1
EXHIBIT 10.13
CONSULTING AGREEMENT
--------------------
THIS AGREEMENT, made and entered into and effective as of the date
shown on the signature page hereof ("Effective Date"), by and between First New
England Dental Centers, Inc. ("First Dental"), a Delaware corporation and the
dentist named on the signature page hereof (the "Dentist").
RECITALS
--------
WHEREAS, First Dental provides management and related services to
Xxxxxx and Xxxxxx, D.M.D., P.C. (the "P.C.") at various locations;
WHEREAS, First Dental desires to engage Dentist to serve as Consultant
("Consultant") for First Dental; and
WHEREAS, Dentist desires to be engaged by First Dental to render such
Consultant services on the terms and conditions specified herein and on the
signature page hereof.
NOW THEREFORE, in consideration of the foregoing recitals and the
mutual promises and conditions set forth herein, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
First Dental and Dentist agree as follows:
1. ENGAGEMENT. First Dental hereby engages Dentist and Dentist
hereby accepts engagement by First Dental upon the terms and conditions set
forth herein and on the signature page hereof.
2. DENTIST'S REPRESENTATIONS AND WARRANTIES. Dentist represents
and warrants at all times during the term of this Agreement that:
(a) Dentist is duly licensed and in good standing under
the laws of the Commonwealth of Massachusetts to
practice dentistry and said license has not been
suspended, revoked or restricted in any manner.
(b) Dentist has current controlled substances
registrations issued by the United States Drug
Enforcement Administration and applicable state
agencies, which registrations have not been
surrendered, suspended, revoked or restricted in any
manner.
2
(c) Dentist has disclosed and will disclose to First
Dental the following matters, whether occurring at
any time prior to or during the term of this
Agreement: (i) any malpractice suit, claim (whether
or not filed in court), settlement, settlement
allocation, judgment, verdict or decree against him;
(ii) any disciplinary, peer review or professional
review investigation, proceeding or action instituted
against him by any licensure board, hospital, dental
school, health care facility or entity, professional
society or association, third party payor, peer
review or professional review committee or body, or
governmental agency; (iii) any criminal complaint,
indictment or criminal proceeding in which Dentist is
named as a defendant; (iv) any investigation or
proceeding, whether administrative, civil or
criminal, relating to an allegation against him of
filing false health care claims, violating
anti-kickback laws, or engaging in other billing
improprieties; (v) any organic or mental illness or
condition that impairs or may impair Dentist's
ability to practice dentistry; (vi) any dependency
Dentist may have on, habitual use or episodic abuse
Dentist may make of, alcohol or controlled
substances, or any participation Dentist may have in
any alcohol or controlled substance detoxification,
treatment, recovery, rehabilitation, counseling,
screening or monitoring program; (vii) any
allegation, or any investigation or proceeding based
on any allegation, against him, of violating
professional ethics or standards, or engaging in
illegal, immoral or other misconduct (of any nature
or degree), relating to Dentist's practice of
dentistry; and (viii) any denial or withdrawal of an
application Dentist filed in any state for licensure,
for professional staff privileges at any hospital or
other health care entity, for certification or
recertification, for participation in any third party
payment program, for state or federal controlled
substances registration or for malpractice insurance.
(d) Dentist shall abide by the By-laws, rules,
regulations, policies and directives of First Dental.
(e) In connection with the provision of professional
services to patients of the P.C., Dentist shall
- 2 -
3
(i) at all times render services to patients in a
competent, professional and ethical manner, in
accordance with prevailing standards of medical
practice, and all applicable statutes, regulations,
rules, orders and directives of any and all
applicable governmental and regulatory bodies having
competent jurisdiction; (ii) use the equipment,
instruments, pharmaceuticals and supplies made
available by or through First Dental for the purposes
for which they are intended and in a manner
consistent with sound medical practice; (iii)
complete and maintain, in a timely manner, adequate,
legible and proper medical records with respect to
all services rendered to First Dental patients; and
(iv) participate in Medicare, Medicaid, Workers
Compensation, other federal and state reimbursement
programs, Blue Cross/Blue Shield, and other
commercial insurance programs and under the plan of
any HMO, PPO, health plan or other health benefit
program with which First Dental may contract or
affiliate in accordance with the rules, regulations
and procedures of such program.
3. Dentist's Services and Responsibilities.
---------------------------------------
3.1 OBLIGATIONS OF DENTIST AS CONSULTANT. Dentist shall
serve on the time basis shown on the signature page hereof as the Consultant and
in such capacity shall perform the services described on Exhibit A attached
hereto (and incorporated herein by this reference).
3.2 COMPLIANCE WITH APPLICABLE POLICIES. The performance
by Dentist of the services described in this Section 3 will be subject to such
policies, procedures, rules and regulations as First Dental may establish from
time to time.
3.3 CONFLICTS. Dentist shall devote Dentist's efforts to
fulfill the Dentist's obligations hereunder, and Dentist shall not, during the
term of this Agreement, without the prior written consent of First Dental which
consent shall not be unreasonably withheld, engage in any other professional
activity, whether or not such activity is pursued for gain, profit or other
pecuniary advantage, which interferes with the performance of Dentist's duties
hereunder, PROVIDED THAT Dentist may carry on the Dentist's dental practice.
Notwithstanding the foregoing, Dentist is permitted to continue lecturing,
consultation and testimony as an expert, any activity with respect to U.S.
Trading Group, Inc. and biomedical device design and fabrication.
- 3 -
4
3.4 TIME RECORDS. Dentist shall submit to First Dental
such time records as First Dental may require from time to time showing the
nature of the services performed by Dentist and the time Dentist actually spent
performing those services.
4. Financial Terms.
---------------
4.1 ADMINISTRATIVE COMPENSATION. First Dental shall pay
Dentist at the rate per annum shown of the signature page hereof for the
administrative and supervisory services rendered to First Dental by Dentist as
Consultant. Such annual compensation shall be payable by First Dental to Dentist
in installments in accordance with First Dental's standard payroll practices.
4.2 INFORMATION. Dentist will cooperate with First Dental
as requested in the completion of any forms and submission of any information
necessary for First Dental to receive third party reimbursement for technical
clinical services rendered in connection with any professional services rendered
by Dentist, if applicable.
4.3 FRINGE BENEFITS. Dentist shall not be entitled to,
and shall have no claim under this Agreement or otherwise against First Dental
for, any so-called fringe benefits, including but not limited to: paid vacation;
health insurance; continuing medical education reimbursement; paid continuing
medical education leave; life insurance; long-term disability insurance;
reimbursement of professional society dues; participation in a profit sharing or
pension plan; paid sick leave; family leave; or professional liability
insurance.
5. PROFESSIONAL LIABILITY INSURANCE. Dentist agrees at
all times during the term of this Agreement to maintain in full force and
effect, at Dentist's sole expense, professional liability insurance in such
amounts as First Dental shall reasonably request. In the event Dentist
discontinues a "claims made" form