, or such other securities
of the Company as may be designated by the Board from time to time in substitution thereof.
2.8 “Class A-2
Share” means a share of Class A-2 Common Stock, $0.0001 par value per share, of the Company, or such other securities
of the Company as may be designated by the Board from time to time in substitution thereof.
2.9 “Class A-3
Share” means a share of Class A-3 Common Stock, $0.0001 par value per share, of the Company, or such other securities
of the Company as may be designated by the Board from time to time in substitution thereof
2.10 “Code”
means the U.S. Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall be
deemed to include a reference to any regulations promulgated thereunder.
2.11 “Common
Stock” means (i) the Class A-1 Common Stock, $0.0001 par value per share, of the Company, (ii) the Class A-2
Common Stock, $0.0001 par value per share, of the Company, and (iii) the Class A-3 Common Stock, $0.0001 par value per share,
of the Company, combined, or such other securities of the Company as may be designated by the Board from time to time in substitution
thereof.
2.12 “Consultant”
means any consultant or adviser if: (a) the consultant or advisor renders bona fide services to the Company or any Subsidiary or
Affiliate; (b) the services rendered by the consultant or advisor are not in connection with the offer or sale of securities in
a capital-raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities; and
(c) the consultant or advisor is a natural person.
2.13 “Continuous
Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant or
Director, is not interrupted or terminated. The Participant’s Continuous Service shall not be deemed to have terminated merely
because of a change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant
or Director or a change in the entity for which the Participant renders such service, provided that there is no interruption or termination
of the Participant’s Continuous Service; provided further that if any Award is subject to Section 409A of the Code, this sentence
shall only be given effect to the extent consistent with Section 409A of the Code. For example, a change in status from an Employee
of the Company to a Director of an Affiliate will not constitute an interruption of Continuous Service. The Board or its delegate, in
its sole discretion, may determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved
by that party, including sick leave, military leave or any other personal or family leave of absence. The Board or its delegate, in its
sole discretion, may determine whether a Company transaction, such as a sale or spin-off of a division or subsidiary that employs a Participant,
shall be deemed to result in a termination of Continuous Service for purposes of affected Awards, and such decision shall be final, conclusive
and binding.
2.14 “Director”
means a member of the Board.
2.15 “Disability”
means, unless otherwise provided in the Award Agreement, that the Participant would qualify to receive benefit payments under the long-term
disability policy, as it may be amended from time to time, of the Company or any Subsidiary or Affiliate to which the Participant provides
services regardless of whether the Participant is covered by such policy. If the Company or any Subsidiary or Affiliate to which the
Participant provides service does not have a long-term disability plan in place, “Disability” means that a Participant is
unable to carry out the responsibilities and functions of the position held by the Participant by reason of any medically determined
physical or mental impairment for a period of not less than ninety (90) consecutive days. A Participant shall not be considered to have
incurred a Disability unless he or she furnishes proof of such impairment sufficient to satisfy the Board (or its delegate) in its discretion.
The determination of whether an individual has a Disability shall be determined under procedures established by the Board. Notwithstanding
the foregoing, for purposes of an Award that is subject to Section 409A of the Code, “Disability” shall mean a “Disability”
within the meaning of Section 409A of the Code to the extent necessary to comply with Section 409A of the Code.
2.16 “Dividend
Equivalent” means a right granted to a Participant related to the Award of Restricted Stock which is a right to accrue the
equivalent value of dividends paid on the Shares prior to vesting of the Award (or prior to payment of an Award that is subject to deferred
settlement). Such Dividend Equivalents shall be converted to cash or additional Shares, or a combination of cash and Shares, by such
formula and at such time and subject to such limitations as may be determined by the Board, provided, however, that in
no event shall Dividend Equivalents be paid on any Award that is not vested or that does not become vested in accordance with its terms.
2.17 “Effective
Date” means the date on which the Plan is approved by the Company’s shareholders if such shareholder approval occurs
before the first anniversary of the date the Plan is adopted by the Board.
2.18 “Eligible
Individual” means any person who is an Employee, a Consultant or a Director, as determined by the Board.
2.19 “Employee”
means a full time or part time employee of the Company or any Subsidiary or Affiliate, including an officer or Director, who is treated
as an employee in the personnel records of the Company or Subsidiary or Affiliate for the relevant period, but shall exclude individuals
who are classified by the Company or Subsidiary or Affiliate as (a) independent contractors or (b) intermittent or temporary,
even if any such classification is changed retroactively as a result of an audit, litigation or otherwise. A Participant shall not cease
to be an Employee in the case of (i) any vacation or sick time or otherwise approved paid time off in accordance with the Company
or Subsidiary or Affiliate’s policy or (ii) transfers between locations of the Company or between the Company, a Subsidiary
and/or Affiliate; provided that, with respect to an Award that constitutes a deferral of compensation and is subject to Section 409A
of the Code, in order to settle such an Award as a result of a separation from service (including a termination of employment), whether
or not a Participant has had a “separation from service” will be determined within the meaning of such term under Section 409A
of the Code. Neither services as a Director nor payment of a director’s fee by the Company or a Subsidiary or Affiliate shall be
sufficient to constitute “employment” by the Company or any Subsidiary or Affiliate.
2.20 “Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
2.21 “Fair
Market Value” means, as of any given date, the value of the Common Stock as determined below. If the Common Stock is listed
on any established stock exchange or quotation system, including without limitation the New York Stock Exchange or the NASDAQ Stock Market,
the Fair Market Value shall be the closing price of a share of Common Stock (or if not sales were reported the closing price on the date
immediately preceding such date) as quoted on such exchange or system on such date, as reported in the Wall Street Journal (or such other
source as the Company may deem reliable for such purposes). In the absence of an established market for the Common Stock, the Fair Market
Value shall be determined in good faith by the Board and in compliance with Section 409A of the Code to the extent necessary to
exempt an Award from or comply with Section 409A of the Code. Such determination shall be conclusive and binding on all persons.
2.22 “Participant”
means any Eligible Individual who, as a Director, Consultant or Employee, has been granted an Award pursuant to the Plan.
2.23 “Plan”
means this Park Dental Partners, Inc. 2023 Restricted Stock Plan, as it may be amended and/or amended and restated from time to
time.
2.24 “Restricted
Stock” means Shares awarded to a Participant pursuant to Article 5 that are subject to certain restrictions as
set forth in the Award Agreement.
2.25 “Retirement”
means, unless otherwise expressly provided in an Award Agreement, a Participant’s termination of employment or service, which is
for any reason other than for Cause, after such Participant’s 65th birthday.
2.26 “Securities
Act” shall mean the U.S. Securities Act of 1933, as amended.
2.27 “Share”
means a share of Common Stock.
2.28 “Subsidiary”
means any “subsidiary corporation” as defined in Section 424(f) of the Code and any applicable regulations promulgated
thereunder or any other entity of which a majority of the outstanding voting stock or voting power is beneficially owned directly or
indirectly by the Company.
ARTICLE 3.
SHARES SUBJECT TO THE PLAN
3.1 Share
Reserve / Number of Shares. Subject to Article 7, the aggregate number of Class A-1 Shares that may initially be
issued pursuant to Awards will not exceed 5,000,000 Class A-1 Shares, (ii) the aggregate number of Class A-2 Shares that
may initially be issued pursuant to Awards will not exceed 1,125,000 Class A-2 Shares, and (iii) the aggregate number of Class A-3
Shares that may initially be issued pursuant to Awards will not exceed 500,000 Class A-3 Shares (the “Share Reserve”).
(a) Share
Reserve Counting. For clarity, the Share Reserve in this Section 3.1 is a limitation on the number of Shares that may
be issued pursuant to the Plan. During the terms of the Awards, the Company shall keep available at all times the number of shares of
Common Stock required to satisfy such Awards.
(b) Shares
Reissuable Under Plan. To the extent that an Award terminates, expires, lapses for any reason, or is settled in cash, any Shares
subject to the Award shall again be available for the grant of an Award pursuant to the Plan.
3.2 Shares
Distributed. Any Shares distributed pursuant to an Award may consist, in whole or in part, of authorized and unissued Shares, treasury
Shares or Shares purchased on the open market.
ARTICLE 4.
ELIGIBILITY, PARTICIPATION, MINIMUM VESTING REQUIREMENTS, DIVIDENDS
4.1 Eligibility.
Each Eligible Individual shall be eligible to be granted one or more Awards pursuant to the Plan. An Eligible Individual who is subject
to taxation in the U.S. and who is a service provider to the Company or an Affiliate may be granted Awards under this Plan only if, with
respect to the Affiliate, the Company qualifies as an “eligible issuer of service recipient stock” within the meaning of
§1.409A-1(b)(5)(iii)(E) of the Treasury Regulations promulgated under Section 409A of the Code (or any successor provision).
4.2 Participation.
Subject to the provisions of the Plan, the Board may, from time to time, select from among all Eligible Individuals, those to whom Awards
shall be granted and shall determine the nature and amount of each Award. No Eligible Individual shall have any right to be granted an
Award pursuant to this Plan and the grant of an Award to an Eligible Individual shall not imply any entitlement to receive future Awards.
4.3 Dividends
and Dividend Equivalents. The Board may provide that any Award that relates to shares of Common Stock shall earn dividends or Dividend
Equivalents; provided, that, notwithstanding anything in the Plan to the contrary, the Board may not provide for the current
payment of dividends or Dividend Equivalents with respect to any shares of Common Stock subject to an outstanding Award (or portion thereof)
that has not vested. For any such Award, the Board may provide only for the accrual of dividends or Dividend Equivalents that will not
be payable to the Participant unless and until, and only to the extent that, the Award vests.
ARTICLE 5.
RESTRICTED STOCK AWARDS
5.1 Grant
of Restricted Stock. The Board is authorized to make Awards of Restricted Stock to any Eligible Individual selected by the Board
in such amounts and subject to such terms and conditions as determined by the Board. All Awards of Restricted Stock shall be evidenced
by an Award Agreement.
5.2 Purchase
Price. At the time of the grant of an Award of Restricted Stock, the Board shall determine the price, if any, to be paid by the Participant
for each Share subject to the Award of Restricted Stock. To the extent required by applicable law, the price to be paid by the Participant
for each Share subject to the Award of Restricted Stock shall not be less than the par value of a Share (or such higher amount required
by applicable law). The purchase price of Shares acquired pursuant to the Award of Restricted Stock shall be paid either: (i) in
cash at the time of purchase; or (ii) in any other form of legal consideration that may be acceptable to the Board in its sole discretion
and in compliance with applicable law.
5.3 Issuance
and Restrictions. Restricted Stock shall be subject to such restrictions on transferability and other restrictions as the Board may
impose (including, without limitation, limitations on the right to vote Restricted Stock). These restrictions may lapse separately or
in combination at such times, pursuant to such circumstances, in such installments, or otherwise, as the Board determines at the time
of the grant of the Award or thereafter. Further, notwithstanding any provision herein to the contrary, no dividends will be paid on
Restricted Stock that has not vested; however, the Board, in its discretion, may authorize the accrual of Dividend Equivalents on Restricted
Stock.
5.4 Forfeiture.
Subject to Section 4.3, except as otherwise determined by the Board at the time of the grant of the Award or thereafter,
upon termination of employment or service during the applicable restriction period, Restricted Stock that is at that time subject to
restrictions shall be forfeited; provided, however, that the Board may (a) provide in any Restricted Stock Award Agreement that
restrictions or forfeiture conditions relating to Restricted Stock will be waived in whole or in part in the event of terminations resulting
from specified causes, and (b) in other cases waive in whole or in part restrictions or forfeiture conditions relating to Restricted
Stock.
5.5 Certificates
for Restricted Stock. Restricted Stock granted pursuant to the Plan may be evidenced in such manner as the Board shall determine.
If certificates representing shares of Restricted Stock are registered in the name of the Participant, certificates must bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock, and the Company may, at its discretion,
retain physical possession of the certificate until such time as all applicable restrictions lapse.
ARTICLE 6.
PROVISIONS APPLICABLE TO AWARDS
6.1 Award
Agreement. Awards under the Plan shall be evidenced by Award Agreements that set forth the terms, conditions and limitations for
each Award which may include the term of an Award, additional provisions applicable in the event the Participant’s employment or
service terminates, and the Company’s authority to unilaterally or bilaterally amend, modify, suspend, cancel or rescind an Award.
6.2 Limits
on Transfer. No right or interest of a Participant in any Award may be pledged, encumbered, or hypothecated to or in favor of any
party other than the Company or a Subsidiary or Affiliate, or shall be subject to any lien, obligation, or liability of such Participant
to any other party other than the Company or a Subsidiary or Affiliate. Except as otherwise provided by the Board, no Award shall be
assigned, transferred, or otherwise disposed of by a Participant other than by will or the laws of descent and distribution or pursuant
to beneficiary designation procedures approved from time to time by the Board. The Board by express provision in the Award or an amendment
thereto may permit an Award to be transferred to, exercised by and paid to certain persons or entities related to the Participant, including,
but not limited to, members of the Participant’s family, charitable institutions, or trusts or other entities whose beneficiaries
or beneficial owners are members of the Participant’s family and/or charitable institutions, or to such other persons or entities
as may be expressly approved by the Board, pursuant to such conditions and procedures as the Board may establish.
Any permitted transfer shall be subject to the
condition that the Board receive evidence satisfactory to it that the transfer is being made for estate and/or tax planning purposes
(or to a “blind trust” in connection with the Participant’s termination of employment or service with the Company or
a Subsidiary or Affiliate to assume a position with a governmental, charitable, educational or similar non-profit institution) and on
a basis consistent with the Company’s lawful issue of securities. Notwithstanding anything contrary in this Section 6.2
or Section 6.3 below, no Award may be transferred for value or consideration.
6.3 Beneficiaries.
Notwithstanding Section 6.2 hereof, a Participant may, if permitted by the Board, designate a beneficiary to exercise the
rights of the Participant and to receive any distribution with respect to any Award upon the Participant’s death. A beneficiary,
legal guardian, legal representative, or other person claiming any rights pursuant to the Plan is subject to all terms and conditions
of the Plan and any Award Agreement applicable to the Participant, except to the extent the Plan and Award Agreement otherwise provide,
and to any additional restrictions deemed necessary or appropriate by the Board. If the Participant is married and resides in a community
property state, a designation of a person other than the Participant’s spouse as his or her beneficiary with respect to more than
50% of the Participant’s interest in the Award shall not be effective without the prior written consent of the Participant’s
spouse. If no beneficiary has been designated or survives the Participant, payment shall be made to either the person’s estate
or legal representative or the person entitled thereto pursuant to the Participant’s will or the laws of descent and distribution
(or equivalent laws outside the U.S.). Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant
at any time provided the change or revocation is filed with the Board.
6.4 Stock
Certificates; Book Entry Procedures.
(a) Notwithstanding
anything herein to the contrary, the Company shall not be required to issue or deliver any certificates evidencing Shares pursuant to
the exercise of any Award, unless and until the Board has determined, with advice of counsel, that the issuance and delivery of such
certificates is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements
of any exchange on which the Shares are listed or traded. All certificates evidencing Shares delivered pursuant to the Plan are subject
to any stop-transfer orders and other restrictions as the Board deems necessary or advisable to comply with federal, state or local securities
or other laws, including laws of jurisdictions outside of the United States, and the rules and regulations of any national securities
exchange or automated quotation system on which the Shares are listed, quoted, or traded. The Board may place legends on any certificate
evidencing Shares to reference restrictions applicable to the Shares. In addition to the terms and conditions provided herein, the Board
may require that a Participant make such reasonable covenants, agreements, and representations as the Board, in its discretion, deems
advisable in order to comply with any such laws, regulations, or requirements. The Board shall have the right to require any Participant
to comply with any timing or other restrictions with respect to the settlement or exercise of any Award, including a window-period limitation,
as may be imposed in the discretion of the Board.
(b) Notwithstanding
any other provision of the Plan, unless otherwise determined by the Board or required by any applicable law, rule or regulation,
the Company shall not deliver to any Participant certificates evidencing Shares issued in connection with any Award and instead such
Shares shall be recorded in the books of the Company (or, as applicable, its transfer agent or stock plan administrator).
6.5 Accelerated
Vesting and Deferral Limitations. The Board shall not have the discretionary authority to accelerate or delay issuance of Shares
or payment of cash under an Award that constitutes a deferral of compensation within the meaning of Section 409A of the Code, except
to the extent that such acceleration or delay may, in the discretion of the Board, be effected in a manner that will not cause any person
to incur taxes, interest or penalties under Section 409A of the Code.
6.6 Paperless
Administration. In the event that the Company establishes, for itself or using the services of a third party, an automated system
for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then
the paperless documentation, granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.
ARTICLE 7.
CHANGES IN CAPITAL STRUCTURE
7.1 Adjustments.
(a) In
the event of any stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than
normal cash dividends) of Company assets to shareholders, or any other change affecting the Shares or the price of the Shares, the Board
shall make such adjustments, if any, to prevent dilution or enlargement of rights granted to Participant’s under this Plan as the
Board in its discretion may deem appropriate to reflect such change with respect to (a) the aggregate number and kind of shares
that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Section 3.1 hereof);
(b) the number and kind of Shares subject to outstanding Awards and the terms and conditions of any outstanding Awards (including,
without limitation, any applicable performance targets or criteria with respect thereto); and (c) the grant or exercise price per
Share for any outstanding Awards under the Plan.
(b) In
the event of any transaction or event described in Section 7.1(a) hereof or any unusual or nonrecurring transactions
or events affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate, or of changes
in applicable laws, regulations or accounting principles, the Board, in its sole and absolute discretion, and on such terms and conditions
as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event and
either automatically or upon the Participant’s request, is hereby authorized to take any one or more of the following actions whenever
the Board determines that such action is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan or with respect to any Award under the Plan, to facilitate such transactions or events or
to give effect to such changes in laws, regulations or principles:
(i) To
provide for either (A) termination of any such Award in exchange for an amount of cash, if any, equal to the amount that would have
been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as
of the date of the occurrence of the transaction or event described in this Section 7.1 the Board determines in good faith
that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award
may be terminated by the Company without payment) or (B) the replacement of such Award with other rights or property selected by
the Board in its sole discretion;
(ii) To
provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted
for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices;
(iii) To
make adjustments in the number and type of Shares (or other securities or property) subject to outstanding Awards, and in the number
and kind of outstanding Restricted Stock and/or in the terms and conditions of (including the grant or exercise price), and the criteria
included in, outstanding options, rights and awards;
(iv) To
provide that such Award shall be exercisable or payable or fully vested with respect to all Shares covered thereby, notwithstanding anything
to the contrary in the Plan or the applicable Award Agreement; and
(v) To
provide that the Award cannot vest, be exercised or become payable after such event.
7.2 Change
in Control. Notwithstanding Section 7.1 hereof, if a Change in Control occurs, the Board or the Board may, in its sole
discretion, provide for any of the following to be effective upon the consummation of the event (or effective immediately prior to the
consummation of the event, provided that the consummation of the event subsequently occurs), and no action taken under this Section 7.2
shall be deemed to impair or otherwise adversely alter or impair the rights of any holder of an Award or beneficiary thereof:
(i) either
(A) termination of any such Award, whether or not vested, in exchange for an amount of cash and/or other property, if any, equal
to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s vested rights (and,
for the avoidance of doubt, if, as of the date of the occurrence of the transaction or event described in this Section 7.2,
the Board or the Board determines in good faith that no amount would have been attained upon the exercise of such Award or realization
of the Participant’s vested rights, then such Award may be terminated by the Company without any payment) or (B) the replacement
of such Award with other rights or property selected by the Board or the Board, in its sole discretion;
(ii) that
such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar
options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices;
(iii) that
subject to Article 6 and any other applicable provision herein, the Award shall be exercisable or payable or fully vested
with respect to all Shares covered thereby, notwithstanding anything to the contrary in the applicable Award Agreement; or
(iv) that
the Award cannot vest, be exercised or become payable after a date certain in the future, which may be the effective date of such event.
7.3 Correction
of Defects, Omissions and Inconsistencies. The Board may correct any defect, supply any omission or reconcile any inconsistency in
the Plan or in any Award or Award Agreement in the manner and to the extent it shall deem desirable to implement or maintain the effectiveness
of the Plan.
7.4 No
Other Rights. Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation
of Shares of any class, the payment of any dividend, any increase or decrease in the number of Shares of any class or any dissolution,
liquidation, merger, or consolidation of the Company or any other corporation. Except as expressly provided in the Plan or pursuant to
action of the Board under the Plan, no issuance by the Company of Shares of any class, or securities convertible into Shares of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares subject to an Award or the grant
or the exercise price of any Award.
ARTICLE 8.
ADMINISTRATION
8.1 Administration
by the Board. Except as specified herein, the Plan shall be administered by the Board. Notwithstanding the foregoing: the Board may
delegate its authority hereunder to the extent permitted by Section 8.5 hereof.
8.2 Action
by the Board. A majority of the Board shall constitute a quorum and the acts of a majority of the members present at any meeting
at which a quorum is present, and acts approved in writing by a majority of the Board in lieu of a meeting, shall be deemed the acts
of the Board. Each member of the Board is entitled to, in good faith, rely or act upon any report or other information furnished to that
member by any officer or other employee of the Company or any Subsidiary or Affiliate, the Company’s independent registered public
accounting firm, or any executive compensation consultant or other professional retained by the Company to assist in the administration
of the Plan.
8.3 Authority
of Board. Subject to any specific designation in the Plan, the Board has the exclusive power, authority and discretion to:
(a) Designate
Participants to receive Awards;
(b) Determine
the type or types of Awards to be granted to each Participant;
(c) Determine
the number of Awards to be granted and the number of Shares to which an Award will relate;
(d) Determine
the terms and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price, grant price, or
purchase price, any restrictions or limitations on the Award, any schedule for lapse of forfeiture restrictions or restrictions on the
exercisability of an Award, and accelerations or waivers thereof, any provisions related to non-competition and recapture of gain on
an Award, based in each case on such considerations as the Board in its sole discretion determines;
(e) Determine
whether, to what extent, and pursuant to what circumstances an Award may be settled in, or the exercise price of an Award may be paid
in, cash, Shares, other Awards, or other property, or an Award may be canceled, forfeited, or surrendered;
(f) Prescribe
the form of each Award Agreement, which need not be identical for each Participant;
(g) Decide
all other matters that must be determined in connection with an Award;
(h) Establish,
adopt, or revise any rules and regulations as it may deem necessary or advisable to administer the Plan;
(i) To
suspend or terminate the Plan at any time provided that such suspension or termination does not materially impair rights and obligations
under any outstanding Award without written consent of the affected Participant;
(j) Interpret
the terms of, and any matter arising pursuant to, the Plan or any Award Agreement; and
(k) Make
all other decisions and determinations that may be required pursuant to the Plan or as the Board deems necessary or advisable to administer
the Plan.
8.4 Decisions
Binding. The Board’s interpretation of the Plan, any Awards granted pursuant to the Plan, any Award Agreement and all decisions
and determinations by the Board with respect to the Plan are final, binding, and conclusive on all parties.
8.5 Delegation
of Authority. To the extent permitted by applicable law, including, without limitation, the Minnesota Business Corporation Act, the
Board may from time to time (i) delegate to one or more officers of the Company the authority, subject to such terms as the Board
shall determine, to perform such functions, including the authority to grant or amend Awards to Participants, as the Board may determine,
and (ii) delegate to any person (who may, but need not, be members of the Board) such Plan-related administrative authority and
responsibilities as it deems appropriate; provided, however, the Board may not delegate its authority with respect to non-ministerial
actions relating to Awards to Employees who are subject to the reporting requirements of Section 16(a) of the Exchange Act
or officers of the Company (or Directors) to whom authority to grant or amend Awards has been delegated hereunder. For the avoidance
of doubt, provided it meets the limitation in the preceding sentence, this delegation shall include the right to modify Awards as necessary
to accommodate changes in the laws or regulations. Any delegation hereunder shall be subject to the restrictions and limits that the
Board specifies at the time of such delegation, and the Board may at any time rescind the authority so delegated or appoint a new delegatee.
At all times, the delegatee appointed under this Section 8.5 shall serve in such capacity at the pleasure of the Board.
ARTICLE 9.
PLAN EXPIRATION DATE
The Plan will continue in effect until it is
terminated by the Board pursuant to Section 10.1 hereof, except that no Award may be granted under the Plan from and after
the tenth (10th) anniversary of the Effective Date. Any Awards that are outstanding on the date the Plan terminates shall remain in force
according to the terms of the Plan and the applicable Award Agreement.
ARTICLE 10.
AMENDMENT, MODIFICATION, AND TERMINATION
10.1 Amendment,
Modification, and Termination. Subject to Section 11.14 hereof, with the approval of the Board, at any time and from
time to time, the Board may terminate, amend or modify the Plan; provided, however, that (a) to the extent necessary
and desirable to comply with any applicable law, regulation, or stock exchange rule, the Company shall obtain shareholder approval of
any Plan amendment in such a manner and to such a degree as required, and (b) shareholder approval shall be required for any amendment
to the Plan that (i) increases the number of shares available under the Plan (other than any adjustment as provided by Article 7).
10.2 Awards
Previously Granted. Except with respect to amendments made or other actions taken pursuant to Section 11.14 hereof or
any amendment or other action with respect to an outstanding Award that may be required or desirable to comply with applicable law, as
determined in the sole discretion of the Board, no termination, amendment, or modification of the Plan shall adversely affect in any
material way any Award previously granted pursuant to the Plan without the prior written consent of the Participant.
ARTICLE 11.
GENERAL PROVISIONS
11.1 No
Rights to Awards. No Eligible Individual or other person shall have any claim to be granted any Award pursuant to the Plan, and neither
the Company nor the Board is obligated to treat Eligible Individuals, Participants or any other persons uniformly.
11.2 No
Shareholders Rights. Except as otherwise provided herein, a Participant shall have none of the rights of a shareholder with respect
to Shares covered by any Award, including the right to vote or receive dividends, until the Participant becomes the record owner of such
Shares.
11.3 Withholding.
The Company or any Subsidiary or Affiliate, as appropriate, shall have the authority and the right to deduct or withhold, or require
a Participant to remit to the Company, an amount sufficient to satisfy U.S. federal, state and local taxes and taxes imposed by jurisdictions
outside of the United States (including income tax, social insurance contributions, payment on account and any other taxes that may be
due) that the Company or a Subsidiary or Affiliate determines are required to be withheld with respect to any taxable event concerning
a Participant arising as a result of this Plan or to take such other action as may be necessary in the opinion of the Company or a Subsidiary
or Affiliate, as appropriate, to satisfy withholding obligations for the payment of taxes. The Board may in its discretion and in satisfaction
of the foregoing requirement direct the Company to withhold, or allow a Participant to elect to have the Company withhold, Shares otherwise
issuable under an Award (or allow the return of Shares) having a Fair Market Value equal to the sums required to be withheld; the number
of Shares so withheld may be determined using rates of up to, but not exceeding, the maximum federal, state, local and/or foreign statutory
tax rates applicable in a particular jurisdiction on the date that the amount of tax to be withheld is to be determined. No Shares shall
be delivered hereunder to any Participant or other person until the Participant or such other person has made arrangements acceptable
to the Board for the satisfaction of these tax obligations with respect to any taxable event concerning the Participant or such other
person arising as a result of Awards made under this Plan.
11.4 No
Right to Employment or Services. Nothing in the Plan or any Award Agreement shall interfere with or limit in any way the right of
the Company or any Subsidiary or Affiliate to terminate any Participant’s employment or services at any time, nor confer upon any
Participant any right to continue in the employ or service of the Company or any Subsidiary or Affiliate.
11.5 Unfunded
Status of Awards. The Plan is intended to be an “unfunded” plan for incentive compensation. With respect to any payments
not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give the Participant any
rights that are greater than those of a general creditor of the Company or any Subsidiary or Affiliate.
11.6 Indemnification.
To the extent allowable pursuant to applicable law, each member of the Board or of the Board shall be indemnified and held harmless by
the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with
or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason
of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment
in such action, suit, or proceeding against him or her; provided he or she gives the Company an opportunity, at its own expense, to handle
and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such persons may be entitled pursuant to the Company’s Certificate
of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
11.7 Relationship
to other Benefits. No payment pursuant to the Plan shall be taken into account in determining any benefits pursuant to any pension,
retirement, savings, profit sharing, group insurance, termination programs and/or indemnities or severance payments, welfare or other
benefit plan of the Company or any Subsidiary or Affiliate except to the extent otherwise expressly provided in writing in such other
plan or an agreement thereunder.
11.8 Expenses.
The expenses of administering the Plan shall be borne by the Company and/or its Subsidiaries and/or Affiliates.
11.9 Titles
and Headings. The titles and headings of the Sections in the Plan are for convenience of reference only and, in the event of any
conflict, the text of the Plan, rather than such titles or headings, shall control.
11.10 Fractional
Shares. No fractional Shares shall be issued and the Board shall determine, in its discretion, whether cash shall be given in lieu
of fractional shares or whether such fractional shares shall be eliminated by rounding up or down as appropriate.
11.11 Limitations
Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan, the Plan, and any Award granted or awarded
to any Participant who is then subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth
in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 under the
Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by applicable law, the Plan and
Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
11.12 Government
and Other Regulations. The obligation of the Company to make payment of awards in Shares or otherwise shall be subject to all applicable
laws, rules, and regulations of the United States and jurisdictions outside the United States, and to such approvals by government agencies,
including government agencies in jurisdictions outside of the United States, in each case as may be required or as the Company deems
necessary or advisable. Without limiting the foregoing, the Company shall have no obligation to issue or deliver evidence of title for
Shares subject to Awards granted hereunder prior to: (a) obtaining any approvals from governmental agencies that the Company determines
are necessary or advisable, and (b) completion of any registration or other qualification with respect to the Shares under any applicable
law in the United States or in a jurisdiction outside of the United States or ruling of any governmental body that the Company determines
to be necessary or advisable or at a time when any such registration or qualification is not current, has been suspended or otherwise
has ceased to be effective. The inability or impracticability of the Company to obtain or maintain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any
Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained and shall constitute circumstances in which the Board may determine to amend or cancel
Awards pertaining to such Shares, with or without consideration to the affected Participant. The Company shall be under no obligation
to register pursuant to the Securities Act, as amended, any of the Shares paid pursuant to the Plan. If the Shares paid pursuant to the
Plan may in certain circumstances be exempt from registration pursuant to the Securities Act, as amended, the Company may restrict the
transfer of such Shares in such manner as it deems advisable to ensure the availability of any such exemption.
11.13 Governing
Law. The internal law, and not the law of conflicts, of the State of Minnesota shall govern all questions concerning the validity,
construction and effect of the Plan and all Award Agreements, and any rules and regulations relating to the Plan and any Award Agreements.
11.14 Section 409A.
Except as provided in Section 11.15 hereof, to the extent that the Board determines that any Award granted under the Plan
is subject to Section 409A of the Code, the Award Agreement evidencing such Award shall incorporate the terms and conditions required
by Section 409A of the Code. To the extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Section 409A
of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any
such regulations or other guidance that may be issued after the date the Plan became effective. Notwithstanding any provision of the
Plan to the contrary, in the event that following the date an Award is granted the Board determines that the Award may be subject to
Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued
after the date the Plan became effective), the Board may adopt such amendments to the Plan and the applicable Award Agreement or adopt
other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, including
amendments or actions that would result in a reduction to the benefits payable under an Award, in each case, without the consent of the
Participant, that the Board determines are necessary or appropriate to (a) exempt the Award from Section 409A of the Code and/or
preserve the intended tax treatment of the benefits provided with respect to the Award, or (b) comply with the requirements of Section 409A
of the Code and related Department of Treasury guidance and thereby avoid the application of any penalty taxes under such Section or
mitigate any additional tax, interest and/or penalties or other adverse tax consequences that may apply under Section 409A of the
Code if compliance is not practical. Notwithstanding any contrary provision in this Plan or Award Agreement, any payment(s) of “nonqualified
deferred compensation” (within the meaning of Section 409A of the Code) that are otherwise required to be made under this
Plan to a “specified employee” (as defined under Section 409A of the Code) as a result of such employee’s separation
from service (other than a payment that is not subject to Section 409A of the Code) shall be delayed for the first six (6) months
following such separation from service (or, if earlier, until the date of death of the specified employee) and shall instead be paid
(in a manner set forth in the Award Agreement) upon expiration of such delay period.
11.15 No
Representations or Covenants with respect to Tax Qualification. Although the Company may endeavor to (a) qualify an Award for
favorable tax treatment under the laws of the United States or jurisdictions outside of the United States (e.g., incentive stock
options under Section 422 of the Code) or (b) avoid adverse tax treatment (e.g., under Section 409A of the Code),
the Company makes no representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax
treatment, anything to the contrary in this Plan, including Section 11.15 hereof, notwithstanding. The Company shall be unconstrained
in its corporate activities without regard to the potential negative tax impact on holders of Awards under the Plan. Nothing in this
Plan or in an Award Agreement shall provide a basis for any person to take any action against the Company or any Affiliate based on matters
covered by Section 409A of the Code, including the tax treatment of any Awards, and neither the Company nor any Affiliate will have
any liability under any circumstances to the Participant or any other party if the Award that is intended to be exempt from, or compliant
with, Section 409A of the Code, is not so exempt or compliant or for any action taken by the Board with respect thereto.
11.16 Provisions
for Foreign Participants. The Board may modify Awards granted to Participants who are foreign nationals or employed outside of the
United States or establish sub-plans or procedures under the Plan to recognize differences in laws, rules, regulations or customs of
foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.
Exhibit 10.15
| Granted
To: |
###PARTICIPANT_NAME### |
| Address: |
###HOME_ADDRESS### |
| Grant
Date: |
###GRANT_DATE### |
| Granted
Amount: |
###TOTAL_AWARDS### |
| Grant
Type: |
###DICTIONARY_AWARD_NAME### |
| |
|
| RSA
No: |
###EMPLOYEE_GRANT_NUMBER### |
| Plan: |
2023
Restricted Stock Plan |
PARK
DENTAL PARTNERS, INC.
2023 RESTRICTED STOCK Plan
RESTRICTED
STOCK AWARD AGREEMENT
This Restricted Stock Award
Agreement (the “Award Agreement”), made as of the date specified above (the “Grant Date”),
by and between Park Dental Partners, Inc., a Minnesota corporation (the “Company”), and ###PARTICIPANT_NAME###
(the “Participant”), residing at the address ###HOME_ADDRESS### set forth above.
WITNESSETH:
WHEREAS, pursuant to the
Park Dental Partners, Inc. 2023 Restricted Stock Plan, as amended to the Grant Date (the “Plan”), the
Company desires to grant to the Participant an award of restricted shares of [Class A-1 / A-2 / A-3] Common Stock, $0.0001
par value per share of the Company (the “Restricted Shares”), as hereinafter provided. Unless otherwise defined
herein, capitalized terms shall have the meanings assigned under the Plan.
NOW, THEREFORE, in consideration
of the premises and of the mutual promises hereinafter contained, the parties hereto agree as follows:
1.1. Grant
of Restricted Shares. Pursuant to the Plan, the Company has granted to the Participant a Restricted Stock Award consisting of the
number of Restricted Shares set forth above. Except as otherwise provided in Section 1.2 below, all of the Restricted Shares will
be unvested shares (the “Unvested Shares”) as of the Grant Date. In accordance with the vesting schedule set
forth in Section 1.2 below, all of the Restricted Shares will become vested shares (the “Vested Shares”)
from time to time after the Grant Date so long as the Participant’s Service (as defined below) continues. Unless otherwise provided
by the Board (or its delegate) in its sole discretion, the vesting of Restricted Shares will cease immediately upon (a) the termination
of the Participant’s Service for any reason or (b) with respect to a full-time Employee, the cessation of such Participant’s
employment on a full-time basis. No Restricted Shares will vest in respect of any period between (x) the date of termination of
the Participant’s Service or the date of cessation of a full-time Employee’s employment on a full-time basis, as applicable,
and (y) the immediately preceding vesting date.
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
Page 1 |
1.2. Vesting
Schedule. Except as otherwise provided in this Award Agreement, the Restricted Shares shall vest in one or more installments as follows:
a. 25%
upon the closing of an initial public offering of the Company’s Common Stock and shall continue to vest at the rate of 6.25% on
each subsequent calendar quarter for the following twelve quarters (totaling 75% over three years);
Or,
b. 100%
upon the Change of Control of the Company (in the absence of an initial public offering).
Notwithstanding
the foregoing or Section 1.1 above and except as otherwise provided herein, vesting requires continued full-time employment with
an entity included within the Company’s controlled group of companies for financial reporting purposes and departure before the
age of 62 will result in the forfeiture of any unvested restricted stock. 12-month notice is required prior to retirement and management
could set an earlier date for retirement if it is determined to be advantageous to the organization. In the event such earlier date is
mandated, unvested restricted stock awards shall continue to vest during the 12-month period.
In the event that
a Participant retires on or after age 62 (after having provided the 12-month notice required by this Section) prior to the closing of
an initial public offering of the Company’s Common Stock as contemplated by Subsection (a) above, there shall be no forfeiture
of any unvested restricted stock and any unvested restricted stock shall vest 100% upon the effective date of the closing of such initial
public offering of the Company’s common stock. In the event that the Participant retires on or after age 62 (after having provided
the 12-month notice required by this Section) after the closing of an initial public offering of the Company’s common stock as
contemplated by Subsection (a) above, any then unvested restricted stock shall vest 100% upon the effective date of such retirement.
In the event a
Participant is at least 62 years of age and reduces his / her to part-time or per diem employment, but remains an employee of an entity
within the Company’s controlled group of companies for financial reporting purposes, any unvested restricted stock shall not forfeit
and the Participant shall retain all unvested restricted stock and such stock will vest as provided above – i.e., vest 25% upon
an initial public offering and 6.25% on each subsequent calendar quarter for twelve quarters (totaling 75% over three years) or 100%
upon change of control (in the absence of an initial public offering). If the Participant gives 12 months’ notice and retires fully,
unvested restricted stock shall vest per the paragraph immediately above.
If a Participant
becomes Disabled as defined by the Plan (i.e., “Disability”) or dies (whether or not the Participant has an identified beneficiary
as provided in the Plan), any unvested restricted stock will not forfeit and shall vest 100% upon initial public offering of the Company’s
common stock or vest 100% upon change of control (in the absence of an initial public offering).
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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| 2. | Rights
as a Shareholder. |
2.1. Voting
Rights. The Participant shall be the record owner of the Restricted Shares until such Restricted Shares are sold or otherwise disposed
of or forfeited, and shall be entitled to all of the rights of a shareholder of the Company including, without limitation, the right
to vote such shares and, to the extent set forth in Section 2.2, the right to receive all dividends or other distributions paid
with respect to such shares.
2.2. Dividend
Rights. No dividends will be payable on this grant of Restricted Shares, unless specifically declared in writing by the Board. If
dividends are specifically authorized and declared on this award of Restricted Shares, no such dividends will be payable on Unvested
Shares; rather, the Participant shall accumulate an unvested right to future payment of Dividend Equivalents actually declared on Unvested
Shares, as set forth below. Such Dividend Equivalents (if authorized and declared), if any, will be credited to a bookkeeping account
in the name of the Participant. The Participant would be entitled to payment of any accumulated Dividend Equivalents with respect to
the Unvested Shares only to the extent that such Unvested Shares ultimately become vested pursuant to this Award Agreement. Dividend
Equivalents shall be subject to any required tax withholding, and shall be paid to the Participant as soon as administratively possible
following the date that the corresponding Unvested Shares become vested, but in no event later than March 15th of the year following
the year in which such vesting occurs. The Participant shall not be entitled to Dividend Equivalents with respect to dividends with a
record date prior to the date of this Award Agreement. The Dividend Equivalent amounts will be subject to the same vesting, forfeiture
and other terms and conditions applicable to the corresponding Unvested Shares.
2.3. Documentation
of Issuance. The Company may issue stock certificates or evidence the Participant’s interest by using a restricted book entry
account with the Company’s transfer agent. Physical possession or custody of any stock certificates that are issued shall be retained
by the Company until such time as the Restricted Shares become Vested Shares.
2.4. Legend.
A legend may be placed on any certificate(s) or other document(s) delivered to the Participant indicating restrictions on transferability
of the Restricted Shares issued pursuant to this Award Agreement or any other restrictions that the Board may deem advisable under the
rules, regulations and other requirements of the Securities and Exchange Commission, any applicable federal or state securities laws
or any stock exchange on which the shares of Common Stock are then listed or quoted.
| 3. | Non-Transferability
of Unvested Shares. The Participant may not sell, gift, transfer, assign, hypothecate,
pledge, encumber, abandon, contribute, distribute, exchange or otherwise dispose of, whether
by contract, operation of law or otherwise (collectively, “transfer”), any of
the Unvested Shares, or any beneficial interest therein, under any circumstances whatsoever.
Any transfer or purported transfer of any Unvested Shares, or any beneficial interest therein,
shall be null and void, and such Unvested Shares (and corresponding Dividend Equivalents,
if any) shall thereupon be immediately forfeited, and the Participant shall not be entitled
to any payment therefor. |
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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| 4. | Termination
of Service; Part-Time Work. |
4.1. General
Rule. In the event that, prior to the vesting date, the Participant ceases to provide services to the Company (or any Subsidiary
or Affiliate) in the capacity of an Employee, Director or Consultant (collectively referred to herein as “Service”) for any
reason, with or without cause, the Participant shall forfeit all then Unvested Shares (and Dividend Equivalents, if any) and the Participant
shall not be entitled to any payment therefor.
4.2. Determination
of Termination Date. For purposes of this Award Agreement, the Participant’s date of cessation of Service shall mean the date
upon which the Participant ceases active performance of services for the Company, a Subsidiary or Affiliate, as determined by the Company,
including following the provision of a notification of termination or resignation from Service and shall be determined solely by this
Award Agreement and without reference to any other agreement, written or oral, including the Participant’s employment agreement
(if any). Thus, in the event of termination of the Participant’s Service (regardless of the reason for such termination and whether
or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of
the Participant’s employment agreement, if any), unless otherwise expressly provided in this Award Agreement or determined by the
Company, the Participant’s right to vest in the Restricted Shares under the Plan, if any, will terminate as of such date and will
not be extended by any notice period (e.g., the Participant’s period of Service would not include any contractual notice period
or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where the Participant
is employed or the terms of the Participant’s employment agreement, if any). The Board shall have the exclusive discretion to determine
when the Participant is no longer actively performing services for purposes of the grant of Restricted Shares (including whether the
Participant may still be considered to be providing services while on a leave of absence).
4.3. Part-Time
Work. If the Participant who is employed as a full-time Employee commences working on a part-time or per diem basis, then (i) the
Participant’s right to vest in the Restricted Shares under the Plan, if any, will terminate as of such date of the change in employment
status and will not be extended by any notice period, and (ii) the Participant shall forfeit all then Unvested Shares (and Dividend
Equivalents, if any) and the Participant shall not be entitled to any payment therefor. Notwithstanding, if a Participant, who is age
62 or older, receives written approval from the Company to work on a part-time or per diem basis, then the Participant’s right
to vest in the Restricted Securities shall continue during such part-time or per diem basis. The Board shall have the exclusive discretion
to determine whether vesting shall continue for a Participant who is no longer working as a full-time Employee for purposes of the Restricted
Shares.
| 5. | Beneficial
Ownership of Shares; Certificate Registration. The Participant hereby authorizes
the Company, in its sole discretion, to deposit for the benefit of the Participant with a
Company-designated brokerage firm or, at the Company’s discretion, any other broker
with which the Participant has an account relationship of which the Company has notice, any
or all Restricted Shares acquired by the Participant pursuant to the Award. Except as provided
by the preceding sentence, a certificate for the Shares as to which the Award is settled
shall be registered in the name of the Participant. |
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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| 6. | Restrictions
on Grant of the Award and Issuance of Shares. The grant of the Award and issuance
of the Restricted Shares shall be subject to compliance with all applicable requirements
of U.S. federal, state or foreign law with respect to such securities. No Restricted Shares
may be issued hereunder if the issuance of such Restricted Shares would constitute a violation
of any applicable U.S. federal, state or foreign securities laws or other laws or regulations
or the requirements of any stock exchange or market system upon which the Common Stock may
then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction
the authority, if any, deemed by the Company’s legal counsel to be necessary to the
lawful issuance of any Restricted Shares subject to the Award shall relieve the Company of
any liability in respect of the failure to issue such Restricted Shares as to which such
requisite authority shall not have been obtained. Further, regardless of whether the transfer
of the Restricted Shares has been registered under the Securities Act or has been registered
or qualified under the securities laws of any State, the Company may impose additional restrictions
upon the sale, pledge, or other transfer of the Restricted Shares (including the placement
of appropriate legends on stock certificates and the issuance of stop-transfer instructions
to the Company’s transfer agent) if, in the judgment of the Company and the Company’s
counsel, such restrictions are necessary in order to achieve compliance with the provisions
of the Securities Act, the securities laws of any State, or any other law. |
| 7. | Tax
Withholding and Advice. |
7.1. In
General. The Participant acknowledges that, regardless of any action taken by the Company or, if different, the Participant’s
employer (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe
benefits tax, payment on account or other tax-related items related to the Participant’s participation in the Plan and legally
applicable to the Participant (“Tax-Related Items”), is and remains the Participant’s responsibility
and may exceed the amount actually withheld by the Company or the Employer. The Participant further acknowledges that the Company and/or
the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any
aspect of the Restricted Shares, including, but not limited to, the grant or vesting of the Restricted Shares, the subsequent sale of
Restricted Shares and the receipt of any dividends; and (ii) do not commit to and are under no obligation to structure the terms
of the grant or any aspect of the Restricted Shares to reduce or eliminate the Participant’s liability for Tax-Related Items or
achieve any particular tax result. Further, if the Participant is subject to Tax-Related Items in more than one jurisdiction between
the Grant Date and the date of any relevant taxable or tax withholding event, as applicable, the Participant acknowledges that the Company
and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one
jurisdiction.
7.2. Withholding
of Taxes. Prior to any relevant taxable or tax withholding event, as applicable, the Participant agrees to make adequate arrangements
satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items (including hypothetical withholding tax amounts if the
Participant is covered under a Company tax equalization policy). In this regard, the Participant authorizes the Company or its agent
to satisfy the obligations with regard to all Tax-Related Items by withholding Vested Shares, subject to Section 14.3 of the Plan.
In the event that such withholding of Vested Shares is problematic under applicable tax or securities law or has materially adverse accounting
consequences (as determined by the Company), by the Participant’s acceptance of the Restricted Shares, the Participant authorizes
and directs the Company and any brokerage firm determined acceptable to the Company to sell on the Participant’s behalf a whole
number of Vested Shares from the Award as the Company determines to be appropriate to generate cash proceeds sufficient to satisfy the
obligation for Tax-Related Items.
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
Page 5 |
Depending on the withholding method,
the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable
withholding rates, including maximum applicable rates, in which case the Participant may receive a refund of any over-withheld amount
in cash and will have no entitlement to the Common Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding
Vested Shares, for tax purposes, the Participant is deemed to have been issued the full number of Vested Shares, notwithstanding that
a number of the Vested Shares are held back solely for the purpose of paying the Tax-Related Items.
7.3. Section 83(b) Election.
The Participant understands that, under Section 83 of the Code, the difference between the purchase price paid for the Restricted
Shares and their fair market value at the time that any such Restricted Shares become Vested Shares may be reportable as ordinary income
at that time. The Participant understands that he or she may file with the Internal Revenue Service (the “IRS”)
an election under Section 83(b) of the Code that may, under certain circumstances, provide the Participant with more favorable
tax treatment of the Restricted Shares. Failure to timely file an election under Section 83(b) of the Code, if appropriate,
may result in adverse tax consequences to the Participant.
To be effective, an election under
Section 83(b) of the Code must be filed with the IRS within thirty (30) days after the date on which the Participant receives
the Restricted Shares. This time period cannot be extended. The Participant acknowledges that timely filing of an election under Section 83(b) of
the Code is the Participant’s sole responsibility, even if the Participant requests that the Company or its representatives file
such election on his or her behalf.
The Participant understands that
the Participant should consult with the Participant’s own tax advisor regarding the tax effects of the issuance of the Restricted
Shares to the Participant and the advisability of the Participant filing an election under Section 83(b) of the Code with the
IRS.
7.4. Tax
Advice. The Participant represents, warrants and acknowledges that the Company has made no warranties or representations to the Participant
with respect to the income tax, social contributions or other tax consequences of the transactions contemplated by this Award Agreement,
and the Participant is in no manner relying on the Company or the Company’s representatives for an assessment of such tax consequences.
THE PARTICIPANT UNDERSTANDS THAT THE TAX AND SOCIAL SECURITY LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE PARTICIPANT IS HEREBY ADVISED
TO CONSULT WITH HIS OR HER OWN PERSONAL TAX, LEGAL AND FINANCIAL ADVISORS REGARDING THE PARTICIPANT’S PARTICIPATION IN THE PLAN
BEFORE TAKING ANY ACTION RELATED TO THE PLAN. NOTHING STATED HEREIN IS INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE
OF AVOIDING TAXPAYER PENALTIES.
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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| 8. | Authorization
to Release Necessary Personal Information. |
The Participant hereby
explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participant’s personal
data as described in this Award Agreement and any other Award grant materials (“Data”) by and among, as applicable, the Employer,
the Company and its Subsidiaries and Affiliates for the exclusive purpose of implementing, administering and managing the Participant’s
participation in the Plan.
The Participant understands
that the Company and the Employer may hold certain personal information about the Participant, including, but not limited to, the Participant’s
name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality,
job title, any Shares or directorships held in the Company, details of all Restricted Shares or any other entitlement to Shares awarded,
canceled, exercised, vested, unvested or outstanding in the Participant’s favor, for the exclusive purpose of implementing, administering
and managing the Plan.
The Company may retain
the services of an equity compensation plan recordkeeper (the “Recordkeeper”) to facilitate administration of the Plan. In
such event, the Participant understands that Data will be transferred to the Recordkeeper or such other stock plan service provider as
may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of
the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the
recipient’s country (e.g., the United States) may have different data privacy laws and protections than the Participant’s
country. The Participant understands that if he or she resides outside the United States, he or she may request a list with the names
and addresses of any potential recipients of the Data by contacting the Company’s Chief Financial Officer. The Participant authorizes
the Company, the Recordkeeper and any other possible recipients which may assist the Company (presently or in the future) with implementing,
administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole
purposes of implementing, administering and managing the Participant’s participation in the Plan. The Participant understands that
Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan.
The Participant understands that if he or she resides outside the United States, he or she may, at any time, view Data, request additional
information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein,
in any case without cost, by contacting the Company’s Chief Financial Officer. Further, the Participant understands that he or
she is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if the Participant later seeks
to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected; the
only adverse consequence of refusing or withdrawing the Participant’s consent is that the Company would not be able to grant the
Participant Restricted Shares or other equity awards or administer or maintain such awards. Therefore, the Participant understands that
refusing or withdrawing his or her consent may affect the Participant’s ability to participate in the Plan. For more information
on the consequences of the Participant’s refusal to consent or withdrawal of consent, the Participant understands that he or she
may contact the Company’s Chief Financial Officer.
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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| 9. | Effect
of Change in Control on Award. In the event of a Change in Control, the vesting of
the Restricted Shares shall be accelerated in full and the total number of Restricted Shares
subject to the Award shall become Vested Shares effective as of immediately prior to the
date of the Change in Control, provided that the Participant’s Service has not terminated
prior to such date. |
| 10. | Adjustments
for Changes in Capital Structure. The number of Restricted Shares awarded pursuant
to this Award Agreement is subject to adjustment as provided in this Award Agreement and
Article 10 of the Plan. Upon the occurrence of an event described in Article 10
of the Plan, any and all new, substituted or additional securities or other property to which
a holder of a Restricted Share would be entitled shall be immediately subject to the Award
Agreement and included within the meaning of the term “Restricted Shares” for
all purposes of the Award. The Participant shall be notified of such adjustment and such
adjustments shall be binding upon the Company and the Participant. |
| 11. | No
Entitlement or Claims for Compensation. |
In accepting the Award, the
Participant acknowledges, understands and agrees that:
11.1. the
Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated
by the Company at any time, to the extent permitted by the Plan;
11.2. the
grant of the Restricted Shares is voluntary and occasional and does not create any contractual or other right to receive future grants
of Restricted Shares, or benefits in lieu of Restricted Shares, even if Restricted Shares have been granted in the past;
11.3. all
decisions with respect to future Awards of Restricted Shares or other grants, if any, will be at the sole discretion of the Company;
11.4. the
Restricted Shares and the Participant’s participation in the Plan shall not create a right to employment or be interpreted as forming
an employment or services contract with the Company, the Employer or any Subsidiary or Affiliate and shall not interfere with the ability
of the Company, the Employer or any Subsidiary or Affiliate, as applicable, to terminate the Participant’s employment or service
relationship (if any);
11.5. the
Participant is voluntarily participating in the Plan;
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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11.6. the
Restricted Shares are not intended to replace any pension rights or compensation;
11.7. the
Restricted Shares and the income and value of same are not part of normal or expected compensation for purposes of calculating any severance,
resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare
benefits or similar payments;
11.8. the
future value of the Restricted Shares is unknown, indeterminable and cannot be predicted with certainty;
11.9. no
claim or entitlement to compensation or damages shall arise from forfeiture of the Restricted Shares (and Dividend Equivalents, if any)
resulting from the termination of the Participant’s employment or other service relationship (for any reason whatsoever whether
or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of
the Participant’s employment agreement, if any), and in consideration of the grant of the Restricted Shares to which the Participant
acknowledges he or she is otherwise not entitled, the Participant irrevocably agrees never to institute any such claim against the Company,
any of its Subsidiaries or Affiliates or the Employer, waives his or her ability, if any, to bring any such claim, and releases the Company,
its Subsidiaries and Affiliates and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by
a court of competent jurisdiction, then, by participating in the Plan, the Participant shall be deemed irrevocably to have agreed not
to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim; and
11.10. unless
otherwise provided in the Plan or determined by the Company in its discretion, the Restricted Shares and the benefits evidenced by this
Award Agreement do not create any entitlement to have the Restricted Shares or any such benefits transferred to, or assumed by, another
company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the
Company.
| 12. | Miscellaneous
Provisions. |
12.1. Amendment.
The Board may amend this Award Agreement at any time; provided, however, that no such amendment may adversely affect the Participant’s
rights under this Award Agreement without the consent of the Participant, except to the extent such amendment is desirable or necessary
to comply with applicable law, including, but not limited to, Section 409A of the Code, as further provided in the Plan. No amendment
or addition to this Award Agreement shall be effective unless in writing.
12.2. Further
Instruments and Imposition of Other Requirements. The parties hereto agree to execute such further instruments and to take such further
action as may reasonably be necessary to carry out the intent of this Award Agreement. The Company reserves the right to impose other
requirements on Participant’s participation in the Plan, on the Restricted Shares and on any other Shares acquired under the Plan
to the extent the Company determines it is necessary or advisable in order to comply with local law or facilitate the administration
of the Plan. Furthermore, the Participant acknowledges that the laws of the country in which the Participant is working at the time of
grant or vesting of the Restricted Shares or the sale of Vested Shares received pursuant to this Award Agreement (including any rules or
regulations governing securities, foreign exchange, tax, labor, or other matters) may subject the Participant to additional procedural
or regulatory requirements that the Participant is and will be solely responsible for and must fulfill.
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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12.3. Binding
Effect. This Award Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions
on transfer set forth herein, be binding upon the Participant and the Participant’s heirs, executors, administrators, successors
and permitted assigns.
12.4. Notices.
Any notice required to be given or delivered to the Company under the terms of this Award Agreement shall be in writing and addressed
to the Company at its principal corporate offices. Any notice required to be given or delivered to the Participant shall be in writing
and addressed to the Participant at the address maintained for the Participant in the Company’s records or at the address of the
local office of the Company or of a Subsidiary or Affiliate at which the Participant works.
12.5. Construction
of Award Agreement. This Award Agreement, and the Restricted Shares evidenced hereby (a) are made and granted pursuant to the
Plan and are in all respects limited by and subject to the terms of the Plan, and (b) constitute the entire agreement between the
Participant and the Company on the subject matter hereof and supersede all proposals, written or oral, and all other communications between
the parties related to the subject matter. All decisions of the Board with respect to any question or issue arising under this Award
Agreement or the Plan shall be conclusive and binding on all persons having an interest in the Restricted Shares.
12.6. Governing
Law. The interpretation, performance and enforcement of this Award Agreement shall be governed by the laws of the State of Minnesota,
U.S.A. without regard to the conflict-of-laws rules thereof or of any other jurisdiction.
12.7. Arbitration;
Choice of Forum. BY ACCEPTING THIS AWARD, THE PARTICIPANT UNDERSTANDS AND AGREES THAT ANY DISPUTE, CONTROVERSY OR CLAIM BETWEEN THE
COMPANY AND THE PARTICIPANT ARISING OUT OF OR RELATING TO OR CONCERNING THE PLAN OR THIS AWARD AGREEMENT SHALL BE FINALLY SETTLED BY
ARBITRATION IN MINNEAPOLIS, MINNEOSTA PURSUANT TO THE TERMS THEREOF, SHALL APPLY.
12.8. Section 409A.
Notwithstanding any other provision of the Plan or this Award Agreement, the Plan and this Award Agreement shall be interpreted in accordance
with, and incorporate the terms and conditions required by, Section 409A of the Code (together with any Department of Treasury regulations
and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued
after the date hereof). The vesting and settlement of Dividend Equivalents awarded pursuant to this Award Agreement are intended to qualify
for the “short-term deferral” exemption from Section 409A of the Code and the terms of this Award Agreement shall be
interpreted in compliance with this intention. The Company reserves the right, to the extent the Company deems necessary or advisable
in its sole discretion, to unilaterally amend or modify the Plan and/or this Award Agreement or adopt other policies and procedures (including
amendments, policies and procedures with retroactive effect), or take any other actions, including amendments or actions that would result
in a reduction in benefits payable under the Award, as the Board determines are necessary or appropriate to ensure that the Dividend
Equivalents qualify for exemption from or comply with Section 409A of the Code or mitigate any additional tax, interest and/or penalties
or other adverse tax consequences that may apply under Section 409A of the Code; provided, however, that the Company makes no representations
that the Dividend Equivalents will be exempt from Section 409A of the Code and makes no undertaking to preclude Section 409A
of the Code from applying to any Dividend Equivalents.
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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12.9. Administration.
The Board shall have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions taken and all interpretations
and determinations made by the Board in good faith shall be final and binding upon the Participant, the Company and all other interested
persons. No member of the Board shall be personally liable for any action, determination or interpretation made in good faith with respect
to the Plan, this Award Agreement or the Restricted Shares.
12.10. Noncompete.
Grantee agrees to not compete with the Company or any entity within the Company’s controlled group of entities for financial reporting
purposes for a period of twenty-four (24) months following termination of employment within a 15 mile radius of Grantee’s principal
place of employment at the time of termination.
12.11. Counterparts.
This Award Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
12.12. Severability.
If any provision of this Award Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible,
in order to achieve the intent of the parties to the extent possible. In any event, all other provisions of this Award Agreement shall
be deemed valid and enforceable to thase full extent possible.
12.13. Language.
If the Participant has received this Award Agreement or any other document related to the Plan in a language other than English and the
meaning of the translated version is different from the English version, the English version will control.
12.14. Electronic
Delivery. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in
the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate
in the Plan through an online or electronic system established and maintained by the Company or a third party designated by the Company.
Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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12.15. Waiver.
The Participant acknowledges that the Company’s waiver of a breach of any provision of this Award Agreement shall not operate or
be construed as a waiver of any other provision of this Award Agreement, or of any subsequent breach by the Participant or any other
participant.
12.16. Clawback/Recovery.
The Restricted Shares shall be subject to any Clawback/Recovery Plan adopted by the Company.
12.17. Agreement
Not to Sell. Participant agrees that in connection with any initial public offering of the equity securities of the Company registered
with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for a period of 180 days after the effective
date of the initial public offering, Participant will not offer for sale, sell, contract to sell, grant any option for the sale of or
otherwise issue or dispose of any shares of common stock of the Company owned by the Participant. Participant further agrees that at
or prior to the time of the initial public offering, Participant will sign a document or any other evidence of its agreement under the
foregoing sentence, that such agreement shall inure to and be binding upon any buyer, donee or transferee, and that any certificates
evidencing the securities issued pursuant to this agreement shall bear a legend setting forth such binding effect.
Participant has been provided
a notice of this Award Agreement and agrees to be bound by the terms and conditions of the Plan and this Award Agreement. The Participant
acknowledges and agrees that he/she has reviewed this Award Agreement and the Plan in their entirety, has had an opportunity to obtain
the advice of counsel and fully understands all provisions of this Award Agreement and the Plan. The Participant agrees to accept as
binding, conclusive and final all decisions or interpretations of the Board upon any questions arising under the Plan or relating to
the Restricted Shares.
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Restricted Stock Award Agreement Park Dental Partners, Inc. - 2023 Restricted Stock Plan |
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EXHIBIT 10.16
PARK
DENTAL PARTNERS, INC.
2023
Equity Incentive Plan
ARTICLE 1.
PURPOSE OF THE PLAN
The name of this plan is the Park Dental Partners, Inc.
2023 Equity Incentive Plan (the “Plan”). The purposes of the Plan are to (a) enable Park Dental Partners, Inc.,
a Minnesota corporation (the “Company”), and any Affiliate to attract and retain the types of Employees, Consultants
and Directors who will contribute to the Company’s long range success; (b) provide incentives that align the interests of Employees,
Consultants and Directors with those of the shareholders of the Company; and (c) promote the success of the Company’s business.
ARTICLE 2.
DEFINITIONS
Wherever the following terms are used in the Plan
they shall have the meanings specified below, unless the context clearly indicates otherwise. The singular pronoun shall include the plural
where the context so indicates.
2.1 “Affiliate”
shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act. The Board shall have the authority
to determine the time or times at which “Affiliate” status is determined within the foregoing definition. For purposes of
clarity, the term “Affiliate” shall include, but not be limited to entities within the Company’s consolidated group
for financial reporting purposes.
2.2 “Award”
means an Option, an award of Restricted Stock, a Stock Appreciation Right, an award of Performance Shares, an award of Performance Stock
Units, an award of Restricted Stock Units or any other right or benefit, including any other Award under Article 8, granted
to a Participant pursuant to the Plan.
2.3 “Award
Agreement” means any written agreement, contract, or other instrument or document evidencing the terms and conditions of an
Award, including through electronic medium.
2.4 “Board”
means the Board of Directors of the Company.
2.5 “Cause”
shall have the meaning ascribed to such term in the Award Agreement, or if the term is not defined in the Award Agreement, shall mean,
with respect to an Employee, (a) a final, non-appealable conviction of the Employee for commission of a felony involving moral turpitude,
(b) the Employee’s willful gross misconduct that causes material economic harm to the Company or that brings substantial discredit
to the Company’s reputation, or (c) the Employee’s material failure or refusal to perform his or her duties if such Employee
has failed to cure such failure or refusal to perform within thirty (30) days after the Company notifies the Employee in writing of such
failure or refusal to perform.
2.6 “Change
in Control” shall mean the first to occur of:
(a) completion
of a consolidation or merger in which the Company is not the continuing or surviving entity or pursuant to which each class of the Company’s
common stock would be converted into cash, securities or other property, other than (i) a consolidation or merger of the Company
in which the holders of each class of common stock immediately prior to the consolidation or merger have the same proportionate ownership
and voting power with respect to the common stock of the surviving corporation immediately after the consolidation or merger, or (ii) a
consolidation or merger which would result in the voting securities of the Company outstanding immediately prior thereto continuing to
represent (by being converted into voting securities of the continuing or surviving entity) 50% or more of the combined voting power of
the voting securities of the surviving or continuing entity immediately after such consolidation or merger and which would result in the
members of the Board immediately prior to such consolidation or merger (including, for this purpose, any individuals whose election or
nomination for election was approved by a vote of at least two-thirds of such members), constituting a majority of the board of directors
(or equivalent governing body) of the surviving or continuing entity immediately after such consolidation or merger;
(b) shareholder
approval of a plan of complete liquidation or dissolution of the Company or consummation of a sale or disposition by the Company of all
or substantially all of the Company’s assets, in one transaction or a series of related transactions, other than a sale or disposition
by the Company of all or substantially all of the Company’s assets to an entity, more than 50% of the combined voting power of the
voting securities of which is owned by shareholders of the Company in substantially the same proportion as their ownership of the Company
immediately prior to such sale;
(c) any
person (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act), other than (i) persons or their family
members or affiliates which have such voting power on the date of adoption of the Plan, or (ii) any trustee or other fiduciary holding
securities under any employee benefit plan of the Company, shall become the beneficial owner (within the meaning of Rule 13d-3 under
the Exchange Act) of 66 2/3% or more of the combined voting power of the voting securities of the Company other than pursuant to a plan
or arrangement entered into by such person and the Company; or
(d) during
any period of two consecutive years, individuals who at the beginning of such period constitute the entire Board (the “Incumbent
Board”) shall cease for any reason to constitute a majority of the Board; provided, that, other than in connection
with an actual or threatened proxy contest, any individual who becomes a director subsequent to the beginning of the period, whose election,
or nomination for election by the Company’s shareholders, was approved by a vote of at least two-thirds of the directors then still
in office who were directors at the beginning of the period shall be deemed a member of the Incumbent Board.
Further, if a Change in Control constitutes
a payment event with respect to any Award which provides for the deferral of compensation and is subject to Section 409A of the Code,
in order to make payment upon such Change in Control, the transaction or event described above with respect to such Award must also constitute
a “change in the ownership,” a “change in the effective control” or a “change in the ownership of a substantial
portion of the assets” of the Company within the meaning of Treasury Regulation Section 1.409A-3(i)(5) (or any successor
provision), and if it does not, payment of such Award will be made pursuant to the Award’s original payment schedule or, if earlier,
upon the death of the Participant, unless otherwise provided in the Award Agreement.
2.7 “Class A-1
Share” means a share of Class A-1 Common Stock, $0.0001 par value per share, of the Company, or such other securities of
the Company as may be designated by the Board from time to time in substitution thereof.
2.8 “Class A-2
Share” means a share of Class A-2 Common Stock, $0.0001 par value per share, of the Company, or such other securities of
the Company as may be designated by the Board from time to time in substitution thereof.
2.9 Class A-3
Share” means a share of Class A-3 Common Stock, $0.0001 par value per share, of the Company, or such other securities of
the Company as may be designated by the Board from time to time in substitution thereof
2.10 “Code”
means the U.S. Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall be
deemed to include a reference to any regulations promulgated thereunder.
2.11 “Committee”
means the committee of one or more members of the Board appointed or described in Article 11 to administer the Plan.
2.12 “Common
Stock” means (i) the Class A-1 Common Stock, $0.0001 par value per share, of the Company, (ii) the Class A-2
Common Stock, $0.0001 par value per share, of the Company, and (iii) the Class A-3 Common Stock, $0.0001 par value per share,
of the Company, combined, or such other securities of the Company as may be designated by the Board from time to time in substitution
thereof.
2.13 “Consultant”
means any consultant or adviser if: (a) the consultant or advisor renders bona fide services to the Company or any Subsidiary or
Affiliate; (b) the services rendered by the consultant or advisor are not in connection with the offer or sale of securities in a
capital-raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities; and (c) the
consultant or advisor is a natural person.
2.14 “Continuous
Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant or
Director, is not interrupted or terminated. The Participant’s Continuous Service shall not be deemed to have terminated merely because
of a change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director
or a change in the entity for which the Participant renders such service, provided that there is no interruption or termination of the
Participant’s Continuous Service; provided further that if any Award is subject to Section 409A of the Code, this sentence
shall only be given effect to the extent consistent with Section 409A of the Code. For example, a change in status from an Employee
of the Company to a Director of an Affiliate will not constitute an interruption of Continuous Service. The Committee or its delegate,
in its sole discretion, may determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved
by that party, including sick leave, military leave or any other personal or family leave of absence. The Committee or its delegate, in
its sole discretion, may determine whether a Company transaction, such as a sale or spin-off of a division or subsidiary that employs
a Participant, shall be deemed to result in a termination of Continuous Service for purposes of affected Awards, and such decision shall
be final, conclusive and binding.
2.15 “Director”
means a member of the Board.
2.16 “Disability”
means, unless otherwise provided in the Award Agreement, that the Participant would qualify to receive benefit payments under the long-term
disability policy, as it may be amended from time to time, of the Company or any Subsidiary or Affiliate to which the Participant provides
services regardless of whether the Participant is covered by such policy. If the Company or any Subsidiary or Affiliate to which the Participant
provides service does not have a long-term disability plan in place, “Disability” means that a Participant is unable to carry
out the responsibilities and functions of the position held by the Participant by reason of any medically determined physical or mental
impairment for a period of not less than ninety (90) consecutive days. A Participant shall not be considered to have incurred a Disability
unless he or she furnishes proof of such impairment sufficient to satisfy the Board (or its delegate) in its discretion. The determination
of whether an individual has a Disability shall be determined under procedures established by the Committee. Notwithstanding the foregoing,
for purposes of Incentive Stock Options granted under the Plan, “Disability” means that the Participant is permanently and
totally disabled within the meaning of Section 22(e)(3) of the Code, and for purposes of an Award that is subject to Section 409A
of the Code, shall mean a “Disability” within the meaning of Section 409A of the Code to the extent necessary to comply
with Section 409A of the Code.
2.17 “Dividend
Equivalent” means a right granted to a Participant related to the Award of Restricted Stock, Restricted Stock Units, Performance
Shares and/or Performance Stock Units which is a right to accrue the equivalent value of dividends paid on the Shares prior to vesting
of the Award (or prior to payment of an Award that is subject to deferred settlement). Such Dividend Equivalents shall be converted to
cash or additional Shares, or a combination of cash and Shares, by such formula and at such time and subject to such limitations as may
be determined by the Committee, provided, however, that in no event shall Dividend Equivalents be paid on any Award that
is not vested or that does not become vested in accordance with its terms.
2.18 “Effective
Date” means the date on which the Plan is approved by the Company’s shareholders if such shareholder approval occurs before
the first anniversary of the date the Plan is adopted by the Board.
2.19 “Eligible
Individual” means any person who is an Employee, a Consultant or a Director, as determined by the Committee.
2.20 “Employee”
means a full time or part time employee of the Company or any Subsidiary or Affiliate, including an officer or Director, who is treated
as an employee in the personnel records of the Company or Subsidiary or Affiliate for the relevant period, but shall exclude individuals
who are classified by the Company or Subsidiary or Affiliate as (a) independent contractors or (b) intermittent or temporary,
even if any such classification is changed retroactively as a result of an audit, litigation or otherwise. A Participant shall not cease
to be an Employee in the case of (i) any vacation or sick time or otherwise approved paid time off in accordance with the Company
or Subsidiary or Affiliate’s policy or (ii) transfers between locations of the Company or between the Company, a Subsidiary
and/or Affiliate; provided that, with respect to an Award that constitutes a deferral of compensation and is subject to Section 409A
of the Code, in order to settle such an Award as a result of a separation from service (including a termination of employment), whether
or not a Participant has had a “separation from service” will be determined within the meaning of such term under Section 409A
of the Code. Neither services as a Director nor payment of a director’s fee by the Company or a Subsidiary or Affiliate shall be
sufficient to constitute “employment” by the Company or any Subsidiary or Affiliate.
2.21 “Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
2.22 “Fair
Market Value” means, as of any given date, the value of the Common Stock as determined below. If the Common Stock is listed
on any established stock exchange or quotation system, including without limitation the New York Stock Exchange or the NASDAQ Stock Market,
the Fair Market Value shall be the closing price of a share of Common Stock (or if not sales were reported the closing price on the date
immediately preceding such date) as quoted on such exchange or system on such date, as reported in the Wall Street Journal (or such other
source as the Company may deem reliable for such purposes). In the absence of an established market for the Common Stock, the Fair Market
Value shall be determined in good faith by the Committee and in compliance with Section 409A of the Code to the extent necessary
to exempt an Award from or comply with Section 409A of the Code. Such determination shall be conclusive and binding on all persons.
2.23 “Incentive
Stock Option” means an Option that is intended to meet the requirements of Section 422 of the Code or any successor provision
thereto.
2.24 “Independent
Director” means a Director of the Company who qualifies as a “Non-Employee Director” as defined in Rule 16b-3(b)(3) under
the Exchange Act, or any successor rule, and an “independent director” under the NASDAQ rules (or other principal securities
market on which Shares are traded).
2.25 “Non-Employee
Director” means a Director who is a “non-employee director” within the meaning of Rule 16b-3.
2.26 “Non-Qualified
Stock Option” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.
2.27 “Option”
means a right granted to a Participant pursuant to Article 5 to purchase a specified number of Shares at a specified price
during specified time periods. An Option may be either an Incentive Stock Option or a Non-Qualified Stock Option.
2.28 “Participant”
means any Eligible Individual who, as a Director, Consultant or Employee, has been granted an Award pursuant to the Plan.
2.29 “Performance
Criteria” means, for a Performance Period, the one or more goals established by the Committee for the Performance Period based
upon business criteria or other performance measures determined by the Committee in its discretion.
2.30 “Performance
Goals” means, for a Performance Period, the goals established in writing by the Committee for the Performance Period based upon
the Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the Performance Goals may be
expressed in terms of overall Company performance, the performance of a Subsidiary or Affiliate, the performance of a division or a business
unit of the Company or a Subsidiary or Affiliate, or the performance of an individual. The Committee, in its discretion, may appropriately
adjust or modify the calculation of Performance Goals for such Performance Period (a) in the event of, or in anticipation of, any
unusual or infrequently occurring corporate item, transaction, event, or development, or (b) in recognition of, or in anticipation
of, any other unusual, infrequently occurring or nonrecurring events affecting the Company, or the financial statements of the Company,
or in response to, or in anticipation of, changes in applicable laws, regulations, accounting principles, or business conditions.
2.31 “Performance
Period” means one or more periods of time which may be of varying and overlapping durations, as the Committee may select, over
which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to,
and the payment of, a Performance Share or Performance Stock Unit.
2.32 “Performance
Share” means a right granted to a Participant pursuant to Section 8.1 hereof, to receive Shares, the payment of
which is contingent upon achieving certain Performance Goals or other performance-based targets established by the Committee.
2.33 “Performance
Stock Unit” means a right granted to a Participant pursuant to Section 8.2 hereof, to receive Shares (or value of
Shares in cash), the payment of which is contingent upon achieving certain Performance Goals or other performance-based targets established
by the Committee
2.34 “Plan”
means this Park Dental Partners, Inc. 2023 Equity Incentive Plan, as it may be amended and/or amended and restated from time to time.
2.35 “Restricted
Stock” means Shares awarded to a Participant pursuant to Article 6 that are subject to certain restrictions as set
forth in the Award Agreement.
2.36 “Restricted
Stock Unit” means an Award granted pursuant to Section 8.3 hereof and shall be evidenced by a bookkeeping entry
representing the equivalent of one Share.
2.37 “Retirement”
means, unless otherwise expressly provided in an Award Agreement, a Participant’s termination of employment or service, which is
for any reason other than for Cause, after such Participant’s 65th birthday.
2.38 “Securities
Act” shall mean the U.S. Securities Act of 1933, as amended.
2.39 “Share”
means a share of Common Stock.
2.40 “Stock
Appreciation Right” or “SAR” means a right granted pursuant to Article 7 to receive a payment
equal to the excess of the Fair Market Value of a specified number of Shares on the date the SAR is exercised over the grant price of
the SAR, as set forth in the applicable Award Agreement.
2.41 “Subsidiary”
means any “subsidiary corporation” as defined in Section 424(f) of the Code and any applicable regulations promulgated
thereunder or any other entity of which a majority of the outstanding voting stock or voting power is beneficially owned directly or indirectly
by the Company.
ARTICLE 3.
SHARES SUBJECT TO THE PLAN
3.1 Share
Reserve / Number of Shares. Subject to Article 10, and the following sentence regarding the Evergreen Increase, (i) the
aggregate number of Class A-1 Shares that may initially be issued pursuant to Awards will not exceed 0 Class A-1 Shares, (ii)
the aggregate number of Class A-2 Shares that may initially be issued pursuant to Awards will not exceed 0 Class A-2 Shares,
and (iii) the aggregate number of Class A-3 Shares that may initially be issued pursuant to Awards will not exceed 750,000 Class A-3
Shares (the “Share Reserve”). In addition, the Share Reserve will automatically increase on February 1st of each
calendar year, for a period of not more than ten (10) years, beginning on February 1, 2024 and ending on (and including) February 1,
2033 (each, an “Evergreen Date”) in an amount equal to five percent (5%) of the total number of Shares of Common Stock
outstanding on the January 31st immediately preceding the applicable Evergreen Date (the “Evergreen Increase”).
Notwithstanding the foregoing, the Board may act prior to the Evergreen Date of a given year to provide that there will be no Evergreen
Increase for such year, or that the Evergreen Increase for such year will be a lesser number of Shares than would otherwise occur pursuant
to the preceding sentence.
(a) Share
Reserve Counting. For clarity, the Share Reserve in this Section 3.1 is a limitation on the number of Shares that may
be issued pursuant to the Plan. Shares that are subject to Options, SARs and other awards shall be counted against the maximum limit set
forth in this Section 3.1 as one (1) Share for every one (1) Share subject to such Options, SAR or other award.
During the terms of the Awards, the Company shall keep available at all times the number of shares of Common Stock required to satisfy
such Awards.
(b) Shares
Reissuable Under Plan. To the extent that an Award terminates, expires, lapses for any reason, or is settled in cash, any Shares subject
to the Award shall again be available for the grant of an Award pursuant to the Plan. Any Shares that again become available for the grant
of Awards pursuant to this Section 3.1(b) shall be added back as one (1) Share for each Share being added back from
Options and SARs and two (2) Shares for each Share being added back from an Award other than Options and SARs. Notwithstanding the
provisions of this Section 3.1(b), no Shares may again be optioned, granted or awarded if such action would cause an Incentive
Stock Option to fail to qualify as an incentive stock option under Section 422 of the Code.
(c) Shares
Not Counted Against Share Pool Reserve. To the extent permitted by applicable law and/or any applicable stock exchange rule, Shares
issued in assumption of, or in substitution for, any outstanding awards of any entity acquired in any form of combination by the Company
or any Subsidiary or Affiliate (“Substitute Awards”) shall not be counted against Shares available for grant pursuant
to this Plan. Additionally, to the extent permitted by applicable law and/or any applicable stock exchange rule in the event that
a company acquired by the Company or any company with which the Company or any Subsidiary or Affiliate combines has shares available under
a pre-existing plan approved by shareholders and not adopted in contemplation of such acquisition or combination, the shares available
for grant pursuant to the terms of such pre-existing plan (as appropriately adjusted to reflect the transaction) may be used for grants
of Awards under the Plan and shall not reduce the Shares available for issuance under the Plan, and Shares subject to such Awards (which,
for the avoidance of doubt, exclude Substitute Awards) may again become available for Awards under the Plan as provided under Section 3.1(b) above;
provided, that, Awards using such available shares (or any Shares that again become available for issuance under the Plan under Section 3.1(b) above):
(i) shall not be granted after the date awards or grants could have been made under the terms of the pre-existing plan, absent the
acquisition or combination; (ii) shall be made only to individuals who were not Employees, Directors or Consultants of the Company
or any of its Subsidiaries or Affiliates prior to such acquisition or combination; and (iii) shall otherwise be granted in compliance
with applicable stock exchange listing standards. In addition, the payment of Dividend Equivalents in cash pursuant to any outstanding
Awards shall not be counted against the Shares available for issuance under the Plan.
3.2 Incentive
Stock Option Limit. Subject to the provisions of Article 10, (i) the aggregate maximum number of Class A-1 Shares
that may be issued pursuant to the exercise of Incentive Stock Options is 0 Class A-1 Shares, (ii) the aggregate maximum number
of Class A-2 Shares that may be issued pursuant to the exercise of Incentive Stock Options is 0 Class A-2 Shares, and (iii) the
aggregate maximum number of Class A-3 Shares that may be issued pursuant to the exercise of Incentive Stock Options is 100,000 Class A-3
Shares.
3.3 Limitation
on Compensation of Non-Employee Directors. The maximum number of Shares subject to Awards granted under this Plan or otherwise during
any one year to any Non-Employee Director for service on the Board, taken together with any cash fees paid by the Company to such Non-Employee
Director during such year for service on the Board, will not exceed $250,000 in total value (calculating the value of any such Awards
based on the grant date fair value of such Awards for financial reporting purposes); provided, that (a) the Committee may make exceptions
to this limit, except that the Non-Employee Director receiving such additional compensation may not participate in the decision to award
such compensation and (b) for any calendar year in which a Non-Employee Director (i) first commences service on the Board, (ii) serves
on a special committee of the Board, or (iii) serves as lead director or non-executive chair of the Board, if any, such limit shall
be increased to $300,000; provided, further, that the limit set forth in this Section 3.3 shall be applied without regard
to Awards or other compensation, if any, provided to a Non-Employee Director during any period in which such individual serves or served
as an employee of the Company or any Affiliate or otherwise provides or provided services to the Company or to any Affiliate other than
in the capacity as a Non-Employee Director.
3.4 Shares
Distributed. Any Shares distributed pursuant to an Award may consist, in whole or in part, of authorized and unissued Shares, treasury
Shares or Shares purchased on the open market.
ARTICLE 4.
ELIGIBILITY, PARTICIPATION, MINIMUM VESTING REQUIREMENTS, DIVIDENDS
4.1 Eligibility.
Each Eligible Individual shall be eligible to be granted one or more Awards pursuant to the Plan. An Eligible Individual who is subject
to taxation in the U.S. and who is a service provider to the Company or an Affiliate may be granted Awards under this Plan only if, with
respect to the Affiliate, the Company qualifies as an “eligible issuer of service recipient stock” within the meaning of §1.409A-1(b)(5)(iii)(E) of
the Treasury Regulations promulgated under Section 409A of the Code (or any successor provision).
4.2 Participation.
Subject to the provisions of the Plan, the Committee may, from time to time, select from among all Eligible Individuals, those to whom
Awards shall be granted and shall determine the nature and amount of each Award. No Eligible Individual shall have any right to be granted
an Award pursuant to this Plan and the grant of an Award to an Eligible Individual shall not imply any entitlement to receive future Awards.
4.3 Minimum
Vesting Requirements. Except as otherwise provided in this Section 4.3, no portion of any Award may vest before the first
anniversary of the date of grant. Notwithstanding the immediately preceding sentence: (a) the Company may grant Awards with respect
to up to twenty-five percent (25%) of the number of Shares reserved under Section 3.1 without regard to the minimum vesting
period set forth in this Section 4.3; (b) the minimum vesting period set forth in this Section 4.3 shall
not apply to Substitute Awards, Awards that may be settled only in cash, Shares delivered in lieu of fully-vested cash obligations, or
Awards to Non-Employee Directors that vest on the earlier of the one-year anniversary of the date of grant and the next annual meeting
of shareholders which is at least fifty (50) weeks after the immediately preceding year’s annual meeting; provided, that, the foregoing
requirement does not apply to the Committee’s discretion to provide for, in the terms of the Award Agreement or otherwise, accelerated
vesting or exercisability of any Award and/or waive any restrictions, conditions or limitations applicable to such Award, including in
cases of a Participant’s Retirement, death, Disability or a Change in Control.
4.4 Dividends
and Dividend Equivalents. The Committee may provide that any Award (other than Options and Stock Appreciation Rights) that relates
to shares of Common Stock shall earn dividends or Dividend Equivalents; provided, that, notwithstanding anything in the
Plan to the contrary, the Committee may not provide for the current payment of dividends or Dividend Equivalents with respect to any shares
of Common Stock subject to an outstanding Award (or portion thereof) that has not vested. For any such Award, the Committee may provide
only for the accrual of dividends or Dividend Equivalents that will not be payable to the Participant unless and until, and only to the
extent that, the Award vests. Unless the Board otherwise approves, no dividends or Dividend Equivalents shall be paid on Options or Stock
Appreciation Rights.
ARTICLE 5.
STOCK OPTIONS
5.1 General.
The Committee is authorized to grant Options to Eligible Individuals on the following terms and conditions:
(a) Exercise
Price. The exercise price per Share subject to an Option shall be determined by the Committee and set forth in the Award Agreement;
provided, that, subject to Section 5.2(b) hereof, the per Share exercise price for any Option shall not
be less than 100% of the Fair Market Value of a Share on the date of grant (other than in the case of Substitute Awards).
(b) Time
and Conditions of Exercise. Subject to Section 4.3, the Committee shall determine the time or times at which an Option
may be exercised in whole or in part. The Committee shall also determine the performance or other conditions, if any, that must be satisfied
before all or part of an Option may be exercised.
(c) Payment.
The Committee shall determine the methods by which the exercise price of an Option may be paid, potentially including the following methods:
(i) cash or check, (ii) surrender of Shares (including withholding of Shares otherwise deliverable upon exercise of the Award)
which have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which the Award shall
be exercised, (iii) promissory note bearing interest at no less than such rate as shall then preclude the imputation of interest
under the Code, (iv) other property acceptable to the Committee (including through the delivery of a notice that the Participant
has placed a market sell order with a broker with respect to Shares then issuable upon exercise of the Option, and that the broker has
been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price;
provided that payment of such proceeds is then made to the Company upon settlement of such sale), (v) by a “net exercise”
arrangement pursuant to which the number of Shares issuable upon exercise of the Option shall be reduced by the largest whole number of
Shares having an aggregate fair market value that does not exceed the aggregate exercise price (plus withholding taxes, if applicable)
and any remaining balance of the aggregate exercise price (and/or applicable withholding taxes) not satisfied by such reduction in the
number of whole Shares to be issued shall be paid by Participant in cash or other form of payment approved by the Committee, or (vi) any
combination of the foregoing methods of payment. The Award Agreement will specify the methods of paying the exercise price available to
Participants. The Committee shall also determine the methods by which Shares shall be delivered or deemed to be delivered to Participants.
Notwithstanding any other provision of the Plan to the contrary, no Participant who is a Director or an “executive officer”
of the Company within the meaning of Section 13(k) of the Exchange Act shall be permitted to pay the exercise price of an Option,
or continue any extension of credit with respect to the exercise price of an Option, with a loan from the Company or a loan arranged by
the Company in violation of Section 13(k) of the Exchange Act.
(d) Expiration.
Subject to Section 5.1(b) and Section 5.2(b) hereof and any extension approved by the Committee for
a Participant that has been employed by the Company for five (5) or more than five (5) years, an Option may not be exercised
to any extent by anyone after the first to occur of the following events:
(i) On
the earlier of the date three (3) months after the Participant’s Continuous Service terminates or service or the expiration
of the term of the Option as set forth in the Award Agreement, except as otherwise provided in clauses (ii) and (iii) below;
(ii) On
the earlier of the date one (1) year after the date of the Participant’s Continuous Service terminates on account of death
or Disability or the expiration of the term of such Option as set forth in the Award Agreement. Upon the Participant’s Disability
or death, any Options exercisable at the Participant’s Disability or death may be exercised by the Participant’s legal representative
or representatives, by the person or persons entitled to do so pursuant to the Participant’s last will and testament, or, if the
Participant fails to make testamentary disposition of such Option or dies intestate, by the person or persons entitled to receive the
Option pursuant to the applicable laws of descent and distribution; and
(iii) Immediately
upon the date of the Participant’s Continuous Service terminates for Cause.
(e) Transfer
Restrictions. Unless otherwise approved in writing by the Committee, no Shares acquired upon exercise of any Option by any officer
of the Company may be sold, assigned, pledged, encumbered or otherwise transferred until at least six (6) months have elapsed from
(but excluding) the date that such Option was exercised.
(f) Evidence
of Grant. All Options shall be evidenced by an Award Agreement between the Company and the Participant. The Award Agreement shall
include such additional provisions as may be specified by the Committee.
5.2 Incentive
Stock Options. Incentive Stock Options shall be granted only to Employees of the Company or of any Subsidiary that qualifies as a
“subsidiary corporation” under Section 424(f) of the Code and any applicable regulations promulgated thereunder,
and the terms of any Incentive Stock Options granted pursuant to the Plan, in addition to the requirements of Section 5.1
hereof, must comply with the provisions of this Section 5.2.
(a) Dollar
Limitation. The aggregate Fair Market Value (determined as of the time the Option is granted) of all Shares with respect to which
Incentive Stock Options are first exercisable by a Participant in any calendar year may not exceed $100,000 or such other limitation as
imposed by Section 422(d) of the Code, or any successor provision. To the extent that Incentive Stock Options are first exercisable
by a Participant in excess of such limitation, the excess shall be considered Non-Qualified Stock Options.
(b) Ten
Percent Owners. An Incentive Stock Option may be granted to any individual who, at the date of grant, owns stock possessing more than
ten percent of the total combined voting power of all classes of Shares of the Company only if such Option is granted at an exercise price
that is not less than 110% of Fair Market Value on the date of grant and the Option is exercisable for no more than five (5) years
from the date of grant.
(c) Notice
of Disposition. The Participant shall give the Company prompt notice of any disposition of Shares acquired by exercise of an Incentive
Stock Option within (i) two (2) years from the date of grant of such Incentive Stock Option or (ii) one (1) year after
the transfer of such Shares to the Participant.
(d) Right
to Exercise. During a Participant’s lifetime, an Incentive Stock Option may be exercised only by the Participant.
(e) Failure
to Meet Requirements. Any Option (or portion thereof) purported to be an Incentive Stock Option, which, for any reason, fails to meet
the requirements of Section 422 of the Code shall be considered a Non-Qualified Stock Option.
ARTICLE 6.
RESTRICTED STOCK AWARDS
6.1 Grant
of Restricted Stock. The Committee is authorized to make Awards of Restricted Stock to any Eligible Individual selected by the Committee
in such amounts and subject to such terms and conditions as determined by the Committee. All Awards of Restricted Stock shall be evidenced
by an Award Agreement.
6.2 Purchase
Price. At the time of the grant of an Award of Restricted Stock, the Committee shall determine the price, if any, to be paid by the
Participant for each Share subject to the Award of Restricted Stock. To the extent required by applicable law, the price to be paid by
the Participant for each Share subject to the Award of Restricted Stock shall not be less than the par value of a Share (or such higher
amount required by applicable law). The purchase price of Shares acquired pursuant to the Award of Restricted Stock shall be paid either:
(i) in cash at the time of purchase; or (ii) in any other form of legal consideration that may be acceptable to the Committee
in its sole discretion and in compliance with applicable law.
6.3 Issuance
and Restrictions. Restricted Stock shall be subject to such restrictions on transferability and other restrictions as the Committee
may impose (including, without limitation, limitations on the right to vote Restricted Stock). These restrictions may lapse separately
or in combination at such times, pursuant to such circumstances, in such installments, or otherwise, as the Committee determines at the
time of the grant of the Award or thereafter. Further, notwithstanding any provision herein to the contrary, no dividends will be paid
on Restricted Stock that has not vested; however, the Committee, in its discretion, may authorize the accrual of Dividend Equivalents
on Restricted Stock.
6.4 Forfeiture.
Subject to Section 4.3, except as otherwise determined by the Committee at the time of the grant of the Award or thereafter,
upon termination of employment or service during the applicable restriction period, Restricted Stock that is at that time subject to restrictions
shall be forfeited; provided, however, that the Committee may (a) provide in any Restricted Stock Award Agreement that restrictions
or forfeiture conditions relating to Restricted Stock will be waived in whole or in part in the event of terminations resulting from specified
causes, and (b) in other cases waive in whole or in part restrictions or forfeiture conditions relating to Restricted Stock.
6.5 Certificates
for Restricted Stock. Restricted Stock granted pursuant to the Plan may be evidenced in such manner as the Committee shall determine.
If certificates representing shares of Restricted Stock are registered in the name of the Participant, certificates must bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock, and the Company may, at its discretion,
retain physical possession of the certificate until such time as all applicable restrictions lapse.
ARTICLE 7.
STOCK APPRECIATION RIGHTS
7.1 Grant
of Stock Appreciation Rights.
(a) A
Stock Appreciation Right may be granted to any Eligible Individual selected by the Committee. A Stock Appreciation Right shall be subject
to such terms and conditions not inconsistent with the Plan as the Committee shall impose and shall be evidenced by an Award Agreement,
provided that the term of any Stock Appreciation Right shall not exceed ten (10) years.
(b) A
Stock Appreciation Right shall entitle the Participant (or other person entitled to exercise the Stock Appreciation Right pursuant to
the Plan) to exercise all or a specified portion of the Stock Appreciation Right (to the extent then exercisable pursuant to its terms)
and to receive from the Company an amount equal to the product of (i) the excess of (A) the Fair Market Value of the Shares
on the date the Stock Appreciation Right is exercised over (B) the grant price of the Stock Appreciation Right and (ii) the
number of Shares with respect to which the Stock Appreciation Right is exercised, subject to any limitations the Committee may impose.
7.2 Grant
Price. The grant price per Share subject to a Stock Appreciation Right shall be determined by the Committee and set forth in the Award
Agreement; provided that, the per Share grant price for any Stock Appreciation Right shall not be less than 100% of the Fair Market Value
of a Share on the date of grant (other than in the case of Substitute Awards).
7.3 Payment
and Limitations on Exercise.
(a) Subject
to Section 7.3(b) hereof, payment of the amounts determined under Section 7.1(b) hereof shall be in
cash, in Shares (based on its Fair Market Value as of the date the Stock Appreciation Right is exercised) or a combination of both, as
determined by the Committee.
(b) To
the extent any payment under Section 7.1(b) hereof is effected in Shares, it shall be made subject to satisfaction of
all applicable provisions of Section 5.1(c) pertaining to Options.
ARTICLE 8.
OTHER TYPES OF AWARDS
8.1 Performance
Share Awards. Any Eligible Individual selected by the Committee may be granted one or more Awards of Performance Shares which shall
be denominated in a number of Shares and which may be linked to any one or more of the Performance Criteria or other specific performance
criteria determined appropriate by the Committee, in each case on a specified date or dates or over any period or periods determined by
the Committee. In making such determinations, the Committee shall consider (among such other factors as it deems relevant in light of
the specific type of award) the contributions, responsibilities and other compensation of the particular Participant. The Committee may
authorize Dividend Equivalents to be accrued with respect to outstanding Performance Share Awards. Performance Share Awards shall be subject
to applicable withholding taxes (as further set forth in Section 14.3).
8.2 Performance
Stock Units. Any Eligible Individual selected by the Committee may be granted one or more Performance Stock Unit awards which shall
be denominated in unit equivalents of Shares and/or units of value including dollar value of Shares and which may be linked to any one
or more of the Performance Criteria or other specific performance criteria determined appropriate by the Committee, in each case on a
specified date or dates or over any period or periods determined by the Committee. In making such determinations, the Committee shall
consider (among such other factors as it deems relevant in light of the specific type of award) the contributions, responsibilities and
other compensation of the particular Participant. On the settlement date, the Company shall, subject to Section 9.5(a) and
satisfaction of applicable withholding taxes (as further set forth in Section 14.3), transfer to the Participant one unrestricted,
fully transferable Share for each Performance Stock Unit scheduled to be paid out on such date and not previously forfeited. Alternatively,
settlement of a Performance Stock Unit may be made in cash (in an amount reflecting the Fair Market Value of Shares that would have been
issued) or any combination of cash and Shares, as determined by the Committee, in its sole discretion, in either case, less applicable
withholding taxes (as further set forth in Section 14.3). The Committee may authorize Dividend Equivalents to be accrued with
respect to outstanding Performance Stock Units.
8.3 Restricted
Stock Units. The Committee is authorized to make Awards of Restricted Stock Units to any Eligible Individual selected by the Committee
in such amounts and subject to such terms and conditions as determined by the Committee. At the time of grant, the Committee shall specify
the date or dates on which the Restricted Stock Units shall become fully vested and nonforfeitable, and may specify such conditions to
vesting as it deems appropriate. The vesting conditions may be based on the passage of time or the attainment of performance-based conditions.
On the settlement date, the Company shall, subject to Section 9.5(a) hereof and satisfaction of applicable withholding
taxes (as further set forth in Section 14.3), transfer to the Participant one unrestricted, fully transferable Share for each
Restricted Stock Unit scheduled to be paid out on such date and not previously forfeited. Alternatively, settlement of a Restricted Stock
Unit may be made in cash (in an amount reflecting the Fair Market Value of Shares that would have been issued) or any combination of cash
and Shares, as determined by the Committee, in its sole discretion, in either case, less applicable withholding taxes (as further set
forth in Section 14.3). The Committee may authorize Dividend Equivalents to be accrued with respect to outstanding Restricted
Stock Units.
8.4 Other
Awards. The Committee is authorized under the Plan to make any other Award to an Eligible Individual that is not inconsistent with
the provisions of the Plan and that by its terms involves or might involve the issuance of (i) Shares, (ii) a right with a Share-related
exercise or conversion privilege related to the passage of time, the occurrence of one or more events, or the satisfaction of performance
criteria or other conditions, or (iii) any other right with the value derived from the value of the Shares. The Committee may establish
one or more separate programs under the Plan for the purpose of issuing particular forms of Awards to one or more classes of Participants
on such terms and conditions as determined by the Committee from time to time.
8.5 Vesting.
Subject to Section 4.3, the vesting conditions applicable to an Award granted pursuant to Article 8 shall be set
by the Committee in its discretion.
8.6 Term.
Except as otherwise provided herein, the term of any Award of Performance Shares, Performance Stock Units, Restricted Stock Units and
any other Award granted pursuant to this Article 8 shall be set by the Committee in its discretion.
8.7 Exercise
or Purchase Price. The Committee may establish the exercise or purchase price, if any, of any Award of Performance Shares, Performance
Stock Units, Restricted Stock Units and any other Award granted pursuant to this Article 8; provided, however, that such price
shall not be less than the par value of a Share on the date of grant, unless otherwise permitted by applicable state law.
8.8 Exercise
upon Termination of Employment or Service. An Award of Performance Shares, Performance Stock Units, Restricted Stock Units and any
other Awards granted pursuant to this Article 8 shall only be exercisable or payable while the Participant is an Employee,
Consultant or Director, as applicable; provided, however, that the Committee in its sole and absolute discretion may provide that an Award
of Performance Shares, Performance Stock Units, Restricted Stock Units or any other Award granted pursuant to this Article 8
may be exercised or paid subsequent to a termination of employment or service, as applicable, or following a Change in Control of the
Company, or because of the Participant’s Retirement, death or Disability, or otherwise.
8.9 Form of
Payment. Payments with respect to any Awards granted under this Article 8 shall be made in cash, in Shares, or a note or other
form of payment specified in Section 5.1(c) hereof, or a combination thereof, as determined by the Committee.
8.10 Award
Agreement. All Awards under this Article 8 shall be subject to such additional terms and conditions as determined by the
Committee and shall be evidenced by an Award Agreement.
8.11 Timing
of Settlement. At the time of grant, the Committee shall specify the settlement date applicable to an Award of Performance Shares,
Performance Stock Units, Restricted Stock Units or any other Award granted pursuant to this Article 8, which shall be no earlier
than the vesting date(s) applicable to the relevant Award, or it may be deferred to any later date to the extent and under the terms
determined by the Committee, subject to compliance with Section 409A of the Code. Until an Award granted pursuant to this Article 8
has been settled, the number of Shares subject to the Award shall be subject to adjustment pursuant to Article 10 hereof.
ARTICLE 9.
PROVISIONS APPLICABLE TO AWARDS
9.1 Stand-Alone
and Tandem Awards. Awards granted pursuant to the Plan may, in the discretion of the Committee, be granted either alone, in addition
to, or in tandem with, any other Award granted pursuant to the Plan. Awards granted in addition to or in tandem with other Awards may
be granted either at the same time as or at a different time from the grant of such other Awards.
9.2 Award
Agreement. Awards under the Plan shall be evidenced by Award Agreements that set forth the terms, conditions and limitations for each
Award which may include the term of an Award, additional provisions applicable in the event the Participant’s employment or service
terminates, and the Company’s authority to unilaterally or bilaterally amend, modify, suspend, cancel or rescind an Award.
9.3 Limits
on Transfer. No right or interest of a Participant in any Award may be pledged, encumbered, or hypothecated to or in favor of any
party other than the Company or a Subsidiary or Affiliate, or shall be subject to any lien, obligation, or liability of such Participant
to any other party other than the Company or a Subsidiary or Affiliate. Except as otherwise provided by the Committee, no Award shall
be assigned, transferred, or otherwise disposed of by a Participant other than by will or the laws of descent and distribution or pursuant
to beneficiary designation procedures approved from time to time by the Committee (or the Board in the case of Awards granted to Non-Employee
Directors). The Committee by express provision in the Award or an amendment thereto may permit an Award (other than an Incentive Stock
Option) to be transferred to, exercised by and paid to certain persons or entities related to the Participant, including, but not limited
to, members of the Participant’s family, charitable institutions, or trusts or other entities whose beneficiaries or beneficial
owners are members of the Participant’s family and/or charitable institutions, or to such other persons or entities as may be expressly
approved by the Committee, pursuant to such conditions and procedures as the Committee may establish.
Any permitted transfer shall be subject to the
condition that the Committee receive evidence satisfactory to it that the transfer is being made for estate and/or tax planning purposes
(or to a “blind trust” in connection with the Participant’s termination of employment or service with the Company or
a Subsidiary or Affiliate to assume a position with a governmental, charitable, educational or similar non-profit institution) and on
a basis consistent with the Company’s lawful issue of securities. Notwithstanding anything contrary in this Section 9.3
or Section 9.4 below, no Award may be transferred for value or consideration.
9.4 Beneficiaries.
Notwithstanding Section 9.3 hereof, a Participant may, if permitted by the Committee, designate a beneficiary to exercise
the rights of the Participant and to receive any distribution with respect to any Award upon the Participant’s death. A beneficiary,
legal guardian, legal representative, or other person claiming any rights pursuant to the Plan is subject to all terms and conditions
of the Plan and any Award Agreement applicable to the Participant, except to the extent the Plan and Award Agreement otherwise provide,
and to any additional restrictions deemed necessary or appropriate by the Committee. If the Participant is married and resides in a community
property state, a designation of a person other than the Participant’s spouse as his or her beneficiary with respect to more than
50% of the Participant’s interest in the Award shall not be effective without the prior written consent of the Participant’s
spouse. If no beneficiary has been designated or survives the Participant, payment shall be made to either the person’s estate or
legal representative or the person entitled thereto pursuant to the Participant’s will or the laws of descent and distribution (or
equivalent laws outside the U.S.). Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any
time provided the change or revocation is filed with the Committee.
9.5 Stock
Certificates; Book Entry Procedures.
(a) Notwithstanding
anything herein to the contrary, the Company shall not be required to issue or deliver any certificates evidencing Shares pursuant to
the exercise of any Award, unless and until the Board has determined, with advice of counsel, that the issuance and delivery of such certificates
is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any exchange
on which the Shares are listed or traded. All certificates evidencing Shares delivered pursuant to the Plan are subject to any stop-transfer
orders and other restrictions as the Committee deems necessary or advisable to comply with federal, state or local securities or other
laws, including laws of jurisdictions outside of the United States, and the rules and regulations of any national securities exchange
or automated quotation system on which the Shares are listed, quoted, or traded. The Committee may place legends on any certificate evidencing
Shares to reference restrictions applicable to the Shares. In addition to the terms and conditions provided herein, the Board may require
that a Participant make such reasonable covenants, agreements, and representations as the Board, in its discretion, deems advisable in
order to comply with any such laws, regulations, or requirements. The Committee shall have the right to require any Participant to comply
with any timing or other restrictions with respect to the settlement or exercise of any Award, including a window-period limitation, as
may be imposed in the discretion of the Committee.
(b) Notwithstanding
any other provision of the Plan, unless otherwise determined by the Committee or required by any applicable law, rule or regulation,
the Company shall not deliver to any Participant certificates evidencing Shares issued in connection with any Award and instead such Shares
shall be recorded in the books of the Company (or, as applicable, its transfer agent or stock plan administrator).
9.6 Accelerated
Vesting and Deferral Limitations. The Committee shall not have the discretionary authority to accelerate or delay issuance of Shares
or payment of cash under an Award that constitutes a deferral of compensation within the meaning of Section 409A of the Code, except
to the extent that such acceleration or delay may, in the discretion of the Committee, be effected in a manner that will not cause any
person to incur taxes, interest or penalties under Section 409A of the Code.
9.7 Paperless
Administration. In the event that the Company establishes, for itself or using the services of a third party, an automated system
for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then
the paperless documentation, granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.
ARTICLE 10.
CHANGES IN CAPITAL STRUCTURE
10.1 Adjustments.
(a) In
the event of any stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than
normal cash dividends) of Company assets to shareholders, or any other change affecting the Shares or the price of the Shares, the Committee
shall make such adjustments, if any, to prevent dilution or enlargement of rights granted to Participant’s under this Plan as the
Committee in its discretion may deem appropriate to reflect such change with respect to (a) the aggregate number and kind of shares
that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Section 3.1 hereof); (b) the
number and kind of Shares subject to outstanding Awards and the terms and conditions of any outstanding Awards (including, without limitation,
any applicable performance targets or criteria with respect thereto); and (c) the grant or exercise price per Share for any outstanding
Awards under the Plan.
(b) In
the event of any transaction or event described in Section 10.1(a) hereof or any unusual or nonrecurring transactions
or events affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate, or of changes
in applicable laws, regulations or accounting principles, the Committee, in its sole and absolute discretion, and on such terms and conditions
as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event and
either automatically or upon the Participant’s request, is hereby authorized to take any one or more of the following actions whenever
the Committee determines that such action is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan or with respect to any Award under the Plan, to facilitate such transactions or events or
to give effect to such changes in laws, regulations or principles:
(i) To
provide for either (A) termination of any such Award in exchange for an amount of cash, if any, equal to the amount that would have
been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as
of the date of the occurrence of the transaction or event described in this Section 10.1 the Committee determines in good
faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such
Award may be terminated by the Company without payment) or (B) the replacement of such Award with other rights or property selected
by the Committee in its sole discretion;
(ii) To
provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted
for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices;
(iii) To
make adjustments in the number and type of Shares (or other securities or property) subject to outstanding Awards, and in the number and
kind of outstanding Restricted Stock and/or in the terms and conditions of (including the grant or exercise price), and the criteria included
in, outstanding options, rights and awards;
(iv) To
provide that such Award shall be exercisable or payable or fully vested with respect to all Shares covered thereby, notwithstanding anything
to the contrary in the Plan or the applicable Award Agreement; and
(v) To
provide that the Award cannot vest, be exercised or become payable after such event.
10.2 Change
in Control. Notwithstanding Section 10.1 hereof, if a Change in Control occurs, the Committee or the Board may, in its
sole discretion, provide for any of the following to be effective upon the consummation of the event (or effective immediately prior to
the consummation of the event, provided that the consummation of the event subsequently occurs), and no action taken under this Section 10.2
shall be deemed to impair or otherwise adversely alter or impair the rights of any holder of an Award or beneficiary thereof:
(i) either
(A) termination of any such Award, whether or not vested, in exchange for an amount of cash and/or other property, if any, equal
to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s vested rights (and,
for the avoidance of doubt, if, as of the date of the occurrence of the transaction or event described in this Section 10.1,
the Committee or the Board determines in good faith that no amount would have been attained upon the exercise of such Award or realization
of the Participant’s vested rights, then such Award may be terminated by the Company without any payment) or (B) the replacement
of such Award with other rights or property selected by the Committee or the Board, in its sole discretion;
(ii) that
such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar
options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices;
(iii) that
subject to Article 9 and any other applicable provision herein, the Award shall be exercisable or payable or fully vested
with respect to all Shares covered thereby, notwithstanding anything to the contrary in the applicable Award Agreement; or
(iv) that
the Award cannot vest, be exercised or become payable after a date certain in the future, which may be the effective date of such event.
10.3 Correction
of Defects, Omissions and Inconsistencies. The Committee may correct any defect, supply any omission or reconcile any inconsistency
in the Plan or in any Award or Award Agreement in the manner and to the extent it shall deem desirable to implement or maintain the effectiveness
of the Plan.
10.4 No
Other Rights. Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation
of Shares of any class, the payment of any dividend, any increase or decrease in the number of Shares of any class or any dissolution,
liquidation, merger, or consolidation of the Company or any other corporation. Except as expressly provided in the Plan or pursuant to
action of the Committee under the Plan, no issuance by the Company of Shares of any class, or securities convertible into Shares of any
class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares subject to an Award or the
grant or the exercise price of any Award.
ARTICLE 11.
ADMINISTRATION
11.1 Committee.
Except as specified herein or as otherwise determined by the Board, the Plan shall be administered by a Committee consisting of two or
more members of the Board. In the event the Company becomes a publicly-reporting entity under the Securities and Exchange Act of 1934,
as amended and has a security trading on a national securities exchange, the Committee shall consist solely of two or more members of
the Board each of whom is an Independent Director, unless otherwise determined by the Board; provided further, that, any action
taken by the Committee shall be valid and effective, whether or not members of the Committee at the time of such action are later determined
not to have satisfied the requirements for membership set forth in this Section 11.1 or otherwise provided in any charter
of the Committee. Notwithstanding the foregoing: (a) the full Board, acting by a majority of its members in office, shall conduct
the general administration of the Plan with respect to all Awards granted to Non-Employee Directors and for purposes of such Awards the
term “Committee” as used in this Plan shall be deemed to refer to the Board and (b) the Committee may delegate its authority
hereunder to the extent permitted by Section 11.5 hereof. In its sole discretion, the Board may at any time and from time
to time exercise any and all rights and duties of the Committee under the Plan except with respect to matters which under Rule 16b-3
under the Exchange Act, or any regulations or rules issued thereunder, are required to be determined in the sole discretion of the
Committee. Except as may otherwise be provided in any charter of the Committee, appointment of Committee members shall be effective upon
acceptance of appointment; Committee members may resign at any time by delivering written notice to the Board; and vacancies in the Committee
may only be filled by the Board.
11.2 Action
by the Committee. Unless otherwise established by the Board or in any charter of the Committee, a majority of the Committee shall
constitute a quorum and the acts of a majority of the members present at any meeting at which a quorum is present, and acts approved in
writing by a majority of the Committee in lieu of a meeting, shall be deemed the acts of the Committee. Each member of the Committee is
entitled to, in good faith, rely or act upon any report or other information furnished to that member by any officer or other employee
of the Company or any Subsidiary or Affiliate, the Company’s independent registered public accounting firm, or any executive compensation
consultant or other professional retained by the Company to assist in the administration of the Plan.
11.3 Authority
of Committee. Subject to any specific designation in the Plan or as otherwise determined by the Board (which, among other things,
specifically retains the right to grant Awards under the Plan), the Committee has the exclusive power, authority and discretion to:
(a) Designate
Participants to receive Awards;
(b) Determine
the type or types of Awards to be granted to each Participant;
(c) Determine
the number of Awards to be granted and the number of Shares to which an Award will relate;
(d) Determine
the terms and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price, grant price, or
purchase price, any restrictions or limitations on the Award, any schedule for lapse of forfeiture restrictions or restrictions on the
exercisability of an Award, and accelerations or waivers thereof, any provisions related to non-competition and recapture of gain on an
Award, based in each case on such considerations as the Committee in its sole discretion determines;
(e) Determine
whether, to what extent, and pursuant to what circumstances an Award may be settled in, or the exercise price of an Award may be paid
in, cash, Shares, other Awards, or other property, or an Award may be canceled, forfeited, or surrendered;
(f) Prescribe
the form of each Award Agreement, which need not be identical for each Participant;
(g) Decide
all other matters that must be determined in connection with an Award;
(h) Establish,
adopt, or revise any rules and regulations as it may deem necessary or advisable to administer the Plan;
(i) To
suspend or terminate the Plan at any time provided that such suspension or termination does not materially impair rights and obligations
under any outstanding Award without written consent of the affected Participant;
(j) Interpret
the terms of, and any matter arising pursuant to, the Plan or any Award Agreement; and
(k) Make
all other decisions and determinations that may be required pursuant to the Plan or as the Committee deems necessary or advisable to administer
the Plan.
11.4 Decisions
Binding. The Committee’s interpretation of the Plan, any Awards granted pursuant to the Plan, any Award Agreement and all decisions
and determinations by the Committee with respect to the Plan are final, binding, and conclusive on all parties.
11.5 Delegation
of Authority. To the extent permitted by applicable law, including, without limitation, the Minnesota Business Corporation Act, the
Committee may from time to time (i) delegate to a committee of one or more members of the Board or one or more officers of the Company
the authority, subject to such terms as the Committee shall determine, to perform such functions, including the authority to grant or
amend Awards to Participants, as the Committee may determine, and (ii) delegate to any person or subcommittee (who may, but need
not, be members of the Committee) such Plan-related administrative authority and responsibilities as it deems appropriate; provided,
however, the Committee may not delegate its authority with respect to non-ministerial actions relating to Awards to Employees who
are subject to the reporting requirements of Section 16(a) of the Exchange Act or officers of the Company (or Directors) to
whom authority to grant or amend Awards has been delegated hereunder. For the avoidance of doubt, provided it meets the limitation in
the preceding sentence, this delegation shall include the right to modify Awards as necessary to accommodate changes in the laws or regulations.
Any delegation hereunder shall be subject to the restrictions and limits that the Committee specifies at the time of such delegation,
and the Committee may at any time rescind the authority so delegated or appoint a new delegatee. At all times, the delegatee appointed
under this Section 11.5 shall serve in such capacity at the pleasure of the Committee.
ARTICLE 12.
PLAN EXPIRATION DATE
The Plan will continue in effect until it is terminated
by the Board pursuant to Section 13.1 hereof, except that no Award may be granted under the Plan from and after the tenth
(10th) anniversary of the Effective Date. Any Awards that are outstanding on the date the Plan terminates shall remain in force according
to the terms of the Plan and the applicable Award Agreement.
ARTICLE 13.
AMENDMENT, MODIFICATION, AND TERMINATION
13.1 Amendment,
Modification, and Termination. Subject to Section 14.14 hereof, with the approval of the Board, at any time and from time
to time, the Committee may terminate, amend or modify the Plan; provided, however, that (a) to the extent necessary
and desirable to comply with any applicable law, regulation, or stock exchange rule, the Company shall obtain shareholder approval of
any Plan amendment in such a manner and to such a degree as required, and (b) shareholder approval shall be required for any amendment
to the Plan that (i) increases the number of shares available under the Plan (other than any adjustment as provided by Article 10),
or (ii) permits the Committee to extend the exercise period for an Option beyond ten years from the date of grant. Notwithstanding
any provision in this Plan to the contrary, absent approval of the shareholders of the Company, no Option or SAR may be amended to reduce
the per share exercise price of the shares subject to such Option or SAR below the per share exercise price as of the date the Option
or SAR is granted and, except as permitted by Article 10, (a) no Option or SAR may be granted in exchange for, or in
connection with, the cancellation, surrender or substitution of an Option or SAR having a higher per share exercise price and (b) no
Option or SAR may be cancelled in exchange for, or in connection with, the payment of a cash amount or another Award at a time when the
Option or SAR has a per share exercise price that is higher than the Fair Market Value of a Share.
13.2 Awards
Previously Granted. Except with respect to amendments made or other actions taken pursuant to Section 14.14 hereof or
any amendment or other action with respect to an outstanding Award that may be required or desirable to comply with applicable law, as
determined in the sole discretion of the Committee, no termination, amendment, or modification of the Plan shall adversely affect in any
material way any Award previously granted pursuant to the Plan without the prior written consent of the Participant; provided, however,
that an amendment or modification that may cause an Incentive Stock Option to become a Non-Qualified Stock Option shall not be treated
as adversely affecting the rights of the Participant.
ARTICLE 14.
GENERAL PROVISIONS
14.1 No
Rights to Awards. No Eligible Individual or other person shall have any claim to be granted any Award pursuant to the Plan, and neither
the Company nor the Committee is obligated to treat Eligible Individuals, Participants or any other persons uniformly.
14.2 No
Shareholders Rights. Except as otherwise provided herein, a Participant shall have none of the rights of a shareholder with respect
to Shares covered by any Award, including the right to vote or receive dividends, until the Participant becomes the record owner of such
Shares, notwithstanding the exercise of an Option or other Award.
14.3 Withholding.
The Company or any Subsidiary or Affiliate, as appropriate, shall have the authority and the right to deduct or withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy U.S. federal, state and local taxes and taxes imposed by jurisdictions
outside of the United States (including income tax, social insurance contributions, payment on account and any other taxes that may be
due) that the Company or a Subsidiary or Affiliate determines are required to be withheld with respect to any taxable event concerning
a Participant arising as a result of this Plan or to take such other action as may be necessary in the opinion of the Company or a Subsidiary
or Affiliate, as appropriate, to satisfy withholding obligations for the payment of taxes. The Committee may in its discretion and in
satisfaction of the foregoing requirement direct the Company to withhold, or allow a Participant to elect to have the Company withhold,
Shares otherwise issuable under an Award (or allow the return of Shares) having a Fair Market Value equal to the sums required to be withheld;
the number of Shares so withheld may be determined using rates of up to, but not exceeding, the maximum federal, state, local and/or foreign
statutory tax rates applicable in a particular jurisdiction on the date that the amount of tax to be withheld is to be determined. No
Shares shall be delivered hereunder to any Participant or other person until the Participant or such other person has made arrangements
acceptable to the Committee for the satisfaction of these tax obligations with respect to any taxable event concerning the Participant
or such other person arising as a result of Awards made under this Plan.
14.4 No
Right to Employment or Services. Nothing in the Plan or any Award Agreement shall interfere with or limit in any way the right of
the Company or any Subsidiary or Affiliate to terminate any Participant’s employment or services at any time, nor confer upon any
Participant any right to continue in the employ or service of the Company or any Subsidiary or Affiliate.
14.5 Unfunded
Status of Awards. The Plan is intended to be an “unfunded” plan for incentive compensation. With respect to any payments
not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give the Participant any
rights that are greater than those of a general creditor of the Company or any Subsidiary or Affiliate.
14.6 Indemnification.
To the extent allowable pursuant to applicable law, each member of the Committee or of the Board shall be indemnified and held harmless
by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection
with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved
by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction
of judgment in such action, suit, or proceeding against him or her; provided he or she gives the Company an opportunity, at its own expense,
to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such persons may be entitled pursuant to the Company’s Certificate
of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
14.7 Relationship
to other Benefits. No payment pursuant to the Plan shall be taken into account in determining any benefits pursuant to any pension,
retirement, savings, profit sharing, group insurance, termination programs and/or indemnities or severance payments, welfare or other
benefit plan of the Company or any Subsidiary or Affiliate except to the extent otherwise expressly provided in writing in such other
plan or an agreement thereunder.
14.8 Expenses.
The expenses of administering the Plan shall be borne by the Company and/or its Subsidiaries and/or Affiliates.
14.9 Titles
and Headings. The titles and headings of the Sections in the Plan are for convenience of reference only and, in the event of any conflict,
the text of the Plan, rather than such titles or headings, shall control.
14.10 Fractional
Shares. No fractional Shares shall be issued and the Committee shall determine, in its discretion, whether cash shall be given in
lieu of fractional shares or whether such fractional shares shall be eliminated by rounding up or down as appropriate.
14.11 Limitations
Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan, the Plan, and any Award granted or awarded
to any Participant who is then subject to Section 16 of the Exchange Act, shall be subject to any additional limitations set forth
in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 under the
Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by applicable law, the Plan and
Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
14.12 Government
and Other Regulations. The obligation of the Company to make payment of awards in Shares or otherwise shall be subject to all applicable
laws, rules, and regulations of the United States and jurisdictions outside the United States, and to such approvals by government agencies,
including government agencies in jurisdictions outside of the United States, in each case as may be required or as the Company deems necessary
or advisable. Without limiting the foregoing, the Company shall have no obligation to issue or deliver evidence of title for Shares subject
to Awards granted hereunder prior to: (a) obtaining any approvals from governmental agencies that the Company determines are necessary
or advisable, and (b) completion of any registration or other qualification with respect to the Shares under any applicable law in
the United States or in a jurisdiction outside of the United States or ruling of any governmental body that the Company determines to
be necessary or advisable or at a time when any such registration or qualification is not current, has been suspended or otherwise has
ceased to be effective. The inability or impracticability of the Company to obtain or maintain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained and shall constitute circumstances in which the Committee may determine to amend or cancel Awards pertaining
to such Shares, with or without consideration to the affected Participant. The Company shall be under no obligation to register pursuant
to the Securities Act, as amended, any of the Shares paid pursuant to the Plan. If the Shares paid pursuant to the Plan may in certain
circumstances be exempt from registration pursuant to the Securities Act, as amended, the Company may restrict the transfer of such Shares
in such manner as it deems advisable to ensure the availability of any such exemption.
14.13 Governing
Law. The internal law, and not the law of conflicts, of the State of Minnesota shall govern all questions concerning the validity,
construction and effect of the Plan and all Award Agreements, and any rules and regulations relating to the Plan and any Award Agreements.
14.14 Section 409A.
Except as provided in Section 14.15 hereof, to the extent that the Committee determines that any Award granted under the Plan
is subject to Section 409A of the Code, the Award Agreement evidencing such Award shall incorporate the terms and conditions required
by Section 409A of the Code. To the extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Section 409A
of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any
such regulations or other guidance that may be issued after the date the Plan became effective. Notwithstanding any provision of the Plan
to the contrary, in the event that following the date an Award is granted the Committee determines that the Award may be subject to Section 409A
of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued after the date
the Plan became effective), the Committee may adopt such amendments to the Plan and the applicable Award Agreement or adopt other policies
and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, including amendments
or actions that would result in a reduction to the benefits payable under an Award, in each case, without the consent of the Participant,
that the Committee determines are necessary or appropriate to (a) exempt the Award from Section 409A of the Code and/or preserve
the intended tax treatment of the benefits provided with respect to the Award, or (b) comply with the requirements of Section 409A
of the Code and related Department of Treasury guidance and thereby avoid the application of any penalty taxes under such Section or
mitigate any additional tax, interest and/or penalties or other adverse tax consequences that may apply under Section 409A of the
Code if compliance is not practical. Notwithstanding any contrary provision in this Plan or Award Agreement, any payment(s) of “nonqualified
deferred compensation” (within the meaning of Section 409A of the Code) that are otherwise required to be made under this Plan
to a “specified employee” (as defined under Section 409A of the Code) as a result of such employee’s separation
from service (other than a payment that is not subject to Section 409A of the Code) shall be delayed for the first six (6) months
following such separation from service (or, if earlier, until the date of death of the specified employee) and shall instead be paid (in
a manner set forth in the Award Agreement) upon expiration of such delay period.
14.15 No
Representations or Covenants with respect to Tax Qualification. Although the Company may endeavor to (a) qualify an Award for
favorable tax treatment under the laws of the United States or jurisdictions outside of the United States (e.g., incentive stock
options under Section 422 of the Code) or (b) avoid adverse tax treatment (e.g., under Section 409A of the Code),
the Company makes no representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax
treatment, anything to the contrary in this Plan, including Section 14.15 hereof, notwithstanding. The Company shall be unconstrained
in its corporate activities without regard to the potential negative tax impact on holders of Awards under the Plan. Nothing in this Plan
or in an Award Agreement shall provide a basis for any person to take any action against the Company or any Affiliate based on matters
covered by Section 409A of the Code, including the tax treatment of any Awards, and neither the Company nor any Affiliate will have
any liability under any circumstances to the Participant or any other party if the Award that is intended to be exempt from, or compliant
with, Section 409A of the Code, is not so exempt or compliant or for any action taken by the Committee with respect thereto.
14.16 Provisions
for Foreign Participants. The Committee may modify Awards granted to Participants who are foreign nationals or employed outside of
the United States or establish sub-plans or procedures under the Plan to recognize differences in laws, rules, regulations or customs
of foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.
Exhibit 10.17
Employee Stock
Purchase Plan
This Employee Stock
Purchase Plan (the “Plan”) of the Company is effective July 30, 2025, subject to approval by the Company’s shareholders
of the Statutory Plan defined below.
1. Purpose and
Structure of the Plan and its Sub-Plans.
1.1 The purpose
of this Plan is to provide eligible employees of the Company and Participating Companies (each a “Participant”) who wish
to become shareholders in the Company a convenient method of doing so. It is believed that employee participation in the ownership of
the business will be to the mutual benefit of both the Participants and the Company. This Plan document is an omnibus document which
includes a sub-plan (“Statutory Plan”) designed to permit offerings of grants to employees of the Company and its Subsidiaries
that are Participating Companies where such offerings are intended to satisfy the requirements of Section 423 of the Code (although
the Company makes no undertaking nor representation to obtain or maintain qualification under Section 423 for any Subsidiary, individual,
offering or grant) and also separate sub-plans (“Non-Statutory Plans”) which permit offerings of grants to Participants of
certain Participating Companies which are not intended to satisfy the requirements of Section 423 of the Code. Section 6 of
the Plan sets forth the maximum number of shares to be offered under the Plan (and its sub-plans), subject to adjustments as permitted
under Sections 19 and 20.
1.2 The Statutory
Plan shall be a separate and independent plan from the Non-Statutory Plans, provided, however, that the total number of shares authorized
to be issued under the Plan applies in the aggregate to both the Statutory Plan and the Non-Statutory Plans. Offerings under the Non-Statutory
Plans may be made to Participants of entities that are not Subsidiaries.
1.3 All Participants
in the Statutory Plan shall have the same rights and privileges under such sub-plan except for differences that may be mandated by local
law and are consistent with the requirements of Code Section 423(b)(5). The terms of the Statutory Plan shall be those set forth
in this Plan document to the extent such terms are consistent with the requirements for qualification under Code Section 423. The
Administrator may adopt Non-Statutory Plans applicable to particular Participating Companies or locations that are not participating
in the Statutory Plan. The terms of each Non-Statutory Plan may take precedence over other provisions in this document, with the exception
of Sections 6, 19 and 20 with respect to the total number of shares available to be offered under the Plan for all sub-plans. Unless
otherwise superseded by the terms of such Non-Statutory Plan, the provisions of this Plan document shall govern the operation of such
Non-Statutory Plan. Except to the extent expressly set forth herein or where the context suggests otherwise, any reference herein to
“Plan” shall be construed to include a reference to the Statutory Plan and the Non-Statutory Plans.
2. Definitions.
2.1 “Account”
means the funds accumulated with respect to an individual Participant as a result of deductions from such Participant’s paycheck
(or otherwise as permitted in certain circumstances under the terms of the Plan) for the purpose of purchasing stock under this Plan.
The funds allocated to a Participant’s Account shall remain the property of the Participant at all times but may be commingled
with the general funds of the Company, except to the extent such commingling may be prohibited by the laws of any applicable jurisdiction.
2.2 “Administrator”
means the Committee or the persons acting within the scope of their authority to administer the Plan pursuant to a delegation of authority
from the Committee pursuant to Section 22.
2.3 “Affiliate”
means an entity, other than a Subsidiary, in which the Company has an equity ownership interest or dental practices affiliated with Company.
2.4 “Board”
means the Board of Directors of the Company.
2.5 “Code”
means the Internal Revenue Code, as amended from time to time.
2.6 “Committee”
means the Compensation Committee of the Board. The Committee may delegate its responsibilities as provided in Section 22.
2.7 “Company”
means Park Dental Partners, Inc.
2.8 “Compensation”
means total cash pay (including any performance-based pay) received by the Participant from a Participating Company. By way of illustration,
but not limitation, Compensation includes salary, wages, performance bonuses, commissions, incentive compensation and overtime but excludes
relocation, sign-on bonuses, expense reimbursements, meal allowances, commuting or automobile allowances, or any other payments with
respect to which salary reductions are not permitted by the laws of the applicable jurisdiction, and income realized as a result of participation
in any stock plan, including without limitation any stock option, stock award, stock purchase, or similar plan, of the Company or any
Subsidiary or Affiliate.
2.9 “Enrollment
Agreement” means an agreement between the Company and a Participant, in such form as may be established by the Company from time
to time, pursuant to which the Participant elects to participate in this Plan, or elects changes with respect to such participation as
permitted under the Plan.
2.10 “ESPP
Broker” means a stock brokerage, transfer agent or other entity designated by the Company to establish accounts for stock purchased
under the Plan by Participants.
2.11 “Fair
Market Value” means the closing bid price as reported on the National Association of Securities Dealers Automated Quotation Capital
Market or the other primary trading market for the Company’s Common Stock.
2.12 “Offering
Date” as used in this Plan shall be the commencement date of an offering. A different date may be set by the Committee.
2.13 “Participating
Company” means the Company and any Subsidiary or Affiliate that has been designated by the Administrator to participate in the
Plan. For purposes of participation in the Statutory Plan, only the Company and its Subsidiaries may be considered Participating Companies,
and the Administrator shall designate from time to time which Subsidiaries will be Participating Companies in the Statutory Plan. The
Administrator shall designate from time to time which Subsidiaries and Affiliates will be Participating Companies in particular Non-Statutory
Plans provided, however, that at any given time, a Subsidiary that is a Participating Company in the Statutory Plan will not be a Participating
Company in a Non-Statutory Plan. The foregoing designations and changes in designation by the Administrator shall not require shareholder
approval. Notwithstanding the foregoing, the term “Participating Company” shall not include any Subsidiary or Affiliate that
offers its employees the opportunity to participate in an employee stock purchase plan covering the Subsidiary’s or Affiliate’s
common stock.
2.14 “Plan”
means this Park Dental Partners, Inc Employee Stock Purchase Plan.
2.15 “Purchase
Price” is the price per share of Common Stock of the Company as established pursuant to Section 5 of the Plan.
2.16 “Subsidiary”
means any corporation (other than the Company), domestic or foreign, that is in an unbroken chain of corporations beginning with Company
if, on an Offering Date, each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the other corporations in the chain, as described in Code Section 424(f).
3. Employees
Eligible to Participate. Any Participant of a Participating Company who is in the employ of any Participating Company on the
last business day preceding the Offering Date for an offering is eligible to participate in that offering, except Participants whose
customary employment is for not more than five months in any calendar year.
4. Offerings. Subject
to the right of the Company in its sole discretion to sooner terminate the Plan or to change the commencement date or term of any offering,
commencing on the first day of the first year after the Company’s Common Stock commences trading on a national securities exchange,
the Plan will operate with separate consecutive six-month offerings with the following Offering Dates: January 1 and July 1.
Unless a termination of or change to the Plan has previously been made by the Company, the final offering under this Plan shall commence
on July 1, 2035 and terminate on December 31, 2035. In order to become eligible to purchase shares, a Participant must complete
and submit an Enrollment Agreement and any other necessary documents before the Offering Date of the particular offering in which he
or she wishes to participate. Participation in one offering under the Plan shall neither limit, nor require, participation in any other
offering.
5. Price. The
Purchase Price per share shall be eighty-five percent (85%) of the Fair Market Value of the stock on the last regular business day
of the offering.
6. Number of
Shares to be Offered. The maximum number of shares that will be offered under the Plan is 250,000 shares, subject to adjustment
as permitted under Section 20. The shares to be sold to Participants under the Plan will be shares of the Company’s Common
Stock, par value of $0.0001 per share.
7. Participation.
7.1 An eligible
employee may become a Participant by completing an Enrollment Agreement provided by the Company and submitting it to the Company, or
with such other entity designated by the Company for this purpose, prior to the commencement of the offering to which it relates. The
Enrollment Agreement may be completed at any time after the Participant becomes eligible to participate in the Plan, and will be effective
as of the Offering Date next following the receipt of a properly completed Enrollment Agreement by the Company (or the Company’s
designee for this purpose).
7.2 Payroll deductions
for a Participant shall commence on the Offering Date as described above and shall continue through subsequent offerings pursuant to
Section 10 until the Participant’s termination of employment, subject to modification by the Participant as provided in Section 8.1,
and unless participation is earlier withdrawn or suspended by the Participant as provided in Section 9.
7.3 Payroll deduction
shall be the sole means of accumulating funds in a Participant’s Account, except in foreign countries where payroll deductions
are not allowed, in which case the Company may authorize alternative payment methods.
7.4 The Company
may require current Participants to complete a new Enrollment Agreement at any time it deems necessary or desirable to facilitate Plan
administration or for any other reason.
8. Payroll Deductions.
8.1 At the time
a Participant files a payroll deduction authorization, the Participant shall elect to have deductions made from the Participant’s
Compensation on each payday during the time he or she is a Participant in an offering at any non-fractional percentage rate from 1% to
15%. A Participant may change his or her payroll deduction percentage election, including changing the payroll deduction percentage to
zero, effective as of any Offering Date by filing a revised authorization, provided the revised authorization is filed prior to such
Offering Date.
8.2 All payroll
deductions made for a Participant shall be credited to his or her Account under the Plan. A Participant may not make any separate cash
payment into his or her Account nor may payment for shares be made other than by payroll deduction, except as provided under Section 7.3.
8.3 A Participant
may withdraw from or suspend his or her participation in the Plan as provided in Section 9, but no other change can be made during
an offering with respect to that offering. A Participant may also make a prospective election, by changing his or her payroll deduction
percentage to zero as set forth in Section 8.1, to cease participation in the Plan effective as of the next Offering Date. Other
changes permitted under the Plan may only be made with respect to an offering that has not yet commenced.
9. Withdrawal
and Suspension.
9.1 A Participant
may withdraw from an offering, in whole but not in part, at any time prior to the first day of the last calendar month of such offering
by submitting a withdrawal notice to the Company, in which event the Company will refund the entire balance of his or her Account as
soon as practicable thereafter.
9.2 A Participant
may, at any time prior to the first day of the last calendar month of an offering, reduce to zero the percentage by which he or she has
elected to have his or her Compensation reduced, thereby suspending participation in the Plan. The reduction will be effective as soon
as administratively feasible after receipt of the Participant’s election. Shares shall be purchased in accordance with Section 13
based on the amounts accumulated in the Participant’s Account prior to the suspension of payroll deductions.
9.3 If a Participant
withdraws or suspends his or her participation pursuant to Sections 9.1 or 9.2, he or she shall not participate in a subsequent offering
unless and until he or she re-enters the Plan. To re-enter the Plan, a Participant who has previously withdrawn or suspended participation
by reducing payroll deductions to zero must file a new Enrollment Agreement in accordance with Section 7.1. The Participant’s
re-entry into the Plan will not become effective before the beginning of the next offering following his or her withdrawal or suspension.
10. Automatic
Re-Enrollment. At the termination of each offering each Participant who continues to be eligible to participate pursuant to
Section 3 shall be automatically re-enrolled in the next offering, unless the Participant has advised the Company otherwise in writing.
Upon termination of the Plan, any balance in each Participant’s Account shall be refunded promptly to him or her.
11. Interest. No
interest will be paid or allowed on any money in the Accounts of Participant, except to the extent payment of interest is required by
the laws of any applicable jurisdiction.
12. Granting
of Option. On each Offering Date, this Plan shall be deemed to have granted to the Participant an option for as many shares
(which shall not include any fractional share(s)) as he or she will be able to purchase with the amounts credited to his or her Account
during his or her participation in that offering. Notwithstanding the foregoing, no Participant shall be allowed to subscribe for any
shares under the Plan that permit his or her rights to purchase shares under all “employee stock purchase plans” of the Company
and any parent or subsidiary corporations to accrue at a rate that exceeds $25,000 of Fair Market Value of such shares (determined at
the time such right to subscribe is granted) for each calendar year in which the right to subscribe is outstanding at any time.
13. Exercise
of Option. Each employee who continues to be a Participant in an offering on the last business day of that offering shall be
deemed to have exercised his or her option on that date and shall be deemed to have purchased from the Company the number of shares (which
shall not include any fractional share(s)) of common stock reserved for the purpose of the Plan as the balance of his or her Account
on such date will pay for at the Purchase Price.
14. Tax Obligations. To
the extent any (i) grant of an option to purchase shares, (ii) purchase of shares, or (iii) disposition of shares purchased
under the Plan gives rise to any tax withholding obligation (including, without limitation, income and payroll withholding taxes imposed
by any jurisdiction) the Administrator may implement appropriate procedures to ensure that such tax withholding obligations are met.
Those procedures may include, without limitation, increased withholding from a Participant’s current compensation, cash payments
to the Company or another Participating Company by a Participant, or a sale of a portion of the stock purchased under the Plan, which
sale may be required and initiated by the Company.
15. Employee’s
Rights as a Shareholder. No Participant shall have any rights as a shareholder with respect to any shares until the shares have
been purchased in accordance with Section 13 above and the stock has been issued by the Company.
16. Evidence
of Stock Ownership.
16.1 Following
the end of each offering, the number of shares of common stock purchased by each Participant shall be deposited into an account established
in the Participant’s name at the ESPP Broker.
16.2 Except as
provided in Section 25, a Participant shall be free to undertake a disposition (as that term is defined in Section 424(c) of
the Code) of the shares in his or her ESPP Broker account at any time, whether by sale, exchange, gift, or other transfer of legal title,
but in the absence of such a disposition of the shares, the shares must remain in the Participant’s ESPP Broker account until the
holding period set forth in Section 423(a) of the Code has been satisfied. With respect to shares for which the Section 423(a) holding
period has been satisfied, the Participant may move those shares to another brokerage account of Participant’s choosing.
16.3 Notwithstanding
the above, a Participant who is not subject to income taxation under the Code may move his or her shares to another brokerage account
of his or her choosing at any time, without regard to the satisfaction of the Section 423(a) holding period.
17. Rights Not
Transferable. No Participant shall be permitted to sell, assign, transfer, pledge, or otherwise dispose of or encumber either
the payroll deductions credited to his or her Account or an option or any rights with regard to the exercise of an option or rights to
receive shares under the Plan other than by will or the laws of descent and distribution, and such right and interest shall not be liable
for, or subject to, the debts, contracts, or liabilities of the Participant. If any such action is taken by the Participant, or any claim
is asserted by any other party in respect of such right and interest whether by garnishment, levy, attachment or otherwise, the action
or claim will be treated as an election to withdraw funds in accordance with Section 9. During the Participant’s lifetime,
only the Participant can make decisions regarding the participation in or withdrawal from an offering under the Plan.
18. Termination
of Employment. Upon termination of employment for any reason whatsoever, including but not limited to death or retirement, the
balance in the Account of a Participant shall be paid to the Participant or his or her estate. Whether and when employment is deemed
terminated for purposes of this Plan shall be determined by the Administrator in its sole discretion and may be determined without regard
to statutory notice periods or other periods following termination of active employment.
19. Amendment
or Discontinuance of the Plan. The Committee and the Board shall have the right at any time and without notice to amend, modify
or terminate the Plan; provided, that no Participant’s existing rights under any offering already made under Section 4 hereof
may be adversely affected thereby, and provided further that no such amendment of the Plan shall, except as provided in Section 20,
increase the total number of shares to be offered under the Plan above the limit specified in Section 6 unless shareholder approval
is obtained therefor.
20. Changes
in Capitalization. In the event of reorganization, recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, offerings of rights, or any other change in the structure of the Common Stock of the Company, the Committee may make such
adjustment, if any, as it may deem appropriate in the number, kind, and the price of shares available for purchase under the Plan, and
in the number of shares which a Participant is entitled to purchase including, without limitation, closing an offering early and permitting
purchase on the last business day of the reduced offering period, or terminating an offering and refunding Participants’ Account
balances.
21. Share Ownership. Notwithstanding
anything in the Plan to the contrary, no Participant shall be permitted to subscribe for any shares under the Plan if the Participant,
immediately after such subscription, owns shares (including all shares that may be purchased under outstanding subscriptions under the
Plan) possessing 5% or more of the total combined voting power or value of all classes of shares of the Company or of its parent or subsidiary
corporations. For the foregoing purposes the rules of Section 424(d) of the Code shall apply in determining share ownership,
and shares the Participant may purchase under outstanding options shall be treated as owned by the Participant. In addition, no Participant
shall be allowed to subscribe for any shares under the Plan that permit his or her rights to purchase shares under all “employee
stock purchase plans” of the Company and any parent or subsidiary corporations to accrue at a rate that exceeds $25,000 of Fair
Market Value of such shares (determined at the time such right to subscribe is granted) for each calendar year in which the right to
subscribe is outstanding at any time. Notwithstanding the above, lower limitations may be imposed with respect to Participants in a Non-Statutory
Plan or Participants in the Statutory Plan who are subject to laws of another jurisdiction where lower limitations are required.
22. Administration
and Board Authority.
22.1 The Plan shall
be administered by the Board. The Board has delegated its full authority under the Plan to the Committee, and the Committee may further
delegate any or all of its authority under this Plan to such senior officer(s) of the Company as it may designate. Notwithstanding
any such delegation of authority, the Board may itself take any action under the Plan in its discretion at any time, and any reference
in this Plan document to the rights and obligations of the Committee shall be construed to apply equally to the Board. Any references
to the Board mean only the Board. The authority that may be delegated by the Committee includes, without limitation, the authority to
(i) establish Non-Statutory Plans and determine the terms of such sub-plans, (ii) designate from time to time which Subsidiaries
will participate in the Statutory Plan, which Subsidiaries and Affiliates will be Participating Companies, and which Participating Companies
will participate in a particular Non-Statutory Plan, (iii) determine procedures for eligible Participants to enroll in or withdraw
from a sub-plan, setting or changing payroll deduction percentages, and obtaining necessary tax withholdings, (iv) allocate the
available shares under the Plan to the sub-plans for particular offerings, and (v) adopt amendments to the Plan or any sub-plan
including, without limitation, amendments to increase the shares available for issuance under the Plan pursuant to Section 20 (but
not including increases in the available shares above the maximum permitted by Sections 6 and 20 which shall require Board and shareholder
approval).
22.2 The Administrator
shall be vested with full authority and discretion to construe the terms of the Plan and make factual determinations under the Plan,
and to make, administer, and interpret such rules and regulations as it deems necessary to administer the Plan, and any determination,
decision, or action of the Administrator in connection with the construction, interpretation, administration, or application of the Plan
shall be final, conclusive, and binding upon all Participants and any and all persons claiming under or through any Participant. The
Administrator may retain outside entities and professionals to assist in the administration of the Plan including, without limitation,
a vendor or vendors to perform enrollment and brokerage services. The authority of the Administrator will specifically include, without
limitation, the power to make any changes to the Plan with respect to the participation of employees of any Subsidiary or Affiliate that
is organized under the laws of a country other than the United States of America when the Administrator deems such changes to be necessary
or appropriate to achieve a desired tax treatment in such foreign jurisdiction or to comply with the laws applicable to such non-U.S.
Subsidiaries or Affiliates. Those changes may include, without limitation, the exclusion of particular Subsidiaries or Affiliates from
participation in the plan; modifications to eligibility criteria, maximum number or value of shares that may be purchased in a given
period, or other requirements set forth herein; and procedural or administrative modifications. Any modification relating to offerings
to a particular Participating Company will apply only to that Participating Company, and will apply equally to all similarly situated
employees of that Participating Company. The rights and privileges of all Participants granted options under the Statutory Plan shall
be the same. To the extent any changes approved by the Administrator would jeopardize the tax-qualified status of the Statutory Plan,
the change shall cause the Participating Companies affected thereby to be considered Participating Companies under a Non-Statutory Plan
or Non-Statutory Plans instead of the Statutory Plan.
23. Notices. All
notices or other communications by a Participant to the Company or other entity designated for a particular purpose under or in connection
with the Plan shall be deemed to have been duly given when received by the Company or other designated entity, or when received in the
form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.
24. Termination
of the Plan. This Plan will terminate at the earliest of the following:
(a) December 31,
2035;
(b) The date
of the filing of a Statement of Intent to Dissolve by the Company or the effective date of a merger or consolidation wherein the Company
is not to be the surviving corporation, which merger or consolidation is not between or among corporations related to the Company. Prior
to the occurrence of either of such events, on such date as the Company may determine, the Company in its sole discretion may permit
a Participant to exercise the option to purchase shares for as many shares as the balance of his or her Account will allow at the price
set forth in accordance with Section 5. If the Participant elects to purchase shares, any remaining balance of the Participant’s
Account will be refunded to the Participant after that purchase;
(c) The date
the Board acts to terminate the Plan in accordance with Section 19; and
(d) The date
when all shares reserved under the Plan have been purchased.
25. Limitations
on Sale of Stock Purchased Under the Plan. The Plan is intended to provide common stock for investment and not for resale. The
Company does not, however, intend to restrict or influence any Participant in the conduct of the Participant’s own affairs. A Participant,
therefore, may sell stock purchased under the Plan at any time the Participant chooses, subject to compliance with any applicable Federal,
state or foreign securities laws. A PARTICIPANT ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE COMPANY’S STOCK
AND ACKNOWLEDGES AND AGREES TO COMPLY WITH ALL REQUIREMENTS OF THE COMPANY’S INSIDER TRADING POLICY.
26. Governmental
Regulation/Compliance with Applicable Law/Separate Offering. The Company’s obligation to sell and deliver shares of the
Company’s Common Stock under this Plan is subject to the approval of any governmental authority required in connection with the
authorization, issuance, or sale of such shares. In addition, the terms of an offering under this Plan, or the rights of a Participant
under an offering, may be modified to the extent required by applicable law. For purposes of this Plan, the Administrator also may designate
separate offerings under the Plan (the terms of which need not be identical) in which Participants of one or more Participating Companies
will participate, even if the dates of the offerings are identical.
27. No Employment/Service
Rights. Nothing in the Plan shall confer upon any Participant the right to continue in employment for any period of specific
duration, nor interfere with or otherwise restrict in any way the rights of the Company (or any Subsidiary or Affiliate employing such
person), or of any Participant, which rights are hereby expressly reserved by each, to terminate such person’s employment at any
time for any reason, with or without cause.
28. Dates and
Times. All references in the Plan to a date or time are intended to refer to dates and times determined pursuant to U.S. Central
Time. Business days for purposes of the Plan are U.S. business days.
29. Masculine
and Feminine, Singular and Plural. Whenever used in the Plan, a pronoun shall include the opposite gender and the singular shall
include the plural, and the plural shall include the singular, whenever the context shall plainly so require.
30. Governing
Law. The Plan shall be governed by the laws of the State of Minnesota, U.S.A., without regard to Minnesota laws that might cause
other law to govern under applicable principles of conflicts of law.
Exhibit 10.18
PARK DENTAL PARTNERS, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"),
effective as of January 1, 2024 (the "Effective Date"), is made by and between Park Dental Partners, Inc.,
a Minnesota corporation (the "Company"), and Peter G. Swenson ("Executive"), collectively referred to
as the "Parties."
Recitals
WHEREAS, the Company currently employs
Executive as Chief Executive Officer and President, and the Company and Executive desire to continue Executive's employment on the
term and conditions set forth herein;
WHEREAS, Executive acknowledges
that during the course of his employment, Executive will have access to and be provided with confidential and proprietary information
and trade secrets of the Company that are invaluable to the Company and vital to the success of the Company's business;
WHEREAS, the Company and Executive
desire to protect such proprietary and confidential information and trade secrets from disclosure to third parties or unauthorized use
to the detriment of the Company; and
WHEREAS, the Company and Executive
desire to set forth in this Agreement, the terms, conditions, and obligations of the parties with respect to such employment.
NOW, THEREFORE, in consideration
of the foregoing recitals, premises and mutual covenants herein contained, and intending to be legally bound hereby, the Company and Executive
hereby agree as follows:
1. Definitions.
"Accountants" means an accounting firm selected by the Company, which is reasonably acceptable to Executive and whose
consent shall not be unreasonably withheld.
1.2 "Board"
means the Board of Directors of the Company.
1.3 "Cause"
means (a) Executive engages in gross negligence or intentional misconduct in the performance of Executive's duties for the Company
or any of its subsidiaries, (b) Executive embezzles or willfully misappropriates assets of the Company or any of its subsidiaries,
(c) Executive is convicted of, or enters a plea of guilty or nolo contendere with respect to, a felony, a crime involving moral turpitude,
or any other crime that materially adversely affects the Company's business, or (d) Executive's engaging in business activities in
material violation of Executive's obligations in Section 4 (including but not limited to Executive's refusal or failure to
perform Executive's duties), violation of Executive's obligations in Section 10, and/or breach of any restrictive covenant
set forth in Section 11 of this Agreement; provided, however, that if the basis for Cause arises under Section 1.3(d) in
connection with violation of Executive's obligations under Section 4.2 of this Agreement (including, for the avoidance of doubt,
job performance refusals or failures), Cause shall exist only if the event giving rise to Cause is not remedied by Executive within 30
days after receipt of notice thereof given by the Company. Notwithstanding anything in this Agreement to the contrary, no actions, events
or circumstances occurring or taking place at any time prior to the date of this Agreement shall in any event constitute or provide any
basis for any termination of Executive for Cause.
1.4 "Change
of Control" shall mean the occurrence of any of the following events: (a) an acquisition of the Company by another entity
by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger or consolidation,
but not including any transaction effected solely to change the state of incorporation of the Company), or (b) a sale of all or substantially
all of the assets of the Company, so long as in either case the Company's stockholders of record immediately prior to such change of control
transaction will, immediately after such change of control transaction, hold less than fifty percent (50%) of the voting power of the
surviving or acquiring entity.
1.5 "Code"
means the Internal Revenue Code of 1986, as amended.
1.6 "Covered
Payments" means the payments or benefits provided or to be provided by the Company or its affiliates to Executive or for Executive's
benefit pursuant to the terms of this Agreement or otherwise.
1.7 "Disability"
means if by reason of any mental, sensory, or physical impairment, Executive is unable to perform the essential functions of
Executive's duties hereunder with reasonable accommodations, unless any such accommodations would impose an undue hardship on the
Company's business, for a period of ninety (90) consecutive calendar days. The written medical opinion of an independent medical
physician mutually acceptable to Executive and the Company will determine if Executive has a Disability.
1.8 "Excise
Tax" means the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar
tax imposed by state or local law or any interest or penalties with respect to such taxes.
1.9 "Good
Reason" means (a) any material reduction in the amount or type of compensation paid to Executive or material reduction
in benefits inconsistent with benefit reductions taken by other members of Company's senior management; (b) any material
diminution of Executive's reporting responsibilities, titles and offices, and removal of Executive from such position which has the
effect of materially diminishing Executive's responsibility and authority; (c) the Board requiring the Executive to be based at
any office or location other than facilities within 50 miles of Minneapolis, Minnesota; or (d) any material breach by the
Company of any contract entered into between the Executive and the Company or an affiliate of the Company, including this Agreement,
which in any such event is not remedied by Company within thirty (30) days after receipt of notice thereof given by the Executive
within ninety (90) days after Executive's first knowledge of such event occurring; provided, that any refusal of the Company to
agree to other business activities of Executive pursuant to Section 4.3 will not constitute Good Reason.
1.10 "Parachute
Payments" means parachute payments within the meaning of Section 280G of the Code.
1.11 "Prior
Deferred Incentive Compensation" means those deferred incentive compensation arrangements in place between Executive and
PDG, P.A, Dental Specialists of Minnesota, PLLC, and Orthodontic Specialists of Minnesota, PLLC pursuant to Executive's Employment
Agreement dated April 1, 2007, as amended February 8, 2017, December 31, 2018, December 16, 2020, and
March 1, 2022, in effect immediately prior to the Effective Date (the "Prior Employment Agreement. ")
2. Employment.
Subject to the terms and provisions set forth in this Agreement, the Company hereby employs Executive as the President and Chief Executive
Officer of the Company.
3. Agreement
Term. This Agreement shall commence on the Effective Date, and shall continue, unless sooner terminated in accordance with this
Agreement, until December 31, 2026 (the "Initial Period"); provided, however, this Agreement shall be extended
automatically for successive one-year periods (each an "Extended Period," and together with the Initial Period, the
"Agreement Period") unless either party provides notice of non-renewal to the other party at or before one-hundred eighty
(180) days prior to expiration of the Initial Period or any Extended Period, as applicable. During the Agreement Period, Executive's
employment may be terminated by the Company or Executive, subject to the provisions of Section 6 of this Agreement. Notwithstanding
the provisions of this Section, the provisions of Sections 8, 9, 10, 11 and 12 shall survive the termination of Executive's employment
(for any reason) and remain in full force and effect thereafter.
4. Positions,
Responsibilities and Duties.
4.1 Positions.
During the period of Executive's employment with the Company, Executive shall be employed and serve as the President and Chief
Executive Officer of the Company. Executive shall report to the Board. Executive shall also serve without additional compensation as
a member of the Board, and, if so requested by the Company, as an officer or director of any subsidiary or affiliate of the
Company.
4.2 Duties.
Executive shall have the duties, responsibilities and authority normally associated with the office and position of President and
Chief Executive Officer and as otherwise established by the Board from time to time. During the Agreement Period, subject to the
provisions of Section 4.3, Executive shall devote substantially all of his business time, during normal business hours,
to the business and affairs of the Company and Executive shall use his best efforts to perform faithfully and efficiently the duties
and responsibilities contemplated by this Agreement. Executive shall perform his duties, responsibilities, and functions to the
Company to the best of his abilities in a diligent and business-like manner. Executive shall not perform any consulting or other
professional services outside of his employment with the Company during the Agreement Period.
4.3 Permitted
Activities. Notwithstanding the provisions of Section 4.2, Executive shall be allowed, to the extent such activities
do not substantially interfere with the performance by Executive of his duties and responsibilities hereunder, to consult with and/or
serve on corporate, civic or charitable boards or committees. Executive will notify the Chairman of the Board in advance of the extent
and nature of any such activities, and any such activities will be permitted only upon the approval of the Company, which will not be
unreasonably withheld. Prior to execution of this Agreement, Executive agrees to provide the Chairman, or if Executive is then serving
as Chairman, a representative appointed by the Board, a complete list of all corporate, civic, charitable boards or committees on which
the Executive currently serves.
5. Compensation
and Other Benefits.
5.1 Annualized
Base Salary. Executive shall receive an annualized base salary ("Base Salary") payable in accordance with the
Company's normal payroll practices of $602,550 through the first anniversary of the Effective Date. Thereafter, the Board may, in its
sole discretion, increase the Base Salary at any time and may not decrease the Base Salary without Executive's written consent. Executive's
Base Salary is increased in accordance with the Company's executive compensation review process and subject to approval by the Company's
Board, subject to adjustment only as provided in this Section 5.1.
5.2 Incentive
Bonus. During the Agreement Period, Executive shall be eligible to participate in any incentive bonus plan in effect for officers
and executives of the Company (the "Incentive Bonus Plan"), under which Executive will receive a performance-based bonus
the amount of which, if any, will be determined and paid based upon satisfaction of criteria determined for each calendar year for officers
and executives by recommendation of the Compensation Committee of the Board and approval of the Board. During the Agreement Period, Executive's
target payout percentage under the Incentive Bonus Plan will be 75% of his then-current Base Salary, prorated for the portion of the fiscal
year during which Executive is employed by the Company. Goals for each year are to be set during the first quarter. Any bonus amounts
payable to Executive under the Incentive Bonus Plan shall be paid at the same time as annual bonuses are paid to the Company's other executive
officers after the end of the year in which the bonus was earned, but no later than April 15 following the end of that year.
5.3 Equity
Incentive Plan. During the Agreement Period, Executive shall be eligible to participate in any equity incentive plans maintained
by the Company from time to time (the "Company Equity Plans") at a target level of 200% of his then-current Base Salary,
subject to the annual review and approval of the Compensation Committee of the Company's Board of Directors.
5.4 Prior
Deferred Incentive Compensation. On the Effective Date, in recognition of Executive's Prior Deferred Incentive Compensation, the
Company shall:
(a) Credit
Executive the sum of $2,122,075 as deferred compensation, which shall be payable to Executive upon termination of employment for any reason,
which, for the avoidance of doubt, shall not be deemed to be a payment contingent on a Change of Control. Such amount shall be paid in
sixty (60) equal monthly installments on the date of the Company's first regularly scheduled payroll of each month; and
(b) Issue
to Executive at no cost 77,668 unrestricted Class A-3 shares, and 144,241 restricted Class A-3 shares (collectively, the "Initial
Equity Awards"). The restricted stock will vest (i) 25% upon closing of an initial public offering of Company stock, and
6.25% on subsequent quarters) subject to Section 6.8 below; and (ii) 100% upon a Change of Control in the absence of
an initial public offering, subject to Section 6.8 below.
5.5 Benefit
Plans. During the Agreement Period, Executive shall be eligible to participate in all pension, 401(k) and other employee
benefit plans, policies and programs for the benefit of executive officers ("Benefit Plans"). The Company reserves the
right to modify, suspend or discontinue any Benefit Plans at any time without notice to or recourse by Executive, so long as such action
is taken generally with respect to other similarly situated executives employed by the Company.
5.6 Paid
Time Off ("PTO"). During the Agreement Period, Executive shall be entitled to twenty-five (25)
days of PTO, in addition to any company-recognized holidays, or family or medical leave to which he is entitled under the Company Benefit
Plans or by law.
5.7 Expense
Reimbursement. During and in respect of the Agreement Period, Executive shall be entitled to receive reimbursement for reasonable
business expenses incurred by Executive in performing his duties and responsibilities hereunder, including without limitation travel,
parking, business meetings and professional dues, incurred and substantiated in accordance with the policies and procedures established
from time to time by the Company for senior executives of the Company.
6. Termination.
6.1 Termination
Due to Death. Upon Executive's death, Executive's estate or his legal representative, as the case may be, shall be entitled to:
(a) any Base Salary earned but unpaid as of the date of death; (b) any other payments and/or benefits which Executive or Executive's
legal representative is entitled to receive under any of the Benefit Plans; c) all shares in the Company vested prior to the date of such
termination; (d) vesting of any unvested incentive grants granted under the Initial Equity Awards; and (d) a bonus payable under
the Incentive Bonus Plan for the fiscal year in which the termination occurred, prorated for the portion of such fiscal year through the
date of termination and payable within thirty (30) days after the date of termination of employment.
6.2 Termination
Due to Executive's Disability. If Executive's condition meets the definition of Disability above, the Company may
terminate Executive's employment upon written notice. If terminated by the Company as herein provided, the Company shall pay to Executive:
(a) any Base Salary earned but unpaid as of the date of Executive's termination due to Disability; (b) any other payments and/or
benefits which Executive or Executive's legal representative is entitled to receive under any of the Benefit Plans; c) all shares in the
Company vested prior to the date of such termination; (d)vesting of any unvested incentive grants granted under the Initial Equity Awards;
and (d) a bonus payable under the Incentive Bonus Plan for the fiscal year in which the termination occurred, prorated for the portion
of such fiscal year through the date of termination and payable within thirty (30) days after the date of termination of employment.
6.3 Termination
by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive's employment without Cause during
the Agreement Period, or Executive may terminate his employment for Good Reason during the Agreement Period. In either such event, Executive
shall be entitled to the following compensation: Upon execution of a general release of claims against the Company in a form acceptable
to the Company and after the expiration of any applicable rescission or revocation period, Executive will receive: (a) Base Salary
in effect at the time of the termination for a period of twelve (12) months, in the manner and at such times as the Base Salary otherwise
would have been payable to Executive; (b) a bonus at the "target bonus" level, prorated for the portion of such fiscal
year through the date of termination and payable within thirty (30) days after the date of termination of employment; c) all shares in
the Company vested prior to the date of such termination; (d) vesting of any unvested incentive grants granted under the Company's
Equity Incentive Plans (including without limitation the Initial Equity Awards); and (d) any other payments and/or benefits which
Executive is entitled to receive under any of the Benefit Plans.
Notwithstanding the foregoing, certain
payments under this Section 6.3 may be delayed pursuant to Section 7.2.
6.4 Termination
in Connection with Change of Control. If Executive is an active and full-time employee at the time of a Change of Control
and within twelve (12) months after the Change of Control, (a) Executive's employment is involuntarily terminated by the
Company or any successor employer resulting from the Change of Control for any reason other than death, Disability or Cause, or
(b) Executive resigns from the Company or any such successor for Good Reason, then Executive shall be entitled to the following
compensation: Upon execution of a general release of claims against the Company in a form acceptable to the Company and after the
expiration of any applicable rescission or revocation period, Executive will receive: (a) Base Salary in effect at the time of
the termination a period of twelve (12) months following the termination of Executive's employment, in the manner and at such times
as the Base Salary otherwise would have been payable to Executive; (b) a bonus at the "target bonus" level, prorated
for the portion of such fiscal year through the date of termination and payable within thirty (30) days after the date of
termination of employment; c) all shares in the Company vested prior to the date of such termination; (d) vesting of any
unvested incentive grants granted under the Company’s Equity Incentive Plans (including without limitation the Initial Equity
Awards); and (d) any other payments and/or benefits which Executive is entitled to receive under any of the Benefit Plans.
Notwithstanding the foregoing, certain
payments under this Section 6.4 may be delayed pursuant to Section 7.2.
6.5 Termination
by the Company for Cause. The Company may terminate Executive's employment hereunder for Cause. In such event, Executive only
shall be entitled to: (a) any Base Salary earned but unpaid through the date of such termination; (b) all shares in the Company
vested prior to the date of such termination; and (c) any other earned and vested payments and/or benefits that Executive is entitled
to receive under any of the Benefit Plans.
6.6 Voluntary
Resignation Without Good Reason. If Executive voluntarily resigns during the Agreement Period without Good Reason, then Executive
only shall be entitled to: (a) Base Salary earned but unpaid as of the date of Executive's termination; (b) all shares in the
Company vested prior to the date of such termination; and (c) any other payments and/or benefits which Executive is entitled to receive
under any of the Benefit Plans.
6.7 Non-Renewal.
If the Company provides notice of non-renewal in accordance with Section 3, then upon execution of a general release of claims
against the Company in a form acceptable to the Company and after the expiration of any applicable rescission or revocation period, Executive
shall be entitled to (a) Base Salary in effect for the remainder of the Agreement Period; (b) a bonus at the "target bonus"
level, prorated for the portion of such fiscal year through the date of termination and payable within thirty (30) days after the date
of termination of employment; c) all shares in the Company vested prior to the date of such termination; (d) vesting of any unvested
incentive grants granted under the Initial Equity Awards; and (d) any other payments and/or benefits which Executive is entitled
to receive under any of the Benefit Plans. If Executive provides notice of non-renewal in accordance with Section 3, then
such non-renewal shall be treated as a Voluntary Resignation without Good Reason under Section 6.6.
6.8 Vesting
of Initial Equity Awards Upon Retirement.
(a) Retirement
Prior to IPO. In the event that Executive retires from employment by the Company on or after age 62 (after having provided 12-month
notice) prior to the closing of an initial public offering of the Company's Common Stock, there shall be no forfeiture of any unvested
restricted stock granted as part of the Initial Equity Awards, and any such unvested restricted stock granted as part of the Initial
Equity Awards shall vest (a) 100% upon the effective date of the closing of such initial public offering of the Company’s
common stock; and (b) 100% upon a Change of Control (in the absence of an initial public offering).
(b) Retirement
After IPO. In the event that Executive retires from employment by the Company on or after age 62 (after having provided the 12-month
notice) after the closing of an initial public offering of the Company’s common stock, any then unvested restricted stock granted
as part of the Initial Equity Awards shall vest 100% upon the effective date of such retirement.
7. Severance
Payment Limitations or Possible Delay Under Code Section 409A.
7.1 Notwithstanding
any other provision of this Agreement, the Company and Executive intend that any payments, benefits or other provisions applicable
to this Agreement comply with the payout and other limitations and restrictions imposed under Section 409A of the Code
("Section 409A"), as clarified or modified by guidance from the U.S. Department of Treasury or the Internal
Revenue Service-in each case if and to the extent Section 409A is otherwise applicable to this Agreement and such compliance is
necessary to avoid the penalties otherwise imposed under Section 409A. In this regard, the Company and Executive agree that the
payments, benefits and other provisions applicable to this Agreement, and the terms of any deferral and other rights regarding this
Agreement, shall be interpreted and deemed modified if and to the extent necessary to comply with the payout and other limitations
and restrictions imposed under Section 409A, as clarified or supplemented by guidance from the U.S. Department of Treasury or
the Internal Revenue Service-in each case if and to the extent Section 409A is otherwise applicable to this Agreement and such
compliance is necessary to avoid the penalties otherwise imposed under Section 409A.
7.2 In
the event any portion of any payments due under Section 6.3 (in the event of termination by the Company without Cause or by
Executive for Good Reason), Section 6.4 (in the event of certain terminations after a Change of Control) or Section 6.7
(in the event of Non-Renewal by the Company) would exceed the sum of the applicable limited separation pay exclusions as determined pursuant
to Code Section 409A, then payment of the excess amount shall be delayed until the first regular payroll date of the Company following
the six (6) month anniversary of the Executive's date of termination (or the date of his death, if earlier), and shall include a
lump sum equal to the aggregate amounts that Executive would have received had payment of this excess amount commenced as provided above
following the date of termination. If Executive continues to perform any services for the Company (as an employee or otherwise) after
the date of termination, such six-month period shall be measured from the date of Executive's "separation from service" as defined
pursuant to Code Section 409A.
7.3 Executive
does not have any right to make any election regarding the time or form of any payment due under Sections 6.3, 6.4, or 6.7
or any other provision of this Agreement.
7.4 The
Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes, and other amounts required
by applicable law to be withheld by the Company.
8. Limitation
on Parachute Payments.
8.1 Limitation.
Notwithstanding anything stated in this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the Covered
Payments constitute Parachute Payments and would, but for this Section 8 be subject to the Excise Tax, then the Covered Payments
shall be payable either (a) in full or (b) reduced to the minimum extent necessary to ensure that no portion of the Covered
Payments is subject to the Excise Tax, whichever of the foregoing (a) or (b) results in Executive's receipt on an after-tax
basis of the greatest amount of benefits after taking into account the applicable federal, state, local and foreign income, employment
and excise taxes (including the Excise Tax).
8.2 Possible
Reduction. If necessary, the Covered Payments shall be reduced in a manner that maximizes Executive's economic position. In applying
this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two
economically equivalent amounts are subject to reduction but are payable at different times, such amounts shall be reduced on a pro rata
basis but not below zero.
8.3 Accountants.
Any determination required under this Section 8 shall be made in writing in good faith by the Accountants, which shall provide
detailed supporting calculations to the Company and Executive as required by the Company or Executive. The Company and Executive shall
provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination
under this Section 8. The Company shall be responsible for all fees and expenses of the Accountants.
8.4 Overpayment
or Underpayment. It is possible that after the determinations and selections made pursuant to this Section 8 Executive
will receive Covered Payments that are in the aggregate more than the amount provided under this Section 8 ("Overpayment")
or less than the amount provided under this Section 8.4 ("Underpayment").
(a) In
the event that: (i) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either
the Company or Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (ii) it
is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively
resolved that an Overpayment has been made, then Executive shall pay any such Overpayment to the Company.
(b) In
the event that: (i) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has
occurred or (ii) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid
promptly by the Company to or for the benefit of Executive.
9. Successors.
9.1 The
Executive. This Agreement is personal to Executive and, without the prior express written consent of the Company, shall not be
assignable by Executive, except that Executive's rights to receive any compensation or benefits under this Agreement may be transferred
or disposed of pursuant to testamentary disposition, intestate succession or pursuant to a domestic relations order. This Agreement shall
inure to the benefit of and be enforceable by Executive's heirs, beneficiaries and/or legal representatives. Except as otherwise provided
in this Agreement, transfers or disposition of any equity grants shall be governed by the terms and conditions of the applicable award
agreement and equity plan.
9.2 The
Company. This Agreement shall inure to the benefit of and be binding upon the Company and its respective successors and assigns.
10. Confidential
Information.
10.1 Non-Disclosure.
Executive acknowledges that the Company continually develops Confidential Information (as defined below), that Executive will obtain Confidential
Information during employment with the Company, that Executive may develop Confidential Information for the Company, and that Executive
has learned and may learn of Confidential Information during the course of employment. Executive will comply with the policies and procedures
of the Company for protecting Confidential Information obtained from the Company and shall not use or disclose to any person, corporation
or other entity (except as required by applicable law or for the proper performance of the regular duties and responsibilities of Executive
for the Company) any Confidential Information obtained by Executive during employment with the Company, or other association with the
Company. Executive understands that this restriction shall continue to apply to Confidential Information following termination of Executive's
employment, regardless of the reason for such termination.
The Company hereby
advises Executive as follows under the federal Defend Trade Secrets Act: An individual shall not be held criminally or civilly liable
under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal,
State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting
or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding,
if such filing is made under seal. In addition, an individual who files a lawsuit for retaliation by an employer for reporting a suspected
violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding,
if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret,
except pursuant to court order. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability
for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).
10.2 "Confidential
Information." For purposes of this Agreement, "Confidential Information" means any and all information of
the Company or concerning the business or affairs of the Company that is not generally known by others with whom any of them compete or
do business, or with whom any of them plan to compete or do business. Confidential Information includes, without limitation, such information
relating to: (a) the development, research, testing, marketing, strategies, and financial activities of the Company, (b) the
products and services, present and in contemplation, of the Company, (c) inventions, processes, operations, administrative procedures,
databases, programs, systems, flow charts, software, firmware and equipment used in the business of the Company, (d) the costs, financial
performance and strategic plans of the Company, (e) the people and organizations with whom the Company has or had business relationships
and the substance of those relationships. Confidential Information also includes all information that the Company received belonging to
others with any understanding, express or implied, that it would not be disclosed. Failure to mark any of the Confidential Information
as confidential or proprietary will not affect its status as Confidential Information.
10.3 Documents.
All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company
and any copies, in whole or in part, thereof ("Documents"), whether or not prepared by Executive, shall be the sole and
exclusive property of the Company. Executive shall safeguard all Documents and shall surrender to the Company at the time Executive's
employment terminates, or at such earlier time or times as the President, Chief Executive Officer, or Board or their designees may specify,
all Documents, Confidential Information, and Company property in good working condition then in Executive's possession or control.
10.4 Former
Employer Information. Executive agrees that Executive will not, during Executive's employment with the Company, improperly use
or disclose any proprietary information or trade secrets or any other property of any former or concurrent employer or other person or
entity and that Executive will not bring onto the premises of the Company any proprietary information belong to any such employer, person
or entity.
11. Restrictive
Covenants. In return for the Company's (a) promise to grant Executive access to certain of the Company's Confidential Information,
and (b) the Company's actual grant to Executive of access to certain of its Confidential Information, (c) the opportunity for
continued employment as the Company's President and Chief Executive Officer, and (d) the valuable pay and benefits in this Agreement
that are intended, in part, to reward Executive for developing and protecting the Company's Confidential Information, Executive makes
the following commitments and Executive acknowledges these benefits constitute adequate and sufficient consideration for the restrictions
in this Agreement.
11.1 Non-Solicitation.
During the Agreement Period and for a period of one year after any termination of employment hereunder for any reason, Executive will
not, directly or indirectly, (a) induce or attempt to induce any employee of the Company to leave the employ of the Company or to
breach that person's contract (if any) with the Company, (b) in any way interfere with the relationships between the Company and
any such employee of the Company, (c) employ or otherwise engage as an employee, independent contractor or otherwise any such employee
of the Company, or (d) induce or attempt to induce any customer, supplier, licensee or other person or entity that has done business
with the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier,
licensee or other business entity and the Company.
11.2 Mutual
Non-Disparagement. During Executive's employment with the Company and at all times following Executive's termination of employment
for any reason, (a) Executive covenants and agrees that he will not, nor induce others to, disparage the Company, its past and present
officers, directors, employees, products or services and (b) the Company shall not, and shall instruct members of its Board and the
senior executives of the Company not to, disparage Executive. Nothing herein shall prohibit (a) the Company from complying with federal
disclosure obligations; (b) either Party from disclosing that Executive is no longer employed by the Company, (c) either Party
from responding truthfully to any governmental investigation, legal process or inquiry related thereto, or (d) either Party from
making a good faith rebuttal of the other party's untrue or misleading statement. For purposes of this Agreement, the term "disparage"
means any statements, whether orally, in writing or through any medium (including, but not limited to, the press or other media, computer
networks or bulletin boards, or any other form of communication), that intentionally disparage, defame, or otherwise damage or assail
the reputation, integrity or professionalism of the other Party.
11.3 Notification
of Restrictive Covenants. Executive acknowledges that the Company may serve notice upon any party with whom Executive accepts
employment, a consulting engagement, engagement as an independent contractor, partnership, joint venture or other association if the Company
reasonably believes that Executive's activities may constitute a violation of Executive's obligations under Section 11.1 above.
Such notice may inform the recipient that Executive is party to this Agreement and may include a copy of this Agreement or relevant portions
thereof.
11.4 Injunctive
Relief. Executive acknowledges and agrees that the Company will have no adequate remedy at law, and would be irreparably harmed,
if Executive breaches or threatens to breach any of the provisions of this Section 11. Executive agrees that the Company shall
be entitled to equitable and/or injunctive relief to prevent any breach or threatened breach of this Section 11, and to specific
performance of each of the terms of such Section in addition to any other legal or equitable remedies that the Company may have.
Executive further agrees that he shall not, in any equity proceeding relating to the enforcement of the terms of this Section 11,
raise the defense that the Company has an adequate remedy at law. The parties understand that both damages and injunctions will be proper
modes of relief and are not to be considered as alternative remedies.
11.5 Special
Severability. The terms and provisions of this Section 11 are intended to be separate and divisible provisions
and if, for any reason, any one or more of them is held to be invalid or unenforceable, neither the validity nor the enforceability
of any other provision of this Agreement shall thereby be affected. It is the intention of the parties to this Agreement that the
potential restrictions on Executive's future employment imposed by this Section 11 be reasonable in both duration and
geographic scope and in all other respects. To the extent any provision of this Agreement is judicially determined to be
unenforceable, a court of competent jurisdiction may reform any such provision to make it enforceable. If for any reason any court
of competent jurisdiction shall find any provisions of this Section 11 unreasonable in duration or geographic scope or
otherwise, Executive and the Company agree that the restrictions and prohibitions contained herein shall be effective to the fullest
extent allowed under applicable law in such jurisdiction.
11.6 Tolling.
The duration of the above restrictions in this Section 11.1 and Section 11.2 will be extended for a period equal
to the duration of any breach or default of such covenant by Executive.
11.7 Replacement
of Prior Restrictive Covenants. Effective on the Effective Date, the restrictive covenants and other terms set forth in this Section 11
shall replace and supplant any and all restrictive covenants and related terms in any of the Executive’s Prior Employment Agreement
or other Agreements or Plans ("Prior Restrictive Covenants"), and all such Prior Restrictive Covenants shall be null
and void and of no further force or effect.
12. Miscellaneous.
12.1 Applicable
Law & Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota,
applied without reference to principles of conflict of laws. The venue for any dispute relating to this Agreement shall be in the state
and/or federal courts in Hennepin County, Minnesota. Executive hereby (a) waives any objection that Executive might have now or hereafter
to the foregoing jurisdiction and venue of any such litigation, action or proceeding, (b) irrevocably submits to the exclusive jurisdiction
of any such court set forth above in any such litigation, action or proceeding, and (c) waives any claim or defense of inconvenient
forum.
12.2 Amendments.
This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
12.3 Indemnification.
The Company agrees that if Executive is made a party or is threatened to be made a party, or is required to appear as a witness to any
action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was an employee or officer of the Company, whether or not the basis of such Proceeding is alleged action in an official
capacity as an officer, employee or agent while serving as an officer, employee or agent, he shall be indemnified and held harmless by
the Company (unless Executive's actions or omissions constitute gross negligence or willful misconduct) to the fullest extent authorized
by law, as the same exists or may hereafter be amended, against all costs and expenses incurred or suffered by Executive in connection
therewith, and such indemnification shall continue as to Executive even if Executive has ceased to be an officer or agent, or is no longer
employed by the Company and shall inure to the benefit of his heirs, executors and administrators. Executive agrees to fully cooperate
with the Company should any Proceeding commence and for the duration of such Proceeding. On the Effective Date, the Company will cause
Executive to be covered and named as an insured on its Director and Officer Liability Insurance policy, which the Company represents to
be in force and in good standing at the time this Agreement is executed.
12.4 Notices.
All notices and other communications hereunder shall be in writing and shall be given by hand-delivery to the other parties or by registered
or certified mail, return receipt requested, postage prepaid, addressed as follows:
To the Company:
Park Dental Partners, Inc.
2200 County Road C West, Suite 2210
Roseville, MN 55113
Attn: Chairman, or if Executive is then serving as Chairman,
a representative appointed by the Board.
If to Executive:
Peter G. Swenson
Last known address on file with the Company,
or to such other address as (a) indicated
in the Company's employment records, or (b) any party shall have furnished to the others in writing in accordance herewith. Notices
and communications shall be effective when actually received by the addressee.
12.5 Severability.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
12.6 Captions.
The captions of this Agreement are not part of the provisions hereof and shall have no force or effect.
12.7 Counterparts.
This Agreement may be executed in one or more counterparts each of which shall be deemed an original instrument, but all of which together
shall constitute but one and the same Agreement.
12.8 Entire
Agreement; Previous Agreements Superseded. This Agreement contains the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral,
between the parties with respect thereto. There are no representations, understandings, or agreements by or between the parties which
are not contained within the four corners of this Agreement. Notwithstanding the foregoing, separate agreements between Executive and
the Company relating to equity awards, stock awards or non-qualified stock options remain in full force and effect, except to the extend
modified in this Agreement.
12.9 Survivorship.
The respective rights and obligations of the parties hereunder shall survive any termination of Executive's employment under this Agreement
for any reason to the extent necessary to the intended provision of such rights and the intended performance of such obligations.
12.10 Attorneys'
Fees and Costs. In the event of any claim, controversy, or dispute arising out of or relating to this Agreement, or breach
hereof, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in connection with any court proceeding.
12.11 No Waiver. No term or condition
of this Agreement will be deemed to have been waived nor shall there be any estoppel to enforce any provision hereof, except by a written
instrument executed by the party charged with waiver or estoppel. The Company's delay, waiver or failure to enforce any of the terms of
this Agreement or any similar agreement in one instance shall not constitute a waiver of its rights hereunder with respect to other violations
of this or any other agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
to be effective as of the date first set forth above.
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PARK DENTAL PARTNERS, INC. |
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|
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By: |
/s/
Alan S. Law, D.D.S., Ph.D. |
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Name: |
Alan S. Law, D.D.S., Ph.D. |
| |
Title: |
Member of Compensation Committee |
| |
|
| |
By: |
/s/
Christopher E. Steele, D.D.S. |
| |
Name: |
Christopher E. Steele, D.D.S. |
| |
Title: |
Member of Compensation Committee |
| |
|
| |
EXECUTIVE |
| |
|
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/s/ Peter G. Swenson |
| |
Peter G. Swenson |
Exhibit 10.19
PARK DENTAL PARTNERS, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"),
effective as of January 1, 2024 (the "Effective Date"), is made by and between Park Dental Partners, Inc., a Minnesota
corporation (the "Company"), and Christopher J. Bernander ("Executive"), collectively referred to as
the "Parties."
Recitals
WHEREAS, the Company currently
employs Executive as Chief Financial Officer and the Company and Executive desire to continue Executive's employment on the term and conditions
set forth herein;
WHEREAS, Executive acknowledges
that during the course of his employment, Executive will have access to and be provided with confidential and proprietary information
and trade secrets of the Company that are invaluable to the Company and vital to the success of the Company's business;
WHEREAS, the Company and Executive
desire to protect such proprietary and confidential information and trade secrets from disclosure to third parties or unauthorized use
to the detriment of the Company; and
WHEREAS, the Company and Executive
desire to set forth in this Agreement, the terms, conditions, and obligations of the parties with respect to such employment.
NOW, THEREFORE, in consideration
of the foregoing recitals, premises and mutual covenants herein contained, and intending to be legally bound hereby, the Company and Executive
hereby agree as follows:
1.
Definitions. "Accountants"
means an accounting firm selected by the Company, which is reasonably acceptable to Executive and whose consent shall not be unreasonably
withheld.
1.2
"Board" means the Board of Directors of the Company.
1.3
"Cause" means (a) Executive engages in gross negligence or intentional misconduct in the performance of Executive's
duties for the Company or any of its subsidiaries, (b) Executive embezzles or willfully misappropriates assets of the Company or any of
its subsidiaries, (c) Executive is convicted of, or enters a plea of guilty or nolo contendere with respect to, a felony, a crime involving
moral turpitude, or any other crime that materially adversely affects the Company's business, or (d) Executive's engaging in business
activities in material violation of Executive's obligations in Section 4 (including but not limited to Executive's refusal or failure
to perform Executive's duties), violation of Executive's obligations in Section 10, and/or breach of any restrictive covenant set
forth in Section 11 of this Agreement; provided, however, that if the basis for Cause arises under Section 1.3(d) in connection
with violation of Executive's obligations under Section 4.2 of this Agreement (including, for the avoidance of doubt, job performance
refusals or failures), Cause shall exist only if the event giving rise to Cause is not remedied by Executive within 30 days after receipt
of notice thereof given by the Company. Notwithstanding anything in this Agreement to the contrary, no actions, events or circumstances
occurring or taking place at any time prior to the date of this Agreement shall in any event constitute or provide any basis for any termination
of Executive for Cause.
1.4
"Change of Control" shall mean the occurrence of any of the following events: (a) an acquisition of the Company by
another entity by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger
or consolidation, but not including any transaction effected solely to change the state of incorporation of the Company), or (b) a sale
of all or substantially all of the assets of the Company, so long as in either case the Company's stockholders of record immediately prior
to such change of control transaction will, immediately after such change of control transaction, hold less than fifty percent (50%) of
the voting power of the surviving or acquiring entity.
1.5
"Code" means the Internal Revenue Code of 1986, as amended.
1.6
"Covered Payments" means the payments or benefits provided or to be provided by the Company or its affiliates to
Executive or for Executive's benefit pursuant to the terms of this Agreement or otherwise.
1.7
"Disability" means if by reason of any mental, sensory, or physical impairment, Executive is unable to perform the
essential functions of Executive's duties hereunder with reasonable accommodations, unless any such accommodations would impose an undue
hardship on the Company's business, for a period of ninety (90) consecutive calendar days. The written medical opinion of an independent
medical physician mutually acceptable to Executive and the Company will determine if Executive has a Disability.
1.8
"Excise Tax" means the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or
any similar tax imposed by state or local law or any interest or penalties with respect to such taxes.
1.9
"Good Reason" means (a) any material reduction in the amount or type of compensation paid to Executive or material
reduction in benefits inconsistent with benefit reductions taken by other members of Company's senior management; (b) any material diminution
of Executive's reporting responsibilities, titles and offices, and removal of Executive from such position which has the effect of materially
diminishing Executive's responsibility and authority; (c) the Board requiring the Executive to be based at any office or location other
than facilities within 50 miles of Minneapolis, Minnesota; or (d) any material breach by the Company of any contract entered into between
the Executive and the Company or an affiliate of the Company, including this Agreement, which in any such event is not remedied by Company
within thirty (30) days after receipt of notice thereof given by the Executive within ninety (90) days after Executive's first knowledge
of such event occurring; provided, that any refusal of the Company to agree to other business activities of Executive pursuant to Section
4.3 will not constitute Good Reason.
1.10 "Parachute Payments" means parachute payments within the meaning of Section 280G of the Code.
2.
Employment. Subject to the terms and provisions set forth in this Agreement, the Company hereby employs Executive as the Chief
Financial Officer of the Company.
3.
Agreement Term. This Agreement shall commence on the Effective Date, and shall continue, unless sooner terminated in accordance
with this Agreement, until December 31, 2026 (the "Initial Period"); provided, however, this Agreement shall be extended
automatically for successive one-year periods (each an "Extended Period," and together with the Initial Period, the "Agreement
Period") unless either party provides notice of non-renewal to the other party at or before one-hundred eighty (180) days prior
to expiration of the Initial Period or any Extended Period, as applicable. During the Agreement Period, Executive's employment may be
terminated by the Company or Executive, subject to the provisions of Section 6 of this Agreement. Notwithstanding the provisions
of this Section, the provisions of Sections 8, 9, 10, 11 and 12 shall survive the termination of Executive's employment (for any
reason) and remain in full force and effect thereafter.
4.
Positions, Responsibilities and Duties.
4.1
Positions. During the period of Executive's employment with the Company, Executive shall be employed and serve as the Chief
Financial Officer of the Company. Executive shall report to the Chief Executive Officer (“CEO”) of the Company. Executive
shall also serve without additional compensation, if so requested by the Company, as an officer or director of any subsidiary or affiliate
of the Company.
4.2
Duties. Executive shall have the duties, responsibilities and authority normally associated with the office and position of
Chief Financial Officer and as otherwise established by the Board from time to time. During the Agreement Period, subject to the provisions
of Section 4.3, Executive shall devote substantially all of his business time, during normal business hours, to the business and
affairs of the Company and Executive shall use his best efforts to perform faithfully and efficiently the duties and responsibilities
contemplated by this Agreement. Executive shall perform his duties, responsibilities, and functions to the Company to the best of his
abilities in a diligent and business-like manner. Executive shall not perform any consulting or other professional services outside of
his employment with the Company during the Agreement Period.
4.3
Permitted Activities. Notwithstanding the provisions of Section 4.2, Executive shall be allowed, to the extent such
activities do not substantially interfere with the performance by Executive of his duties and responsibilities hereunder, to consult
with and/or serve on corporate, civic or charitable boards or committees. Executive will notify the CEO in advance of the extent and
nature of any such activities, and any such activities will be permitted only upon the approval of the Company, which will not be unreasonably
withheld. Prior to execution of this Agreement, Executive agrees to provide the CEO, a complete list of all corporate, civic, charitable
boards or committees on which the Executive currently serves.
5.
Compensation and Other Benefits.
5.1 Annualized
Base Salary. Executive shall receive an annualized base salary ("Base Salary") payable in accordance with
the Company's normal payroll practices of $425,000 through the first anniversary of the Effective Date. Thereafter, the CEO may,
subject to the review and approval of the Compensation Committee (the “Compensation Committee”) of the
Company’s Board of Directors, and in accordance with the Company’s executive compensation review process, make changes
to the Base Salary.
5.2
Incentive Bonus. During the Agreement Period, Executive shall be eligible to participate in any incentive bonus plan in effect
for officers and executives of the Company (the "Incentive Bonus Plan"), under which Executive will receive a performance-based
bonus the amount of which, if any, will be determined and paid based upon satisfaction of criteria determined for each calendar year for
officers and executives by recommendation of the CEO and approval of the Compensation Committee. During the Agreement Period, Executive's
target payout percentage under the Incentive Bonus Plan will be 50% of his then-current Base Salary, prorated for the portion of the fiscal
year during which Executive is employed by the Company. Goals for each year are to be set during the first quarter. Any bonus amounts
payable to Executive under the Incentive Bonus Plan shall be paid at the same time as annual bonuses are paid to the Company's other executive
officers after the end of the year in which the bonus was earned, but no later than April 15 following the end of that year.
5.3
Equity Incentive Plan. During the Agreement Period, Executive shall be eligible to participate in any equity incentive plans
maintained by the Company from time to time (the "Company Equity Plans") at a target level of 100% of his then-current
Base Salary, subject to the annual review and approval by CEO and the Compensation Committee of the Company's Board of Directors.
5.4
Initial Equity Award. On the Effective Date, the Company shall issue to Executive at no cost 53,247 restricted Class A-3 shares
(the "Initial Equity Award"). The Initial Equity Award restricted stock will vest (a) 25% upon closing of an initial
public offering (“IPO”) of Company stock, and 6.25% on subsequent quarters) subject to Section 6.8 below; and
(b) 100% upon a Change of Control in the absence of an IPO, subject to Section 6.8 below.
5.5
Benefit Plans. During the Agreement Period, Executive shall be eligible to participate in all pension, 401(k) and other employee
benefit plans, policies and programs for the benefit of executive officers ("Benefit Plans"). The Company reserves the
right to modify, suspend or discontinue any Benefit Plans at any time without notice to or recourse by Executive, so long as such action
is taken generally with respect to other similarly situated executives employed by the Company.
5.6
Paid Time Off ("PTO"). During the Agreement Period, Executive shall be entitled to twenty-five
(25) days of PTO, in addition to any company-recognized holidays, or family or medical leave to which he is entitled under the Company
Benefit Plans or by law.
5.7
Expense Reimbursement. During and in respect of the Agreement Period, Executive shall be entitled to receive reimbursement
for reasonable business expenses incurred by Executive in performing his duties and responsibilities hereunder, including without limitation
travel, parking, business meetings and professional dues, incurred and substantiated in accordance with the policies and procedures established
from time to time by the Company for senior executives of the Company.
6.
Termination.
6.1 Termination
Due to Death. Upon Executive's death, Executive's estate or his legal representative, as the case may be, shall be entitled
to: (a) any Base Salary earned but unpaid as of the date of death; (b) any other payments and/or benefits which Executive or
Executive's legal representative is entitled to receive under any of the Benefit Plans; (c) all shares in the Company vested prior
to the date of such termination; and (d) a bonus payable under the Incentive Bonus Plan for the fiscal year in which the termination
occurred, prorated for the portion of such fiscal year through the date of termination and payable within thirty (30) days after the
date of termination of employment.
6.2
Termination Due to Executive's Disability. If Executive's condition meets the definition of Disability above,
the Company may terminate Executive's employment upon written notice. If terminated by the Company as herein provided, the Company shall
pay to Executive: (a) any Base Salary earned but unpaid as of the date of Executive's termination due to Disability; (b) any other payments
and/or benefits which Executive or Executive's legal representative is entitled to receive under any of the Benefit Plans; (c) all shares
in the Company vested prior to the date of such termination; and (d) a bonus payable under the Incentive Bonus Plan for the fiscal year
in which the termination occurred, prorated for the portion of such fiscal year through the date of termination and payable within thirty
(30) days after the date of termination of employment.
6.3
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive's employment
without Cause during the Agreement Period, or Executive may terminate his employment for Good Reason during the Agreement Period. In either
such event, Executive shall be entitled to the following compensation: Upon execution of a general release of claims against the Company
in a form acceptable to the Company and after the expiration of any applicable rescission or revocation period, Executive will receive:
(a) Base Salary in effect at the time of the termination for a period of twelve (12) months, in the manner and at such times as the Base
Salary otherwise would have been payable to Executive; (b) a bonus at the "target bonus" level, prorated for the portion of
such fiscal year through the date of termination and payable within thirty (30) days after the date of termination of employment; (c)
all shares in the Company vested prior to the date of such termination; (d) vesting of any unvested incentive grants granted under the
Company's Equity Incentive Plans (including without limitation the Initial Equity Award); and (d) any other payments and/or benefits which
Executive is entitled to receive under any of the Benefit Plans.
Notwithstanding the foregoing, certain
payments under this Section 6.3 may be delayed pursuant to Section 7.2.
6.4
Termination in Connection with Change of Control. If Executive is an active and full-time employee at the time of a Change
of Control and within twelve (12) months after the Change of Control, (a) Executive's employment is involuntarily terminated by the Company
or any successor employer resulting from the Change of Control for any reason other than death, Disability or Cause, or (b) Executive
resigns from the Company or any such successor for Good Reason, then Executive shall be entitled to the following compensation: Upon
execution of a general release of claims against the Company in a form acceptable to the Company and after the expiration of any applicable
rescission or revocation period, Executive will receive: (a) Base Salary in effect at the time of the termination a period of twelve
(12) months following the termination of Executive's employment, in the manner and at such times as the Base Salary otherwise would have
been payable to Executive; (b) a bonus at the "target bonus" level, prorated for the portion of such fiscal year through the
date of termination and payable within thirty (30) days after the date of termination of employment; (c) all shares in the Company vested
prior to the date of such termination; (d) vesting of any unvested incentive grants granted under the Company’s Equity Incentive
Plans (including without limitation the Initial Equity Awards); and (d) any other payments and/or benefits which Executive is entitled
to receive under any of the Benefit Plans.
Notwithstanding the foregoing, certain
payments under this Section 6.4 may be delayed pursuant to Section 7.2.
6.5
Termination by the Company for Cause. The Company may terminate Executive's employment hereunder for Cause. In such event,
Executive only shall be entitled to: (a) any Base Salary earned but unpaid through the date of such termination; (b) all shares in the
Company vested prior to the date of such termination; and (c) any other earned and vested payments and/or benefits that Executive is entitled
to receive under any of the Benefit Plans.
6.6 Voluntary
Resignation Without Good Reason. If Executive voluntarily resigns during the Agreement Period without Good Reason, then
Executive only shall be entitled to: (a) Base Salary earned but unpaid as of the date of Executive's termination; (b) all shares in
the Company vested prior to the date of such termination; and (c) any other payments and/or benefits which Executive is entitled to
receive under any of the Benefit Plans.
6.7
Non-Renewal. If the Company provides notice of non-renewal in accordance with Section 3, then upon execution of a general
release of claims against the Company in a form acceptable to the Company and after the expiration of any applicable rescission or revocation
period, Executive shall be entitled to (a) Base Salary in effect for the remainder of the Agreement Period; (b) a bonus at the "target
bonus" level, prorated for the portion of such fiscal year through the date of termination and payable within thirty (30) days after
the date of termination of employment; (c) all shares in the Company vested prior to the date of such termination; (d) if an IPO of the
Company stock has not occurred prior to termination of Executive’s employment pursuant to such non-renewal, vesting of 50% of the
unvested restricted stock granted under the Initial Equity Award; (e) if an IPO of the Company stock has occurred prior to the termination
of Executive’s employment pursuant to such non-renewal, vesting of all unvested restricted stock granted under the Initial Equity
Awards; and (f) any other payments and/or benefits which Executive is entitled to receive under any of the Benefit Plans. If Executive
provides notice of non-renewal in accordance with Section 3, then such non-renewal shall be treated as a Voluntary Resignation
without Good Reason under Section 6.6.
6.8
Vesting of Initial Equity Awards Upon Retirement.
(a)
Retirement Prior to IPO. In the event that Executive retires from employment by the Company on or after age 62 (after having provided
12-month notice) prior to the closing of an IPO of the Company's Common Stock, there shall be no forfeiture of any unvested restricted
stock granted as part of the Initial Equity Awards, and any such unvested restricted stock granted as part of the Initial Equity Awards
shall vest (a) 100% upon the effective date of the closing of such IPO of the Company’s common stock; and (b) 100% upon a Change
of Control (in the absence of an IPO).
(b) Retirement
After IPO. In the event that Executive retires from employment by the Company on or after age 62 (after having provided the 12-month
notice) after the closing of an IPO of the Company’s common stock, any then-unvested restricted stock granted as part of the Initial
Equity Awards shall vest 100% upon the effective date of such retirement.
7.
Severance Payment Limitations or Possible Delay Under Code Section 409A.
7.1
Notwithstanding any other provision of this Agreement, the Company and Executive intend that any payments, benefits or other provisions
applicable to this Agreement comply with the payout and other limitations and restrictions imposed under Section 409A of the Code ("Section
409A"), as clarified or modified by guidance from the U.S. Department of Treasury or the Internal Revenue Service-in each case
if and to the extent Section 409A is otherwise applicable to this Agreement and such compliance is necessary to avoid the penalties otherwise
imposed under Section 409A. In this regard, the Company and Executive agree that the payments, benefits and other provisions applicable
to this Agreement, and the terms of any deferral and other rights regarding this Agreement, shall be interpreted and deemed modified if
and to the extent necessary to comply with the payout and other limitations and restrictions imposed under Section 409A, as clarified
or supplemented by guidance from the U.S. Department of Treasury or the Internal Revenue Service-in each case if and to the extent Section
409A is otherwise applicable to this Agreement and such compliance is necessary to avoid the penalties otherwise imposed under Section
409A.
7.2
In the event any portion of any payments due under Section 6.3 (in the event of termination by the Company without Cause or
by Executive for Good Reason), Section 6.4 (in the event of certain terminations after a Change of Control) or Section 6.7
(in the event of Non-Renewal by the Company) would exceed the sum of the applicable limited separation pay exclusions as determined pursuant
to Code Section 409A, then payment of the excess amount shall be delayed until the first regular payroll date of the Company following
the six (6) month anniversary of the Executive's date of termination (or the date of his death, if earlier), and shall include a lump
sum equal to the aggregate amounts that Executive would have received had payment of this excess amount commenced as provided above following
the date of termination. If Executive continues to perform any services for the Company (as an employee or otherwise) after the date of
termination, such six-month period shall be measured from the date of Executive's "separation from service" as defined pursuant
to Code Section 409A.
7.3
Executive does not have any right to make any election regarding the time or form of any payment due under Sections 6.3, 6.4,
or 6.7 or any other provision of this Agreement.
7.4 The Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes, and other amounts
required by applicable law to be withheld by the Company.
8.
Limitation on Parachute Payments.
8.1
Limitation. Notwithstanding anything stated in this Agreement, or any other plan, arrangement or agreement to the contrary,
if any of the Covered Payments constitute Parachute Payments and would, but for this Section 8 be subject to the Excise Tax, then
the Covered Payments shall be payable either (a) in full or (b) reduced to the minimum extent necessary to ensure that no portion of the
Covered Payments is subject to the Excise Tax, whichever of the foregoing (a) or (b) results in Executive's receipt on an after-tax basis
of the greatest amount of benefits after taking into account the applicable federal, state, local and foreign income, employment and excise
taxes (including the Excise Tax).
8.2
Possible Reduction. If necessary, the Covered Payments shall be reduced in a manner that maximizes Executive's economic position.
In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and
where two economically equivalent amounts are subject to reduction but are payable at different times, such amounts shall be reduced on
a pro rata basis but not below zero.
8.3
Accountants. Any determination required under this Section 8 shall be made in writing in good faith by the Accountants,
which shall provide detailed supporting calculations to the Company and Executive as required by the Company or Executive. The Company
and Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to
make a determination under this Section 8. The Company shall be responsible for all fees and expenses of the Accountants.
8.4
Overpayment or Underpayment. It is possible that after the determinations and selections made pursuant to this Section 8
Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 8 ("Overpayment")
or less than the amount provided under this Section 8.4 ("Underpayment").
(a) In the event
that: (i) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company
or Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (ii) it is established
pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved
that an Overpayment has been made, then Executive shall pay any such Overpayment to the Company.
(b)
In the event that: (i) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has
occurred or (ii) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly
by the Company to or for the benefit of Executive.
9.
Successors.
9.1
The Executive. This Agreement is personal to Executive and, without the prior express written consent of the Company, shall
not be assignable by Executive, except that Executive's rights to receive any compensation or benefits under this Agreement may be transferred
or disposed of pursuant to testamentary disposition, intestate succession or pursuant to a domestic relations order. This Agreement shall
inure to the benefit of and be enforceable by Executive's heirs, beneficiaries and/or legal representatives. Except as otherwise provided
in this Agreement, transfers or disposition of any equity grants shall be governed by the terms and conditions of the applicable award
agreement and equity plan.
9.2
The Company. This Agreement shall inure to the benefit of and be binding upon the Company and its respective successors and
assigns.
10. Confidential Information.
10.1 Non-Disclosure. Executive
acknowledges that the Company continually develops Confidential Information (as defined below), that Executive will obtain Confidential
Information during employment with the Company, that Executive may develop Confidential Information for the Company, and that Executive
has learned and may learn of Confidential Information during the course of employment. Executive will comply with the policies and procedures
of the Company for protecting Confidential Information obtained from the Company and shall not use or disclose to any person, corporation
or other entity (except as required by applicable law or for the proper performance of the regular duties and responsibilities of Executive
for the Company) any Confidential Information obtained by Executive during employment with the Company, or other association with the
Company. Executive understands that this restriction shall continue to apply to Confidential Information following termination of Executive's
employment, regardless of the reason for such termination.
The Company hereby
advises Executive as follows under the federal Defend Trade Secrets Act: An individual shall not be held criminally or civilly liable
under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State,
or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating
a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is
made under seal. In addition, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of
law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the
individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant
to court order. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of
trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).
10.2 "Confidential
Information." For purposes of this Agreement, "Confidential Information" means any and all information
of the Company or concerning the business or affairs of the Company that is not generally known by others with whom any of them
compete or do business, or with whom any of them plan to compete or do business. Confidential Information includes, without
limitation, such information relating to: (a) the development, research, testing, marketing, strategies, and financial activities of
the Company, (b) the products and services, present and in contemplation, of the Company, (c) inventions, processes, operations,
administrative procedures, databases, programs, systems, flow charts, software, firmware and equipment used in the business of the
Company, (d) the costs, financial performance and strategic plans of the Company, (e) the people and organizations with whom the
Company has or had business relationships and the substance of those relationships. Confidential Information also includes all
information that the Company received belonging to others with any understanding, express or implied, that it would not be
disclosed. Failure to mark any of the Confidential Information as confidential or proprietary will not affect its status as
Confidential Information.
10.3
Documents. All documents, records, tapes and other media of every kind and description relating to the business, present or
otherwise, of the Company and any copies, in whole or in part, thereof ("Documents"), whether or not prepared by Executive,
shall be the sole and exclusive property of the Company. Executive shall safeguard all Documents and shall surrender to the Company at
the time Executive's employment terminates, or at such earlier time or times as the President, Chief Executive Officer, or Board or their
designees may specify, all Documents, Confidential Information, and Company property in good working condition then in Executive's possession
or control.
10.4
Former Employer Information. Executive agrees that Executive will not, during Executive's employment with the Company, improperly
use or disclose any proprietary information or trade secrets or any other property of any former or concurrent employer or other person
or entity and that Executive will not bring onto the premises of the Company any proprietary information belong to any such employer,
person or entity.
11. Restrictive
Covenants. In return for the Company's (a) promise to grant Executive access to certain of the Company's Confidential
Information, and (b) the Company's actual grant to Executive of access to certain of its Confidential Information, (c) the
opportunity for continued employment as the Company's President and Chief Executive Officer, and (d) the valuable pay and benefits
in this Agreement that are intended, in part, to reward Executive for developing and protecting the Company's Confidential
Information, Executive makes the following commitments and Executive acknowledges these benefits constitute adequate and sufficient
consideration for the restrictions in this Agreement.
11.1
Non-Solicitation. During the Agreement Period and for a period of one year after any termination of employment hereunder for
any reason, Executive will not, directly or indirectly, (a) induce or attempt to induce any employee of the Company to leave the employ
of the Company or to breach that person's contract (if any) with the Company, (b) in any way interfere with the relationships between
the Company and any such employee of the Company, (c) employ or otherwise engage as an employee, independent contractor or otherwise any
such employee of the Company, or (d) induce or attempt to induce any customer, supplier, licensee or other person or entity that has done
business with the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer,
supplier, licensee or other business entity and the Company.
11.2
Mutual Non-Disparagement. During Executive's employment with the Company and at all times following Executive's termination
of employment for any reason, (a) Executive covenants and agrees that he will not, nor induce others to, disparage the Company, its past
and present officers, directors, employees, products or services and (b) the Company shall not, and shall instruct members of its Board
and the senior executives of the Company not to, disparage Executive. Nothing herein shall prohibit (a) the Company from complying with
federal disclosure obligations; (b) either Party from disclosing that Executive is no longer employed by the Company, (c) either Party
from responding truthfully to any governmental investigation, legal process or inquiry related thereto, or (d) either Party from making
a good faith rebuttal of the other party's untrue or misleading statement. For purposes of this Agreement, the term "disparage"
means any statements, whether orally, in writing or through any medium (including, but not limited to, the press or other media, computer
networks or bulletin boards, or any other form of communication), that intentionally disparage, defame, or otherwise damage or assail
the reputation, integrity or professionalism of the other Party.
11.3
Notification of Restrictive Covenants. Executive acknowledges that the Company may serve notice upon any party with whom Executive
accepts employment, a consulting engagement, engagement as an independent contractor, partnership, joint venture or other association
if the Company reasonably believes that Executive's activities may constitute a violation of Executive's obligations under Section
11.1 above. Such notice may inform the recipient that Executive is party to this Agreement and may include a copy of this Agreement
or relevant portions thereof.
11.4
Injunctive Relief. Executive acknowledges and agrees that the Company will have no adequate remedy at law, and would be irreparably
harmed, if Executive breaches or threatens to breach any of the provisions of this Section 11. Executive agrees that the Company
shall be entitled to equitable and/or injunctive relief to prevent any breach or threatened breach of this Section 11, and to specific
performance of each of the terms of such Section in addition to any other legal or equitable remedies that the Company may have. Executive
further agrees that he shall not, in any equity proceeding relating to the enforcement of the terms of this Section 11, raise the
defense that the Company has an adequate remedy at law. The parties understand that both damages and injunctions will be proper modes
of relief and are not to be considered as alternative remedies.
11.5
Special Severability. The terms and provisions of this Section 11 are intended to be separate and divisible provisions
and if, for any reason, any one or more of them is held to be invalid or unenforceable, neither the validity nor the enforceability of
any other provision of this Agreement shall thereby be affected. It is the intention of the parties to this Agreement that the potential
restrictions on Executive's future employment imposed by this Section 11 be reasonable in both duration and geographic scope and
in all other respects. To the extent any provision of this Agreement is judicially determined to be unenforceable, a court of competent
jurisdiction may reform any such provision to make it enforceable. If for any reason any court of competent jurisdiction shall find any
provisions of this Section 11 unreasonable in duration or geographic scope or otherwise, Executive and the Company agree that the
restrictions and prohibitions contained herein shall be effective to the fullest extent allowed under applicable law in such jurisdiction.
11.6
Tolling. The duration of the above restrictions in this Section 11.1 and Section 11.2 will be extended for a
period equal to the duration of any breach or default of such covenant by Executive.
11.7
Replacement of Prior Restrictive Covenants. Effective on the Effective Date, the restrictive covenants and other terms set
forth in this Section 11 shall replace and supplant any and all restrictive covenants and related terms in any of the Executive’s
Prior Employment Agreement or other Agreements or Plans ("Prior Restrictive Covenants"), and all such Prior Restrictive
Covenants shall be null and void and of no further force or effect.
12.
Miscellaneous.
12.1
Applicable Law & Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota,
applied without reference to principles of conflict of laws. The venue for any dispute relating to this Agreement shall be in the state
and/or federal courts in Hennepin County, Minnesota. Executive hereby (a) waives any objection that Executive might have now or hereafter
to the foregoing jurisdiction and venue of any such litigation, action or proceeding, (b) irrevocably submits to the exclusive jurisdiction
of any such court set forth above in any such litigation, action or proceeding, and (c) waives any claim or defense of inconvenient forum.
12.2
Amendments. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.
12.3
Indemnification. The Company agrees that if Executive is made a party or is threatened to be made a party, or is required to
appear as a witness to any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding"),
by reason of the fact that he is or was an employee or officer of the Company, whether or not the basis of such Proceeding is alleged
action in an official capacity as an officer, employee or agent while serving as an officer, employee or agent, he shall be indemnified
and held harmless by the Company (unless Executive's actions or omissions constitute gross negligence or willful misconduct) to the fullest
extent authorized by law, as the same exists or may hereafter be amended, against all costs and expenses incurred or suffered by Executive
in connection therewith, and such indemnification shall continue as to Executive even if Executive has ceased to be an officer or agent,
or is no longer employed by the Company and shall inure to the benefit of his heirs, executors and administrators. Executive agrees to
fully cooperate with the Company should any Proceeding commence and for the duration of such Proceeding. On the Effective Date, the Company
will cause Executive to be covered and named as an insured on its Director and Officer Liability Insurance policy, which the Company represents
to be in force and in good standing at the time this Agreement is executed.
12.4
Notices. All notices and other communications hereunder shall be in writing and shall be given by hand-delivery to the other
parties or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
To the Company:
Park Dental Partners, Inc.
2200 County Road C West, Suite 2210
Roseville, MN 55113
Attn: CEO
If to Executive:
Christopher J. Bernander
Last known address on file with the Company,
or to such other address as (a) indicated
in the Company's employment records, or (b) any party shall have furnished to the others in writing in accordance herewith. Notices and
communications shall be effective when actually received by the addressee.
12.5
Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
12.6
Captions. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect.
12.7
Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original instrument,
but all of which together shall constitute but one and the same Agreement.
12.8
Entire Agreement; Previous Agreements Superseded. This Agreement contains the entire agreement between the parties concerning
the subject matter hereof and supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written
or oral, between the parties with respect thereto. There are no representations, understandings, or agreements by or between the parties
which are not contained within the four corners of this Agreement. Notwithstanding the foregoing, separate agreements between Executive
and the Company relating to equity awards, stock awards or non-qualified stock options remain in full force and effect, except to the
extend modified in this Agreement.
12.9
Survivorship. The respective rights and obligations of the parties hereunder shall survive any termination of Executive's employment
under this Agreement for any reason to the extent necessary to the intended provision of such rights and the intended performance of such
obligations.
12.10
Attorneys' Fees and Costs. In the event of any claim, controversy, or dispute arising out of or relating to this
Agreement, or breach hereof, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in connection with
any court proceeding.
12.11
No Waiver. No term or condition of this Agreement will be deemed to have been waived nor shall there be any estoppel to enforce
any provision hereof, except by a written instrument executed by the party charged with waiver or estoppel. The Company's delay, waiver
or failure to enforce any of the terms of this Agreement or any similar agreement in one instance shall not constitute a waiver of its
rights hereunder with respect to other violations of this or any other agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed
this Employment Agreement to be effective as of the date first set forth above.
| |
PARK DENTAL PARTNERS, INC. |
| |
|
| |
By: |
/s/ Peter
G. Swenson |
| |
Name: |
Peter G. Swenson |
| |
Title: |
CEO |
| |
|
| |
EXECUTIVE |
| |
|
| |
/s/
Christopher J. Bernander |
| |
Christopher
J. Bernander |
Exhibit 10.20
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
("Agreement") is made and entered into in the City of Roseville, Minnesota, effective as of the 1st day of January, 2011, between
Alan S. Law, D.D.S., Ph.D., ("Employee") and DENTAL SPECIALISTS OF MINNESOTA, PLLC, a Minnesota professional limited liability
company (the "Practice").
W I TN E S S E T H:
WHEREAS,
the purpose of the Practice is to provide specialty dentistry services to its patients through the services of registered and licensed
dentists and Employee is a dentist licensed to practice in the State of Minnesota; and
WHEREAS, the Practice
desires to employ the services of Employee, and Employee is willing to enter into a contract of employment under the terms and conditions
stated hereafter, and such contract supersedes all previously existing employment agreements between the parties;
NOW,
THEREFORE, in consideration of the foregoing recitals, the mutual promises contained herein and the mutual benefit to be gained by the
performance hereof, it is hereby agreed:
1.)
Employment - The Practice hereby employs Employee to provide services as a dentist on behalf of the Practice, and Employee hereby
accepts employment to provide such services upon the terms and conditions hereinafter set forth.
2.)
Term - This Agreement shall be for a period from January 1, 2011 through December 31, 2011 ("Original Term"), subject,
however, to termination during such Original Term, as provided herein. This Agreement shall be renewed automatically for succeeding periods
of one (1) year (each a "Renewal Term"), each on the same terms and conditions as contained herein.
3.)
Compensation - To generate the highest degree of incentive, the Practice shall pay compensation to Employee to be computed in
accordance with the terms and conditions of that certain Professional Employee Compensation Plan adopted by the Board of Governors of
the Practice effective January 1, 2011 (the "Compensation Plan"), as may be amended from time to time.
4.)
Illness, Accident, or Disability - In the event Employee is absent from work because of sickness or accident not resulting in
Total Disability (as defined herein), this Agreement will continue in full force and effect without adjustment. In the event Employee
becomes Totally Disabled, and such Total Disability continues for a period of six (6) consecutive months with Employee not being able
to perform substantially all of the services for the Practice as provided hereunder, this Agreement shall, at the end of such six (6)
month period, be automatically terminated. Following a Total Disability, the Practice, in its sole discretion, shall determine the extent
Employee is able to work and the specific duties to be performed by Employee and the corresponding level of compensation to be paid to
Employee for such services.
5.)
Duties and Responsibilities - Employee is engaged as a dentist to perform professional dental services on a Full Time basis. The
precise services of Employee shall be assigned and directed by the Practice and may be extended or curtailed, from time to time, at the
direction of the Practice, including, but not limited to, restricting access to patients if the Practice determines it is in its best
interest to do so.
Regardless
of whether Employee is elected an officer or governor, as a Professional Employee, Employee and the other Professional Employees shall
have the following continuous duties: (a) mentoring non-Professional Employees of the Practice, including consulting with them about
patients and cases and assisting them in their professional development; (b) serving on committees formed by the Board of Governors to
manage various aspects of the Practice's operations; (c) supervise and direct the Practice's non-dentist staff; and (d) market and enhance
the reputation and image of the Practice within the community.
During
the Original Term or any Renewal Term of this Agreement, Employee agrees to devote Employee's Full Time and best efforts to the practice
and affairs of the Practice and to perform such services and duties loyally to the Practice and as may from time to time be assigned
to Employee by the Practice. It is agreed that Employee's services are not unique, and other dentists may be hired to perforn1 the same
or similar services. Any undertaking to perform professional dental services for third parties shall be made by the Practice in its name,
or by Employee as agent for the Practice. Employee shall not perform dental care services, dental/legal services or research activities
individually or for any other person, firm or corporation, either as an employee of such other entity or as an independent contractor,
without the prior written consent of the Board of Governors of the Practice. Employee shall not enter into any personal service contract,
oral or written, wherein a person or agency other than the Practice has the right to designate the employee of the Practice who is to
perform the services required thereby. Employee shall not enter into any contract whatsoever on behalf of the Practice, except as expressly
authorized by the Board of Governors of the Practice.
Employee
agrees to comply with the reasonable and general standards and policies of the Practice in every respect. Employee shall be subject to
the supervision and direction of the Practice's Board of Governors as to all matters relating to the performance of Employee's services
as a licensed dentist, including, but not limited to the following:
| (a) | Decisions
on the types of cases which shall be handled by the Practice; |
| (b) | Standards
to be followed in employing and discharging team members; |
| (c) | Determination
of salaries of employees; |
| (d) | Decisions
on additional compensation for exceptional performance; |
| (e) | Decisions
as to promotion of employees; |
| (f) | Work
schedules and standards; |
| (h) | Standards
for use in billing for services rendered and submission of bills; |
| (i) | Determination
of requirements for office space and necessary nonprofessional staff and facilities; and |
| | | |
| | (j) | Supervision of accounts,
records and confidential records of patients. |
6.)
Option to Reduce Work Schedule - Employee shall have the option to reduce Employee's clinical work schedule to no less than twenty-one
(21) hours per week by giving the Practice at least twelve (12) months prior written notice of such reduction. The notice must contain
the number of hours per week of the proposed work schedule that Employee desires to work.
7.)
Fees - Except as from time to time determined by the Practice's Board of Governors, all fees or funds resulting from or received
by the Practice or Employee as payment for the performance of professional services or professional activities of any type by Employee
shall accrue and belong to the Practice, and shall be subject to the control and management of the Practice's Board of Governors. To
the extent Employee receives payment directly for any such services or activities, Employee hereby acknowledges and agrees that such
amounts are the exclusive property of the Practice and further agrees to promptly pay such amounts to the Practice. All rights and income
resulting from any and all inventions and other intellectual property of Employee are the sole property of Employee.
8.)
Working Facilities - The Practice shall furnish Employee with all gowns, instruments, equipment, supplies, office space, office
help and such other items relating to Employee's employment as are determined useful and necessary by the Practice. Except as may otherwise
be determined by the Practice, Employee shall maintain office space in Employee's home, it being understood that such office space will
be maintained for the benefit of the Practice.
9.)
Indemnity and Malpractice Insurance - Employee shall hold harmless and indemnify the Practice, its successors and assigns, from
and against any and all liabilities, costs, damages, expenses, and attorneys' fees resulting from or attributable to any and all acts
and omissions of Employee giving rise to a Claim Adjustment (as set forth in the Compensation Plan); provided, however, that, to the
extent that any such liabilities, costs, damages, expenses and attorneys' fees are compensated for by insurance purchased by the Practice,
Employee shall not be required to reimburse the Practice or insurer for the same.
The
Practice shall carry and pay the premiums on malpractice indemnity insurance providing coverage for both the Practice and Employee during
the Original Term and each Renewal Term of Employee's employment, with such limits as shall be from time to time prescribed by the Practice's
Board of Governors. If malpractice indemnity insurance is purchased which provides individual coverage for Employee on a "claims
made" basis or in the form of a "reporting endorsement" (tail coverage) after termination of Employee's employment, Employee
shall pay the premiums for such tail coverage; provided, however, that the Practice shall pay for such tail coverage upon the occurrence
of any of the following events:
| (a) | The
death of Employee while employed hereunder; or |
| (b) | Employee's
retirement from the practice of dentistry with the Practice due to Total Disability. |
10.)
Expenses - The Practice shall pay membership license fees and dues for such professional societies as the Practice's Board of
Governors shall from time to time determine. At the discretion of the Practice, Employee agrees to reimburse Practice for all prepaid
dues and license fees incurred on behalf of Employee and existing on the date of termination of Employee's employment.
In addition,
the Practice shall reimburse Employee, to the extent as may be determined by the Board of Governors from time to time, for the following
expenses: travel expenses, expenses of conventions, meetings, and continuing education, entertainment expenses, and other miscellaneous
professional expenses which are necessarily incurred by Employee in connection with the proper discharge of Employee's duties hereunder.
It is
understood and agreed that Employee will expend funds on such education, promotion, and entertainment as will reasonably benefit the
Practice.
11.)
Disallowed Expenses - In the event that any reimbursed expenses are disallowed in whole or in part as deductible expenses for
federal income tax purposes, Employee shall reimburse the Practice for any tax, penalties, and interest plus any accounting or legal
fees resulting therefrom, but shall not be responsible for payment back to the Practice of the actual disallowed amount. The Practice
will notify Employee of such a disallowance and permit Employee or Employee's designated representative to take control of such a controversy.
Employee may request that the Practice litigate the issue, provided that Employee reimburse the Practice for any and all costs and expenses
in connection therewith. Employee's obligation arises hereunder to reimburse upon whichever occurs first: a final determination of liability,
a settlement of such an issue, or a refusal of Employee to bear the expense with respect thereto. Employee's obligation, if any, to reimburse
must be paid within three (3) months or at the Practice's option may be deducted from compensation due and payable to Employee.
12.)
Vacations - Employee shall be entitled to such annual vacations as may from time to time be determined by the Practice as part
of a consistent vacation policy for all Professional Employees. The compensation to which Employee is entitled hereunder, as calculated
in accordance with the terms and conditions of the Compensation Plan, shall be paid to Employee during the time of Employee's vacation.
13.) Events
of Termination - This Agreement shall terminate as follows:
(a) By
mutual written agreement of the parties;
(b)
Upon the death of Employee;
(c) Upon
one hundred and eighty (180) days' written notice by either party;
(d)
With Cause (other than breach of this Agreement), upon written notice to Employee by the Practice;
(e)
At the option of the non-breaching party, upon the expiration of ten (10) days following written notice to breaching party of a
material breach of any provision in this Agreement and failure of such breaching party to cure;
(f)
Upon the insolvency or bankruptcy of the Practice;
(g) Following
a Total Disability, if Employee does not return to work on a Full Time basis (as more specifically set forth in Section 4 above); or
(h)
Upon Employee becoming required to sell Class B units of the Practice to the Practice pursuant to an agreement between Employee and the
Practice.
14.)
Effect of Termination. Notwithstanding the termination of this Agreement, the parties shall be required to carry out any provisions
hereof which contemplate performance by them subsequent to such termination. Such termination shall not affect any liability or other
obligations which shall have accrued prior to such termination, including, but not limited to, any liability for loss or damage on account
of default. In the event this Agreement is terminated by the Practice upon one hundred and eighty (180) days' written notice to Employee,
the Practice shall have the right, in its sole and absolute discretion, to (a) determine which duties and activities Employee will be
permitted or required to do within such one hundred and eighty (180) day period, and/or (b) treat such termination as being effective
on the first day after such written notice by paying Employee an amount equal to three months average compensation earned by Employee
under Section 3 hereof, such average monthly compensation to be based on the prior six month period ( or lesser period if Employee has
been employed by the Practice less than six months).
15.)
Records and Files - In the event of the termination of employment of Employee, possession of each corporate record and file, including
such document and file of a patient, shall be retained by the Practice. However, Employee shall have the right at any time and from time
to time after termination of Employee's employment, to inspect, and at Employee's own expense to have copies prepared of, all patient
records owned by the Practice at the time of termination of employment relating to patients for whom Employee provided services, so long
as such activities: (i) coupled with Employee's other actions do not breach Section 18 below; (ii) do not offend professional ethics;
or (iii) do not violate the Practice's legal responsibilities and obligations under applicable state and federal laws, including, without
limitation, the Health Insurance Portability and Accountability Act of 1996 ("HIP AA") and regulations related thereto. If
any patient advises the Practice in writing that he or she desires delivery of copies of records and files pertaining to him or her to
Employee, such advice shall be complied with, to the extent possible, at such patient's expense. All copies to be provided hereunder
shall be made at the offices of the Practice by personnel designated by the Practice.
16.)
Confidentiality - Employee may have access to Confidential Information which the Practice desires to protect at all times. Therefore:
| (a) | Employee
understands, acknowledges, and agrees that: |
| (1) | Confidential
Information includes all types of information defined below; |
| (2) | Employee's
duties may involve the use of Confidential Information; |
| (3) | Practice
has expended substantial sums of money, time, and effort in developing such Confidential Information;
and |
| (4) | Practice
will be substantially harmed in the competitive marketplace if the Confidential Information
is used to its detriment or to the benefit of others. |
| (b) | In
recognition of the foregoing, Employee agrees that: |
| (1) | Employee
will not during or after employment with the Practice, directly or indirectly use or disclose
any Confidential Information to any other person, clinic or company, or in any way use for
Employee's benefit, or to the detriment of the Practice, any Confidential Information or
knowledge obtained during the course of Employee's employment with the Practice, except as
required in the conduct of the Practice's business or as authorized in writing by the Practice;
and |
| (2) | All
memoranda, notes, records, papers, and other documents, electronic and magnetic storage media,
and all copies thereof relating to the Practice's operation of its business and all objects
related thereto are and remain the property of the Practice; including, but not limited to,
those developed, investigated, or considered by the Practice. Employee will not copy or duplicate
any of the aforementioned documents or objects nor use any information contained therewith,
except for the Practice's benefit, either during or after Employee's employment. |
| (3) | "Confidential
Information" means any information not properly held in the public domain or compilation
of such information possessed by the Practice that derives independent economic value, actual
or potential, from not being generally known to, and not being readily ascertainable by proper
means by, the public, including, but not limited to: (a) any information not generally known
or readily ascertainable in the health care industry, regarding the Practice's research,
marketing, servicing, contracts, business systems, and techniques; (b) financial information
concerning the Practice and its patients, including, but not limited to, patient lists, information
concerning accounts receivable of the patients and third party payors of the Practice; (c)
quantity and type of services purchased by third party payors from the Practice; and (d)
any information that the Practice may from time to time designate as "confidential,"
"proprietary," or "trade secrets" which is not generally known in the
health care industry. |
17.)
Covenant Not to Compete - Employee and the Practice agree that the Practice would be substantially harmed if Employee were to
compete with the Practice following Employee's termination of employment with the Practice. Therefore, in consideration of the Practice
securing similar covenants not to compete from all Professional Employees and as an inducement to the Practice for entering into this
Agreement, Employee agrees as follows:
(a)
Following the termination of Employee's employment with the Practice for any reason, Employee agrees, for a period of two (2) years thereafter,
not to directly or indirectly own, manage, control, or accept any employment, either as an employee or independent contractor, in any
clinic, care center, or other organization or facility engaged in the rendering of dental services, in which Employee, or any of such
entities, is engaged in the rendering of dental services, within seven (7) miles of any Practice location at which Employee was regularly
providing dental services; and
(b)
During the Original Term and each Renewal Term of this Agreement, Employee shall not, directly or indirectly, own, manage, control, or
accept any employment, either as an employee or independent contractor, in any clinic, care center, or other organization or facility
engaged in the rendering of dental services in Minnesota or Wisconsin; provided, however, that ownership by Employee, as a passive investment,
of less than five percent ( 5%) of the outstanding shares of capital stock of any company listed on a national securities exchange or
publicly traded in the over-the-counter market shall not constitute a breach of this Section 18(b ); and
(c)
In addition, Employee agrees not to solicit employees of the Practice for employment or patients for a period of two (2) years following
the date of termination of Employee's employment with the Practice; and
(d)
Employee hereby acknowledges that the provisions of this Section 18 are special, unique and extraordinary in character and that any damages
to the Practice as a result of any violation of the provisions of this Section 18 cannot be adequately compensated by monetary damages.
Employee hereby acknowledges that in the event of any violations of the provisions of this Section 18, the Practice, in addition to any
and all of the rights and remedies available to it, shall be entitled to obtain specific performance and injunctive relief restraining
Employee from committing or continuing any violation of this Section 18;and
(e)
Employee and the Practice acknowledge that all of the restrictions set forth in this Section 18 have been carefully considered and negotiated
between the parties hereto. Specifically, Employee understands and acknowledges that a substantial number of the Practice's patients
to whom the Employee will be rendering professional services, and with whom the Employee will be developing a professional relationship
during the term of this Agreement, reside near the Practice's offices. The Practice and Employee also agree that if the Employee's employment
with the Practice terminates, the Practice will spend a considerable amount of time and expense attracting other qualified dentists to
serve its patients residing in such area. In light of these understandings and the other good and valuable consideration provided herein,
the receipt of which is hereby acknowledged, the Practice and Employee agree that the covenant not to compete provisions provided in
this Section 18 are reasonable, and will not unduly restrict the Employee's ability to find employment in the event of Employee's termination.
The Practice and Employee further agree that if any provision of this Section 18 is held in a final judgment or determination in any
court of law or administrative agency of competent jurisdiction to be overbroad or otherwise unenforceable in any respect, such overbroad
or otherwise unenforceable provision shall be deemed to be amended, and shall be binding upon Employee to the maximum extent deemed reasonable
and enforceable by such court or administrative agency; and
(f)
Employee and the Practice hereby agree and acknowledge that the provisions of Sections 11, 16, 17 and 18 shall survive termination of
this Agreement.
18.) Amendment;
Waiver - Except as otherwise set forth in the Compensation Plan, this Agreement shall not be modified or amended except in
writing signed by Employee and the Practice. No provision hereof may be waived except by an agreement in writing signed by the
waiving party. A waiver of any term or provision of this Agreement shall not be construed as a waiver of any other term or provision
or a waiver of any subsequent breach of the same term or provision.
19.)
Assignment - The rights and financial benefits of Employee under this Agreement may be assigned with prior written consent of
the Practice, but Employee may not assign Employee's responsibilities or obligations hereunder.
20.)
Notice - Any notice required or permitted to be given under this Agreement shall be sufficient if made in writing and sent by
registered or certified mail to the residence of Employee or to the principal office of the Practice, whichever shall be applicable.
21.)
Applicable Law - This Agreement was executed in the State of Minnesota, and the Practice and Employee agree that all questions
arising in connection with it shall be governed by the laws of the State of Minnesota, the Articles of Organization, Member Control Agreement
and the Operating Agreement of the Practice as they may be amended from time to time.
22.)
Entire Agreement - This Agreement contains the entire agreement between the parties relating to its subject matter; there being
no terms, provisions, conditions, covenants or agreements other than those contained herein.
23.)
Prior Agreements - All prior employment agreements between the parties are superseded by this Agreement.
24.)
Severability - No finding or adjudication that any provision of this Agreement is invalid or unenforceable shall affect the validity
or enforceability of the remaining provisions herein, and this Agreement shall be construed as though such invalid or unenforceable portions
were omitted.
25.)
Definitions - For purposes of this Agreement and the Compensation Plan, the following terms shall have the meanings hereinafter
set forth below. Other capitalized terms used herein that are not defined below shall have such meanings as described in the Compensation
Plan.
(a)
The term "Cause," for purposes of this Agreement, shall mean any of the following:
| (1) | The
revocation or suspension of Employee's license to practice dentistry in the State of Minnesota
or any other state where employee is licensed; |
| (2) | The
expulsion, suspension or disciplining of Employee as the final action of any professional
or scientific organization for misconduct; |
| (3) | The
resignation of Employee from any professional or scientific organization while under threat
of disciplinary action for misconduct; |
| (4) | The
inability of the Practice to obtain professional liability insurance covering Employee or
the inability of the Practice to obtain such professional liability insurance covering Employee
at rates comparable to those at which it is able to insure other Professional Employees. |
| | | |
| | (5) | A good faith determination by the Practice that Employee was dishonest or stole
property of the Practice; |
| (6) | A
good faith determination by the Practice of Employee's gross negligence in the execution
of Employee's duties under this Agreement; or |
| (7) | Employee's
commission of a crime or other act which would materially damage or is otherwise materially
adverse to the reputation and interests of the Practice. |
(b)
The term "Fiscal Year" shall mean the period from January 1 to December 31, or whatever other Fiscal Year the Practice may
adopt from time to time; provided, however, in the event this Agreement terminates, the final Fiscal Year shall end as of such date of
such termination.
(c)
The term "Full Time" shall mean maintaining a weekly clinical work schedule equal to or exceeding the threshold set by the
Practice from time to time as applies to Employee; provided, however, that this shall not be construed as prohibiting Employee from exercising
the option set forth in Section 6 hereinabove.
(d)
The term "Professional Employee" shall only refer to Employee and, as of the end of the Fiscal Year, all other employees of
the Practice employed pursuant to a written employment agreement in which they are designated as a "Professional Employee."
(e)
The terms "Total Disability" and "Totally Disabled" shall mean the inability of Employee, through physical sickness
or injury or mental illness or other medical cause, to perform Employee's Full Time duties herein for thirty (30) continuous days.
IN WITNESS
WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written.
| EMPLOYEE: |
|
PRACTICE: |
| |
|
DENTAL SPECIALISTS OF |
| |
|
MINNESOTA, PLLC |
| |
|
|
| /s/
Alan S. Law, D.D.S., Ph.D. |
|
By: |
/s/
Alan S. Law, D.D.S., Ph.D. |
| Name:
Alan S. Law, D.D.S., Ph.D. |
|
|
Its: Chief Manager |
Exhibit 10.21
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into in the City of Roseville, Minnesota, effective as of the 1st day of January, 2008, between CHRISTOPHER E. STEELE, D.D.S.
("Employee") and PDG, P.A., a Minnesota professional corporation (the "Practice").
W I TN E S S E T H:
WHEREAS, the purpose
of the Practice is to provide dentistry services to its patients through the services of registered and licensed dentists and Employee
is a dentist licensed to practice in the State of Minnesota; and
WHEREAS, the Practice desires to employ
the services of Employee, and Employee is willing to enter into a contract of employment under the terms and conditions stated hereafter,
and such contract supersedes all previously existing employment agreements between the parties;
NOW, THEREFORE,
in consideration of the foregoing recitals, the mutual promises contained herein and the mutual benefit to be gained by the performance
hereof, it is hereby agreed:
1.) Employment - The Practice
hereby employs Employee to provide services as a dentist on behalf of the Practice, and Employee hereby accepts employment to provide
such services upon the terms and conditions hereinafter set forth.
2.) Term - This Agreement
shall be for a period from January 1, 2008 through December 31, 2008 ("Original Term"), subject, however, to termination during
such Original Term, as provided herein. This Agreement shall be renewed automatically for succeeding periods of one (1) year (each a
"Renewal Term"), each on the same terms and conditions as contained herein.
3.) Compensation -To generate the highest
degree of incentive, the Practice shall pay compensation to Employee to be computed in accordance with the terms and conditions of that
certain Professional Employee Compensation Plan adopted by the Board of Directors of the Practice effective January 1, 2008 (the "Compensation
Plan"), as may be amended from time to time.
4.)
Illness, Accident, or Disability - In the event Employee is absent from work because of sickness or accident not resulting in
Total Disability (as defined herein), this Agreement will continue in full force and effect without adjustment. In the event Employee
becomes Totally Disabled, and such Total Disability continues for a period of six (6) consecutive months with Employee not being able
to perform substantially all of the services for the Practice as provided hereunder, this Agreement shall, at the end of such six (6)
month period, be automatically terminated. Following a Total Disability, the Practice, in its sole discretion, shall determine the extent
Employee is able to work and the specific duties to be performed by Employee and the corresponding level of compensation to be paid to
Employee for such services.
5.) Duties and Responsibilities
- Employee is engaged as a dentist to perform professional dental services on a Full Time basis. The precise services of Employee shall
be assigned and directed by the Practice and may be extended or curtailed, from time to time, at the direction of the Practice, including,
but not limited to, restricting access to patients if the Practice determines it is in its best interest to do so.
Regardless of whether Employee is elected
an officer or director, as a Professional Employee, Employee and the other Professional Employees shall have the following continuous
duties: (a) mentoring non-Professional Employees of the Practice, including consulting with them about patients and cases and assisting
them in their professional development; (b) serving on committees formed by the Board of Directors to manage various aspects of the Practice's
operations; (c) supervise and direct the Practice's non-dentist staff; and (d) market and enhance the reputation and image of the Practice
within the community.
During the Original Term or any Renewal Term of
this Agreement, Employee agrees to devote Employee's Full Time and best efforts to the practice and affairs of the Practice and to perform
such services and duties loyally to the Practice and as may from time to time be assigned to Employee by the Practice. It is agreed that
Employee's services are not unique, and other dentists may be hired to perform the same or similar services. Any undertaking to perform
professional dental services for third parties shall be made by the Practice in its name, or by Employee as agent for the Practice. Employee
shall not perform dental care services, dental/legal services or research activities individually or for any other person, firm or corporation,
either as an employee of such other entity or as an independent contractor, without the prior written consent of the Board of Directors
of the Practice. Employee shall not enter into any personal service contract, oral or written, wherein a person or agency other than the
Practice has the right to designate the employee of the Practice who is to perform the services required thereby. Employee shall not enter
into any contract whatsoever on behalf of the Practice, except as expressly authorized by the Board of Directors of the Practice.
Employee agrees to comply with the reasonable
and general standards and policies of the Practice in every respect. Employee shall be subject to the supervision and direction of the
Practice's Board of Directors as to all matters relating to the performance of Employee's services as a licensed dentist, including, but
not limited to the following:
| (a) | Decisions on the types of cases which shall be handled by the Practice; |
| (b) | Standards to be followed in employing and discharging team members; |
| (c) | Determination of salaries of employees; |
| (d) | Decisions on additional compensation for exceptional performance; |
| | | |
| | (e) | Decisions
as to promotion of employees; |
| (f) | Work schedules and standards; |
| (h) | Standards for use in billing for services rendered and submission of bills; |
| (i) | Determination of requirements for office space and necessary nonprofessional staff
and facilities; and |
| (j) | Supervision of accounts, records and confidential records of patients. |
6.) Option to Reduce Work Schedule
- Employee shall have the option to reduce Employee's clinical work schedule to no less than fourteen (14) hours per week by giving the
Practice at least twelve (12) months prior written notice of such reduction. The notice must contain the number of hours per week of
the proposed work schedule that Employee desires to work.
7.) Fees - Except as from time to time
determined by the Practice's Board of Directors, all fees or funds resulting from or received by the Practice or Employee as payment
for the performance of professional services or professional activities of any type by Employee shall accrue and belong to the Practice,
and shall be subject to the control and management of the Practice's Board of Directors. To the extent Employee receives payment directly
for any such services or activities, Employee hereby acknowledges and agrees that such amounts are the exclusive property of the Practice
and further agrees to promptly pay such amounts to the Practice. All rights and income resulting from any and all inventions and other
intellectual property of Employee are the sole property of Employee.
8.) Working Facilities - The
Practice shall furnish Employee with all gowns, instruments, equipment, supplies, office space, office help and such other items relating
to Employee's employment as are determined useful and necessary by the Practice. Except as may otherwise be determined by the Practice,
Employee shall maintain office space in Employee's home, it being understood that such office space will be maintained for the benefit
of the Practice.
9.) Indemnity and Malpractice Insurance
- Employee shall hold harmless and indemnify the Practice, its successors and assigns, from and against any and all liabilities, costs,
damages, expenses, and attorneys' fees resulting from or attributable to any and all acts and omissions of Employee giving rise to a
Claim Adjustment (as set forth in the Compensation Plan); provided, however, that, to the extent that any such liabilities, costs, damages,
expenses and attorneys' fees are compensated for by insurance purchased by the Practice, Employee shall not be required to reimburse
the Practice or insurer for the same.
The Practice shall carry and pay the
premiums on malpractice indemnity insurance providing coverage for both the Practice and Employee during the Original Term and each Renewal
Term of Employee's employment, with such limits as shall be from time to time prescribed by the Practice's Board of Directors. If malpractice
indemnity insurance is purchased which provides individual coverage for Employee on a "claims made" basis or in the form of
a "reporting endorsement" ( tail coverage) after termination of Employee's employment, Employee shall pay the premiums for
such tail coverage; provided, however, that the Practice shall pay for such tail coverage upon the occurrence of any of the following
events:
(a) The death of Employee while employed hereunder; or
(b)
Employee's retirement from the practice of dentistry with the Practice due to Total Disability.
10.) Expenses - The Practice
shall pay membership license fees and dues for such professional societies as the Practice's Board of Directors shall from time to time
determine. At the discretion of the Practice, Employee agrees to reimburse Practice for all prepaid dues and license fees incurred on
behalf of Employee and existing on the date of termination of Employee's employment.
In addition, the Practice shall reimburse
Employee, to the extent as may be determined by the Board of Directors from time to time, for the following expenses: travel expenses,
expenses of conventions, meetings, and continuing education, entertainment expenses, and other miscellaneous professional expenses which
are necessarily incurred by Employee in connection with the proper discharge of Employee's duties hereunder.
It is understood and agreed that Employee
will expend funds on such education, promotion, and entertainment as will reasonably benefit the Practice.
11.) Disallowed Expenses - In
the event that any reimbursed expenses are disallowed in whole or in part as deductible expenses for federal income tax purposes, Employee
shall reimburse the Practice for any tax, penalties, and interest plus any accounting or legal fees resulting therefrom, but shall not
be responsible for payment back to the Practice of the actual disallowed amount. The Practice will notify Employee of such a disallowance
and permit Employee or Employee's designated representative to take control of such a controversy. Employee may request that the Practice
litigate the issue, provided that Employee reimburse the Practice for any and all costs and expenses in connection therewith. Employee's
obligation arises hereunder to reimburse upon whichever occurs first: a final determination of liability, a settlement of such an issue,
or a refusal of Employee to bear the expense with respect thereto. Employee's obligation, if any, to reimburse must be paid within three
(3) months or at the Practice's option may be deducted from compensation due and payable to Employee.
12.) Vacations - Employee shall
be entitled to such annual vacations as may from time to time be determined by the Practice as part of a consistent vacation policy for
all Professional Employees. The compensation to which Employee is entitled hereunder, as calculated in accordance with the terms and
conditions of the Compensation Plan, shall be paid to Employee during the time of Employee's vacation.
13.) Events
of Termination - This Agreement shall terminate as follows:
(a) By
mutual written agreement of the parties;
(b)
Upon the death of Employee;
(c)
Upon ninety (90) days' written notice by either party;
(d) With Cause (other than breach
of this Agreement), upon written notice to Employee by the Practice;
(e)
At the option of the non-breaching party, upon the expiration of ten (10) days following written notice to breaching party of a material
breach of any provision in this Agreement and failure of such breaching party to cure;
(f)
Employee attains the age of seventy (70) years;
(g)
Upon the insolvency or bankruptcy of the Practice;
(h)
Following a Total Disability, if Employee does not return to work on a Full Time basis (as more specifically set forth in Section 4 above);
or
(i)
Upon Employee becoming required to sell Class A shares of the Practice to the Practice pursuant to an agreement between Employee and the
Practice.
14.) Effect
of Termination. Notwithstanding the termination of this Agreement, the parties shall be required to carry out any provisions hereof
which contemplate performance by them subsequent to such termination. Such termination shall not affect any liability or other obligations
which shall have accrued prior to such termination, including, but not limited to, any liability for loss or damage on account of default.
In the event this Agreement is terminated by the Practice upon ninety (90) days written notice to Employee, the Practice shall have the
right, in its sole and absolute discretion, to (a) determine which duties and activities Employee will be
permitted or required to do within such ninety (90) day period, and/or (b) treat such termination as being effective on the first day
after such written notice by paying Employee an amount equal to three months average compensation earned by Employee under Section 3
hereof, such average monthly compensation to be based on the prior six month period (or lesser period if Employee has been employed by
the Practice less than six months).
15.) Deferred Compensation - In
recognition and consideration of Employee's continuing employment, any termination of this Agreement shall entitle Employee, or his or
her heirs and assigns, to deferred compensation, the amount of which is to be determined and paid as provided in the Compensation Plan.
16.) Records
and Files - In the event of the termination of employment of Employee, possession of each corporate record and file, including
such document and file of a patient, shall be retained by the Practice. However, Employee shall have the right at any time and from
time to time after termination of Employee's employment, to inspect, and at Employee's own expense to have copies prepared of, all
patient records owned by the Practice at the time of termination of employment relating to patients for whom Employee was the
primary dentist, so long as such activities: (i) coupled with Employee's other actions do not breach Section 18 below; (ii) do not
offend professional ethics; or (iii) do not violate the Practice's legal responsibilities and obligations under applicable state and
federal laws, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 ("HIP AA")
and regulations related thereto. If any patient advises the Practice in writing that he or she desires delivery of copies of records
and files pertaining to him or her to Employee, such advice shall be complied with, to the extent possible, at such patient's
expense. All copies to be provided hereunder shall be made at the offices of the Practice by personnel designated by the
Practice.
17.) Confidentiality - Employee
may have access to Confidential Information which the Practice desires to protect at all times. Therefore:
| (a) | Employee understands, acknowledges, and agrees that: |
| (I) | Confidential Information includes all types of information defined below; |
| (2) | Employee's duties may involve the use of Confidential Information; |
| (3) | Practice has expended substantial sums of money, time, and effort in developing such
Confidential Information; and |
| (4) | Practice will be substantially harmed in the competitive marketplace if the Confidential Information is
used to its detriment or to the benefit of others. |
| (b) | In recognition of the foregoing, Employee agrees that: |
| (1) | Employee will not during or after employment with the Practice, directly or indirectly use or disclose
any Confidential Information to any other person, clinic or company, or in any way use for Employee's benefit, or to the detriment of
the Practice, any Confidential Information or knowledge obtained during the course of Employee's employment with the Practice, except
as required in the conduct of the Practice's business or as authorized in writing by the Practice; and |
| (2) | All memoranda, notes, records, papers, and other documents, electronic and magnetic storage media, and
all copies thereof relating to the Practice's operation of its business and all objects related thereto are and remain the property of
the Practice; including, but not limited to, those developed, investigated, or considered by the Practice. Employee will not copy or duplicate
any of the aforementioned documents or objects nor use any information contained therewith, except for the Practice's benefit, either
during or after Employee's employment. |
| (3) | "Confidential Information" means any information not properly held in the public domain or compilation of such information
possessed by the Practice that derives independent economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, the public, including, but not limited to: (a) any information not generally known or readily
ascertainable in the health care industry, regarding the Practice's
research, marketing, servicing, contracts, business systems, and techniques; (b) financial information concerning the Practice and its
patients, including, but not limited to, patient lists, information concerning accounts receivable of the patients and third party payors
of the Practice; ( c) quantity and type of services purchased by third party payors from the Practice; and ( d) any information that the
Practice may from time to time designate as "confidential," "proprietary," or "trade secrets" which is not
generally known in the health care industry. |
18.) Covenant Not to Compete
- Employee and the Practice agree that the Practice would be substantially harmed if Employee were to compete with the Practice following
Employee's termination of employment with the Practice. Therefore, in consideration of the Practice securing similar covenants not to
compete from all Professional Employees and as an inducement to the Practice for entering into this Agreement, Employee agrees as follows:
(a) Following the termination of Employee's
employment with the Practice for any reason, Employee agrees, for a period of two (2) years thereafter, not to directly or indirectly
own, manage, control, or accept any employment, either as an employee or independent contractor, in any clinic, care center, or other
organization or facility engaged in the rendering of dental services, in which Employee, or any of such entities, is engaged in the rendering
of dental services, within seven (7) miles of any Practice location at which Employee was regularly providing dental services; and
(b) During the Original Term and each
Renewal Term of this Agreement, Employee shall not, directly or indirectly, own, manage, control, or accept any employment, either as
an employee or independent contractor, in any clinic, care center, or other organization or facility engaged in the rendering of dental
services in Minnesota or Wisconsin; provided, however, that ownership by Employee, as a passive investment, of less than five percent
(5%) of the outstanding shares of capital stock of any company listed on a national securities exchange or publicly traded in the over-the-counter
market shall not constitute a breach of this Section 18(b); and
(c) In addition, Employee agrees not
to solicit employees of the Practice for employment or patients for a period of two (2) years following the date of termination of Employee's
employment with the Practice; and
(d)
Employee hereby acknowledges that the provisions of this Section 18 are special, unique and extraordinary in character and that any
damages to the Practice as a result of any violation of the provisions of this Section 18 cannot be adequately compensated by
monetary damages. Employee hereby acknowledges that in the event of any violations of the provisions of this Section 18, the
Practice, in addition to any and all of the rights and remedies available to it, shall be entitled to obtain specific performance
and injunctive relief restraining Employee from committing or continuing any violation of this Section 18;and
(e) Employee and the Practice acknowledge
that all of the restrictions set forth in this Section 18 have been carefully considered and negotiated between the parties hereto.
Specifically, Employee understands and
acknowledges that a substantial number of the Practice's patients to whom the Employee will be rendering professional services, and with
whom the Employee will be developing a professional relationship during the term of this Agreement, reside near the Practice's offices.
The Practice and Employee also agree that if the Employee's employment with the Practice terminates, the Practice will spend a considerable
amount of time and expense attracting other qualified dentists to serve its patients residing in such area. In light of these understandings
and the other good and valuable consideration provided herein, the receipt of which is hereby acknowledged, the Practice and Employee
agree that the covenant not to compete provisions provided in this Section 18 are reasonable, and will not unduly restrict the Employee's
ability to find employment in the event of Employee's termination. The Practice and Employee further agree that if any provision of this
Section 18 is held in a final judgment or determination in any court of law or administrative agency of competent jurisdiction to be overbroad
or otherwise unenforceable in any respect, such overbroad or otherwise unenforceable provision shall be deemed to be amended, and shall
be binding upon Employee to the maximum extent deemed reasonable and enforceable by such court or administrative agency; and
(f) Employee and the Practice hereby
agree and acknowledge that the provisions of this Section 18 shall survive termination of this Agreement.
19.) Amendment; Waiver - Except
as otherwise set forth in the Compensation Plan, this Agreement shall not be modified or amended except in writing signed by Employee
and the Practice. No provision hereof may be waived except by an agreement in writing signed by the waiving party. A waiver of any term
or provision of this Agreement shall not be construed as a waiver of any other term or provision or a waiver of any subsequent breach
of the same term or provision.
20.) Assignment - The rights and
financial benefits of Employee under this Agreement may be assigned with prior written consent of the Practice, but Employee may not
assign Employee's responsibilities or obligations hereunder.
21.) Notice - Any notice required
or permitted to be given under this Agreement shall be sufficient if made in writing and sent by registered or certified mail to the
residence of Employee or to the principal office of the Practice, whichever shall be applicable.
22.) Applicable Law - This Agreement was
executed in the State of Minnesota, and the Practice and Employee agree that all questions arising in connection with it shall be governed
by the laws of the State of Minnesota, the Articles of Incorporation, and the Bylaws of the Practice as they may be amended from time
to time.
23.) Entire
Agreement - This Agreement contains the entire agreement between the parties relating to its subject matter; there being no terms,
provisions, conditions, covenants or agreements other than those contained herein.
24.) Prior Agreements - All prior
employment agreements between the parties are superseded by this Agreement.
25.) Severability - No finding
or adjudication that any provision of this Agreement is invalid or unenforceable shall affect the validity or enforceability of the remaining
provisions herein, and this Agreement shall be construed as though such invalid or unenforceable portions were omitted.
26.) Definitions - For purposes
of this Agreement and the Compensation Plan, the following terms shall have the meanings hereinafter set forth below. Other capitalized
terms used herein that are not defined below shall have such meanings as described in the Compensation Plan.
(a) The term "Cause," for purposes of this Agreement, shall mean any of the following:
| (1) | The revocation or suspension of Employee's license to practice dentistry in the State of Minnesota or
any other state where employee is licensed; |
| (2) | The expulsion, suspension or disciplining of Employee as the final action of any professional
or scientific organization for misconduct; |
| (3) | The resignation of Employee from any professional or scientific organization while under threat of disciplinary
action for misconduct; |
| (4) | The inability of the Practice to obtain professional liability insurance covering Employee or the inability
of the Practice to obtain such professional liability insurance covering Employee at rates comparable to those at which it is able to
insure other Professional Employees. |
| (5) | A good faith determination by the Practice that Employee was dishonest or stole property
of the Practice; |
| (6) | A good faith determination by the Practice of Employee's gross negligence in the execution
of Employee's duties under this Agreement; or |
| (7) | Employee's commission of a crime or other act which would materially damage or is otherwise materially adverse to the reputation and
interests of the Practice. |
(b) The term "Compensation Adjustment" shall mean $0 for all Fiscal Years.
(c) The term "Fiscal Year" shall mean the period from January 1 to December 31, or whatever other Fiscal Year the Practice may adopt from time to time; provided, however, in the event this Agreement terminates, the final Fiscal Year shall end as of such date of such termination.
(d)
The term "Full Time" shall mean maintaining a weekly clinical work schedule equal to or exceeding the threshold set by the Practice
from time to time as applies to Employee; provided, however, that this shall not be construed as prohibiting Employee from exercising
the option set forth in Section 6 hereinabove.
(e)
The term "Professional Employee" shall only refer to Employee and, as of the end of the Fiscal Year, all other employees of
the Practice employed pursuant to a written employment agreement in which they are designated as a "Professional Employee."
(f)
The term "Total Compensation Adjustment" shall mean $0.
(g)
The terms "Total Disability" and "Totally Disabled" shall mean the inability of Employee, through physical sickness or injury or mental illness or other medical cause, to perform Employee's Full Time duties herein for thirty (30) continuous days.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement effective as of the day and year first above written.
| EMPLOYEE: |
|
PRACTICE: |
| |
|
PDG, P.A. |
| |
|
|
| |
|
|
| /s/ Christopher E. Steele, D.D.S. |
|
By: |
/s/ Dr. John E. Gulon |
| Name:
Christopher E. Steele, D.D.S. |
|
Its: President |
Exhibit 10.22
INDEMNIFICATION AGREEMENT
This Indemnification Agreement
(the “Agreement”) is made as of the 28th day of August, 2025, by and between Park Dental Partners, Inc.,
a Minnesota corporation (the “Corporation”), and «Legal_Name» (the “Indemnitee”), a
director or officer of the Corporation.
WHEREAS, it is essential
to the Corporation to retain and attract as directors and officers the most capable persons available, and
WHEREAS, the substantial
increase in corporate litigation subjects directors and officers to expensive litigation risks and at the same time that the availability
of directors’ and officers’ liability insurance has been severely limited, and
WHEREAS, it is now
and has always been the express policy of the Corporation to indemnify its directors and officers, and
WHEREAS, this Agreement
is a supplement to and in furtherance of indemnification pursuant to the Minnesota Business Corporation Act (“MBCA”),
the Corporation’s Bylaws as currently adopted (the “Bylaws”), the Fourth Amended and Restated Articles of Incorporation
of the Corporation, as filed with the Secretary of State of the State of Minnesota on August 21, 2025 (the “Articles”),
liability insurance, and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder, and
WHEREAS, the Corporation
desires the Indemnitee to serve, or continue to serve, as a director or officer of the Corporation.
NOW THEREFORE, the
Corporation and the Indemnitee do hereby agree as follows:
1. Agreement
to Serve. The Indemnitee agrees to serve or continue to serve as a director or officer of the Corporation for so long as the
Indemnitee is duly elected or appointed or until such time as the Indemnitee tenders a resignation in writing.
2. Definitions.
As used in this Agreement:
(a) The
term “Proceeding” shall include any threatened, pending or completed action, suit, arbitration, alternative dispute
resolution proceeding, administrative hearing or other proceeding, whether brought by or in the right of the Corporation or otherwise
and whether of a civil, criminal, administrative or investigative nature, and any appeal therefrom.
(b) The
term “Corporate Status” shall mean the status of a person who is or was, or has agreed to become, a director or officer
of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer, fiduciary,
partner, trustee, member, employee or agent of, or in a similar capacity with, another corporation, partnership, joint venture, trust,
limited liability corporation or other enterprise.
(c) The
term “Expenses” shall include, without limitation, reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees and expenses of experts, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery
service fees and other disbursements or expenses of the types customarily incurred in connection with investigations, judicial or administrative
proceedings or appeals, but shall not include the amount of judgments, fines or penalties against Indemnitee or amounts paid in settlement
in connection with such matters.
3. Indemnity
of Indemnitee. Subject to Sections 6, 7 and 9, the Corporation shall indemnify the Indemnitee in connection
with any Proceeding as to which the Indemnitee is, was or is threatened to be made a party (or is otherwise involved) by reason of the
Indemnitee’s Corporate Status, to the fullest extent permitted by law (as such may be amended from time to time). In furtherance
of the foregoing and without limiting the generality thereof:
(a) Indemnification
in Third-Party Proceedings. The Corporation shall indemnify the Indemnitee in accordance with the provisions of this Section 3(a) if
the Indemnitee was or is a party to or threatened to be made a party to or otherwise involved in any Proceeding (other than a Proceeding
by or in the right of the Corporation to procure a judgment in its favor or a Proceeding referred to in Section 6) by reason
of the Indemnitee’s Corporate Status or by reason of any action alleged to have been taken or omitted in connection therewith,
against all Expenses, judgments, fines, penalties and amounts paid in settlement actually and reasonably incurred by or on behalf of
the Indemnitee in connection with such Proceeding, if the Indemnitee acted in good faith and in a manner which the Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation and, with respect to any criminal Proceeding, had no reasonable
cause to believe that the Indemnitee’s conduct was unlawful.
(b) Indemnification
in Proceedings by or in the Right of the Corporation. The Corporation shall indemnify the Indemnitee in accordance with the provisions
of this Section 3(b) if the Indemnitee was or is a party to or threatened to be made a party to or otherwise involved
in any Proceeding by or in the right of the Corporation to procure a judgment in its favor by reason of the Indemnitee’s Corporate
Status or by reason of any action alleged to have been taken or omitted in connection therewith, against all Expenses and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf of the Indemnitee in connection with such
Proceeding, if the Indemnitee acted in good faith and in a manner which the Indemnitee reasonably believed to be in, or not opposed to,
the best interests of the Corporation, except that, if applicable law so provides, no indemnification shall be made under this Section 3(b) in
respect of any claim, issue, or matter as to which the Indemnitee shall have been adjudged to be liable to the Corporation, unless, and
only to the extent, that the court in which such action or suit was brought shall determine upon application that, despite the adjudication
of such liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for
such Expenses as the court shall deem proper.
4. Indemnification
of Expenses of Successful Party. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee has
been successful, on the merits or otherwise, in defense of any Proceeding or in defense of any claim, issue or matter therein (other
than a Proceeding referred to in Section 6), the Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by or on behalf of the Indemnitee in connection therewith. Without limiting the foregoing, if any Proceeding or any claim, issue
or matter therein is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition
being adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of guilty
or nolo contendere by the Indemnitee, (iv) an adjudication that the Indemnitee did not act in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the Corporation, and (v) with respect to any criminal proceeding,
an adjudication that the Indemnitee had reasonable cause to believe his or her conduct was unlawful, the Indemnitee shall be considered
for the purposes hereof to have been wholly successful with respect thereto.
5. Indemnification
for Expenses of a Witness. To the extent that the Indemnitee is, by reason of the Indemnitee’s Corporate Status, a witness,
or is made (or asked) to respond to discovery requests, in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall
be indemnified against all Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection therewith.
6. Exceptions
to Right of Indemnification. Notwithstanding any provision in this Agreement, the Corporation shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for
which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with
respect to any excess beyond the amount paid under any insurance policy or other indemnity provision,
(b) for
(i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Corporation
within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory
law or common law, (ii) any reimbursement of the Corporation by the Indemnitee of any bonus or other incentive-based or equity-based
compensation or of any profits realized by the Indemnitee from the sale of securities of the Corporation, as required in each case under
the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304
of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Corporation of profits arising
from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any
reimbursement of the Corporation by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted
by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange
listing requirements implementing Section 10D of the Exchange Act; or
(c) except
as set forth in Section 10, in connection with a Proceeding (or part thereof) initiated by the Indemnitee, including any
Proceeding (or part thereof) initiated by Indemnitee against the Corporation or its directors, officers, employees or other indemnitees,
unless (i) the Board authorized the Proceeding (or part thereof) prior to its initiation, (ii) such payment arises in connection
with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or part thereof) or (iii) the
Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Corporation under applicable law.
7. Notification
and Defense of Claim. As a condition precedent to the Indemnitee’s right to be indemnified, the Indemnitee must notify
the Corporation in writing as soon as practicable of any Proceeding for which indemnity will or could be sought. With respect to any
Proceeding of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or
to assume the defense thereof at its own expense, with legal counsel of the Corporation’s choosing upon written consent by the
Indemnitee, which consent shall not be unreasonably withheld. After notice from the Corporation to the Indemnitee of its election so
to assume such defense, the Corporation shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by
the Indemnitee in connection with such Proceeding, other than as provided below in this Section 7. The Indemnitee shall have
the right to employ his or her own counsel in connection with such Proceeding, but the fees and expenses of such counsel incurred after
notice from the Corporation of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment
of counsel by the Indemnitee has been authorized by the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue between the Corporation and the Indemnitee in the conduct
of the defense of such Proceeding or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such
Proceeding, in each of which cases the fees and expenses of counsel for the Indemnitee shall be at the expense of the Corporation, except
as otherwise expressly provided by this Agreement, and provided that Indemnitee’s counsel shall cooperate reasonably with the Corporation’s
counsel to minimize the cost of defending claims against the Corporation and the Indemnitee. The Corporation shall not be entitled, without
the consent of the Indemnitee, to assume the defense of any claim brought by or in the right of the Corporation or as to which counsel
for the Indemnitee shall have reasonably made the conclusion provided for in clause (ii) above. The Corporation shall not be required
to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent.
The Corporation shall not settle any Proceeding in any manner that would impose any penalty or limitation on the Indemnitee without the
Indemnitee’s written consent. Neither the Corporation nor the Indemnitee will unreasonably withhold or delay their consent to any
proposed settlement.
8. Advancement
of Expenses. In the event that the Corporation does not assume the defense pursuant to Section 7 of any Proceeding
of which the Corporation receives notice under this Agreement, any Expenses actually and reasonably incurred by or on behalf of the Indemnitee
in defending such Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding; provided, however,
that the payment of such Expenses incurred by or on behalf of the Indemnitee in advance of the final disposition of such Proceeding shall
be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Agreement. Such
undertaking shall be accepted without reference to the financial ability of the Indemnitee to make repayment. Any advances and undertakings
to repay pursuant to this Section 8 shall be unsecured and interest-free.
9. Procedures.
It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as favorable as may be permitted under the MBCA
and public policy of the State of Minnesota. Accordingly, the parties agree that the following procedures and presumptions shall apply
in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) In
order to obtain indemnification or advancement of Expenses pursuant to this Agreement, the Indemnitee shall submit to the Corporation
a written request, including in such request such documentation and information as is reasonably available to the Indemnitee and is reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to indemnification or advancement of Expenses. Any such
indemnification or advancement of Expenses shall be made promptly, and in any event within (i) in the case of indemnification under
Sections 4 or 5 for advancement of Expenses, 30 days after receipt by the Corporation of the written request of the Indemnitee,
or (ii) in the case of all other indemnification, 60 days after receipt by the Corporation of the written request of the Indemnitee,
unless with respect to requests under this clause (ii) the Corporation determines, by clear and convincing evidence, within the
60-day period that the Indemnitee did not meet the applicable standard of conduct. Such determination, and any determination that advanced
Expenses must be repaid to the Corporation, shall be made in each instance (a) by a majority vote of the directors of the Corporation
consisting of persons who are not at that time parties to the Proceeding (“disinterested directors”), whether or not a quorum,
(b) by a committee of disinterested directors designated by a majority vote of disinterested directors, whether or not a quorum,
(c) if there are no disinterested directors, or if the disinterested directors so direct, by independent legal counsel (who may,
to the extent permitted by applicable law, be regular legal counsel to the Corporation) in a written opinion, or (d) if so directed
by the Board of Directors of the Corporation, by the shareholders of the Corporation. The termination of any Proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
Indemnitee did not act in good faith and in a manner that the Indemnitee reasonably believed to be in, or not opposed to, the best interests
of the Corporation, and, with respect to any criminal Proceeding, had reasonable cause to believe that his or her conduct was unlawful.
(b) The
Indemnitee shall cooperate with the person, persons or entity making such determination with respect to the Indemnitee’s entitlement
to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary
to such determination. Any Expenses actually and reasonably incurred by the Indemnitee in so cooperating shall be borne by the Corporation
(irrespective of the determination as to the Indemnitee’s entitlement to indemnification) and the Corporation hereby indemnifies
the Indemnitee therefrom.
10. Remedies.
The right to indemnification or advancement of Expenses as provided by this Agreement shall be enforceable by the Indemnitee as provided
in Section 26 if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within the
applicable period referred to in Section 9. Unless otherwise required by law, the burden of proving that indemnification
or advancement of Expenses is not appropriate shall be on the Corporation. Neither the failure of the Corporation to have made a determination
prior to the commencement of such action that indemnification is proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Corporation that the Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. The Indemnitee’s
Expenses actually and reasonably incurred in connection with successfully establishing the Indemnitee’s right to indemnification,
in whole or in part, in any such Proceeding shall also be indemnified by the Corporation.
11. Partial
Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Corporation for
some or a portion of the Expenses, judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by or on
behalf of the Indemnitee in connection with any Proceeding but not, however, for the total amount thereof, the Corporation shall nevertheless
indemnify the Indemnitee for the portion of such Expenses, judgments, fines, penalties or amounts paid in settlement to which the Indemnitee
is entitled.
12. Contribution.
(a) Whether
or not the indemnification provided in Section 3 hereof is available, in respect of any Proceeding in which the Corporation
is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Corporation shall pay, in the first instance, the entire
amount of any judgment or settlement of such Proceeding without requiring Indemnitee to contribute to such payment and the Corporation
hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Corporation shall not enter into any settlement
of any Proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement
provides for a full and final release of all claims asserted against Indemnitee.
(b) To
the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Corporation, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,
whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with
any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all
of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Corporation and Indemnitee
as a result of the events or transactions giving cause to such Proceeding and/or (ii) the relative fault of the Corporation (and
its directors, officers, employees and agents) and Indemnitee in connection with such events or transactions. The relative fault of the
Corporation and all officers, directors or employees of the Corporation other than Indemnitee who are jointly liable with Indemnitee
(or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to,
among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which
their liability is primary or secondary and the degree to which their conduct is active or passive.
13. Subrogation.
In the event of any payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution
of such documents as are necessary to enable the Corporation to bring suit to enforce such rights.
14. Term
of Agreement. This Agreement shall continue until and terminate upon the later of (a) three(3) years after the date
that the Indemnitee shall have ceased to serve as a director or officer of the Corporation or, at the request of the Corporation, as
a director, officer, partner, trustee, member, employee or agent of another corporation, partnership, joint venture, trust, limited liability
Corporation or other enterprise or (b) the final termination of all Proceedings pending on the date set forth in clause (a) in
respect of which the Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced
by the Indemnitee pursuant to Section 10 of this Agreement relating thereto.
15. Indemnification
Hereunder Not Exclusive.
(a) The
indemnification and advancement of Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under applicable law, the Articles or the Bylaws, any other agreement, any vote of shareholders or disinterested
directors, any other law (common or statutory), or otherwise, both as to action in the Indemnitee’s Corporate Status and as to
action in another capacity while holding office for the Corporation. No amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee
in Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the MBCA, whether by statute or judicial
decision, permits greater indemnification than would be afforded currently under the Articles, the Bylaws and this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative
and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right
or remedy.
(b) Nothing
contained in this Agreement shall be deemed to prohibit the Corporation from purchasing and maintaining insurance, at its expense, to
protect itself or the Indemnitee against any expense, liability or loss incurred by it or the Indemnitee in any such capacity, or arising
out of the Indemnitee’s status as such, whether or not the Indemnitee would be indemnified against such expense, liability or loss
under this Agreement; provided that the Corporation shall not be liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that the Indemnitee has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
16. Confidential
Information. To the extent that any information obtained by the Indemnitee from the Corporation is Confidential Information (as
defined below), the Indemnitee shall treat any such Confidential Information as confidential in accordance with the terms and conditions
set out in this Section 16.
(a) As
used in this Agreement, “Confidential Information” means any and all information or data concerning the Corporation
or its affiliates, whether in verbal, visual, written, electronic, or other form, which is disclosed to the Indemnitee by the Corporation
or any trustee, officer, employee, or agent of the Corporation, together with all information discerned from, based on, or relating to
any of the foregoing which may be prepared or created by the Indemnitee; provided, that “Confidential Information” shall
not include information that (i) is or becomes generally available to the public other than as a result of disclosure of such information
by the Indemnitee or any of his or her affiliates, (ii) is independently developed by the Indemnitee without use of Confidential
Information provided by the Corporation or by any trustee, officer, employee, or agent thereof, (iii) becomes available to the Indemnitee
on a non-confidential basis from a third party that is not prohibited from disclosing such information to the Indemnitee by any contractual,
legal, or fiduciary obligation to the Corporation; or (iv) was known by the Indemnitee prior to receipt from the Corporation or
from any trustee, officer, employee, or agent thereof.
(b) The
Indemnitee shall (a) retain all Confidential Information in strict confidence; (b) not release or disclose Confidential Information
in any manner to any other third-party whatsoever; and (c) use the Confidential Information solely in connection with the Indemnitee’s
performance of his or her services as a director or officer of the Corporation and not for any other purpose; provided, that the foregoing
shall not apply to the extent the Indemnitee is compelled to disclose Confidential Information by judicial or administrative process,
pursuant to the advice of counsel, or by requirements of law; provided, further, that (i) prior written notice of such disclosure
shall be given to the Corporation so that the Corporation may take action, at its expense, to prevent such disclosure and (ii) any
such disclosure is limited only to that portion of the Confidential Information which such person is compelled to disclose.
(c) The
Indemnitee agrees that, upon the request of the Corporation or once the Indemnitee has ceased to serve as a director or officer of the
Corporation, the Indemnitee will promptly (i) return or destroy, at the Corporation’s option, all physical materials containing
or consisting of Confidential Information and all hard copies thereof in their possession or control; and (ii) destroy all electronically
stored Confidential Information in their possession or control.
17. Security.
To the extent requested by Indemnitee and approved by the Board, the Corporation may at any time and from time to time provide security
to Indemnitee for the Corporation’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral.
Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.
18. No
Special Rights. Nothing herein shall confer upon the Indemnitee any right to continue to serve as an officer or director of the
Corporation for any period of time or at any particular rate of compensation.
19. Savings
Clause. If this Agreement or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify the Indemnitee as to Expenses, judgments, fines, penalties and amounts paid in settlement
with respect to any Proceeding to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated
and to the fullest extent permitted by applicable law.
20. Modification
and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing
by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
21. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
22. Successors
and Assigns. This Agreement shall be binding upon the parties and their successors and assigns and shall inure to the benefit
of the estate, heirs, executors, administrators and personal representatives of the parties.
23. Headings.
The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
24. Notices.
All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been given (i) when
delivered by hand, (ii) when sent by confirmed electronic mail if sent during normal business hours of the recipient, and if not
so confirmed, then on the next business day, or (iii) if mailed by certified or registered mail with postage prepaid, on the third
day after the date on which it is so mailed:
(a) if
to the Indemnitee, to the address set forth on the signature page hereto.
(b) if
to the Corporation, to:
Park Dental Partners, Inc.
2200 County Road C West
Suite 2210
Roseville, MN 55113
Attention: Chief Executive Officer
or to such other address as may have been furnished
to the Indemnitee by the Corporation or to the Corporation by the Indemnitee, as the case may be.
25. Applicable
Law. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance
with, the laws of the State of Minnesota, without regard to its conflict of laws rules. The Corporation and Indemnitee hereby irrevocably
and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought
only in the state or federal courts located in the State of Minnesota (the “Minnesota Courts”), and not in any other
state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive
jurisdiction of the Minnesota Courts for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) waive
any objection to the laying of venue of any such action or proceeding in any of the Minnesota Courts, and (iv) waive, and agree
not to plead or to make, any claim that any such action or proceeding brought in any of the Minnesota Courts has been brought in an improper
or inconvenient forum.
26. Enforcement.
The Corporation expressly confirms and agrees that it has entered into this Agreement in order to induce the Indemnitee to serve or to
continue to serve as an officer or director of the Corporation, and acknowledges that the Indemnitee is relying upon this Agreement in
continuing in such capacity. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to
the subject matter hereof. The Corporation shall not seek from a court, or agree to, a “bar order” which would have the effect
of prohibiting or limiting the Indemnitee’s rights to receive advancement of expenses under this Agreement.
[Signature page follows.]
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed as of the day and year first above written.
| PARK DENTAL PARTNERS, INC. |
|
INDEMNITEE |
| |
|
|
| By: |
|
|
By: |
|
| Name: |
«Park_signatory» |
|
|
«Legal_Name» |
| Title: |
«Park_Title» |
|
|
[Signature Page to Park Dental Partners, Inc.
Indemnification Agreement]
Exhibit
14.1
PARK
Dental Partners, Inc.
Code
of Ethics and Business Conduct
| a. | The Board of Directors of Park Dental Partners, Inc. (the “Company”) has adopted this
Code of Ethics and Business Conduct (the “Code”) to: |
| i. | promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of
interest; |
| ii. | promote full, fair, accurate, timely and understandable disclosure in reports and documents that the Company
files with, or submits to, the Securities and Exchange Commission (the “SEC”) and in other public communications made
by the Company; |
| iii. | promote compliance with applicable governmental laws, rules and regulations; |
| iv. | promote the protection of Company assets, including corporate opportunities and confidential information; |
| v. | promote fair dealing practices; |
| vii. | ensure accountability for adherence to the Code. |
| b. | All directors, officers and employees are required to be familiar with the Code, comply with its provisions
and report any suspected violations as described below. |
| 2. | Honest and Ethical Conduct. |
| a. | The Company’s policy is to promote the highest standards of integrity by conducting its affairs
honestly, ethically, and following the principal of “doing the right thing.” |
| b. | Each director, officer and employee must act with integrity and observe the highest ethical standards
of business conduct in his or her dealings with the Company’s customers, suppliers, partners, service providers, competitors, employees
and anyone else with whom he or she has contact in the course of performing his or her job. |
| a. | A conflict of interest occurs when an individual’s private interest (or the interest of a member
of his or her family) interferes, may interfere, or even appears to interfere, with the interests of the Company as a whole. A conflict
of interest can arise when an employee, officer or director (or a member of his or her family) takes actions or has interests that may
make it difficult to perform his or her work for the Company objectively and effectively. Conflicts of interest also arise when an employee,
officer or director (or a member of his or her family) receives improper personal benefits as a result of his or her position in the Company. |
| b. | Loans by the Company to, or guarantees by the Company of obligations of, employees or their family members
are of special concern and could constitute improper personal benefits to the recipients of such loans or guarantees, depending on the
facts and circumstances. Loans by the Company to, or guarantees by the Company of obligations of, any director or officer or their family
members are expressly prohibited. |
| c. | Whether or not a conflict of interest exists or will exist can be unclear. Conflicts of interest should
be avoided unless specifically authorized as described in Section 3(d). |
| d. | Persons other than directors and executive officers who have questions about a potential conflict of interest
or who become aware of an actual or potential conflict should discuss the matter with, and seek a determination and prior authorization
or approval from, their supervisor or the Chief Executive Officer. A supervisor may not authorize or approve conflict of interest matters
or make determinations as to whether a problematic conflict of interest exists without first providing the Chief Executive Officer with
a written description of the activity and seeking the Chief Executive Officer’s written approval. If the supervisor is involved
in the potential or actual conflict, the matter should instead be discussed directly with the Chief Executive Officer. |
Directors and executive officers
may only seek determinations and prior authorizations or approvals from the Corporate Governance and Nominating Committee
| a. | Employees, officers and directors should comply, both in letter and spirit, with all applicable laws,
rules and regulations in the cities, states and countries in which the Company operates. |
| b. | Although not all employees, officers and directors are expected to know the details of all applicable
laws, rules and regulations, it is important to know enough to determine when to seek advice from appropriate personnel. Questions about
compliance should be addressed to the Chief Financial Officer. |
| c. | No director, officer or employee may purchase or sell any Company securities while in possession of material
non-public information regarding the Company, nor may any director, officer or employee purchase or sell another company’s securities
while in possession of material non-public information regarding that company. It is against Company policies and illegal for any director,
officer or employee to use material nonpublic information regarding the Company or any other company to: |
| i. | obtain profit for himself or herself; or |
| ii. | directly or indirectly “tip” others who might make an investment decision on the basis of
that information. |
Each director, officer and
employee should read this Section 4 in conjunction with the Company’s Insider Trading Policy.
| a. | The Company’s periodic reports and other documents filed with the SEC, including all financial statements
and other financial information, must comply with applicable federal securities laws and SEC rules. |
| b. | Each director, officer and employee who contributes in any way to the preparation or verification of the
Company’s financial statements and other financial information must ensure that the Company’s books, records and accounts
are accurately maintained. Each director, officer and employee must cooperate fully with the Company’s Chief Financial Officer,
as well as the Company’s independent public accountants and counsel. |
| c. | Each director, officer and employee who is involved in the Company’s disclosure process must: |
| i. | be familiar with and comply with the Company’s disclosure controls and procedures and its internal
control over financial reporting; and |
| ii. | take all necessary steps to ensure that all filings with the SEC and all other public communications about
the financial and business condition of the Company provide full, fair, accurate, timely and understandable disclosure. |
| 6. | Protection and Proper Use of Company Assets. |
| a. | All directors, officers and employees should protect the Company’s assets and ensure their efficient
use. Theft, carelessness and waste have a direct impact on the Company’s profitability and are prohibited. |
| b. | All Company assets should be used only for legitimate business purposes. Any suspected incident of fraud
or theft should be reported for investigation immediately. |
| c. | The obligation to protect Company assets includes the Company’s proprietary information. Proprietary
information includes intellectual property such as trade secrets, patents, trademarks, and copyrights, as well as business and marketing
plans, engineering and manufacturing ideas, designs, databases, records and any non-public financial data or reports. Unauthorized use
or distribution of this information is prohibited and could also be illegal and result in civil or criminal penalties. |
| 7. | Corporate Opportunities. All directors, officers and employees owe a duty to the Company
to advance its interests when the opportunity arises. Directors, officers and employees are prohibited from taking for themselves personally
(or for the benefit of friends, family members, or other third parties) opportunities that are discovered through the use of Company assets,
property, information or position. Directors, officers and employees may not use Company assets, property, information or position for
personal gain (including gain of friends, family members, or other third parties). In addition, no director, officer or employee may compete
with the Company or serve as an officer, director or maintain any other relationship with a company that competes with the Company. |
| 8. | Confidentiality. Directors, officers and employees should maintain the confidentiality of
information entrusted to them by the Company or by its customers, suppliers or partners, except when disclosure is expressly authorized
or legally required. Confidential information includes all non-public information (regardless of its source) that might be of use to the
Company’s competitors or harmful to the Company or its customers, suppliers or partners if disclosed. |
| 9. | Fair Dealing. Each director, officer and employee must deal fairly with the Company’s
customers, suppliers, partners, service providers, competitors, employees and anyone else with whom he or she has contact in the course
of performing his or her job. No director, officer or employee may take unfair advantage of anyone through manipulation, concealment,
abuse or privileged information, misrepresentation of facts or any other unfair dealing practice. Directors, officers and employees should
follow the principal of doing the right thing when dealing with others inside or outside the Company rather than taking an action that
is expedient or offers short term advantage at long term harm. |
| 10. | Reporting and Enforcement. |
| a. | Reporting and Investigation of Violations. |
| i. | Actions prohibited by this code involving directors or executive officers must be reported to the Corporate
Governance and Nominating Committee. |
| ii. | Actions prohibited by this code involving any other person must be reported to the reporting person’s
supervisor or Chief Executive Officer. After receiving a report of an alleged prohibited action, the Corporate Governance and Nominating
Committee, the relevant supervisor or Chief Executive Officer must promptly take all appropriate actions necessary to investigate. |
| iii. | All directors, officers and employees are expected to cooperate in internal investigations of misconduct. |
| i. | The Company must ensure prompt and consistent action against violations of this Code. |
| ii. | If, after investigating a report of an alleged prohibited action by any other person, the relevant supervisor
determines that a violation of this Code has occurred, the supervisor will report such determination to the Chief Executive Officer. The
Chief Executive Officer will immediately report such violation to the Corporate Governance and Nominating Committee. |
| iii. | If, after investigating a report of an alleged prohibited action by a director, executive officer, or
employee, the Corporate Governance and Nominating Committee determines that a violation of this Code has occurred, the Corporate Governance
and Nominating Committee will report such determination to the Board of Directors. |
| iv. | Upon receipt of a determination that there has been a violation of this Code, the Board of Directors (in
the case of a violation by a director or executive officer), or Chief Executive Officer (in the case of a violation by any other persons)
will take such preventative or disciplinary action as it deems appropriate, including, but not limited to, reassignment, demotion, dismissal
and, in the event of criminal conduct or other serious violations of the law, notification of appropriate governmental authorities. |
| i. | The Board of Directors may, in its discretion, waive any violation of this Code. |
| ii. | Any request of or by the Chief Executive for such a waiver must be reported to the Corporate Governance
and Nominating Committee within twenty four hours. |
| iii. | Any waiver granted for a director or an executive officer shall be disclosed as required by SEC rules
and any rules and regulations or the primary exchange on which the Company’s securities trade. |
| d. | Prohibition on Retaliation. |
It is the Company’s
policy not to allow retaliation against any director, officer or employee for reports made by such person in good faith regarding acts
of misconduct or suspected violations of this Code.
Exhibit 21.1
Subsidiaries of Company
| Name
of Subsidiary | |
Jurisdiction
of Incorporation |
| | |
|
| PDP
MN, LLC | |
South
Dakota |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in this Registration Statement on Form S-1 of
our report dated May 21, 2025 (July 28, 2025 as to the effects of the revision discussed in Note 1, and September 3, 2025 as to the effects
of the stock conversion described in Note 1), relating to the financial statements of Park Dental Partners, Inc. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
/s/ Deloitte & Touche LLP
Minneapolis, MN
September 3, 2025
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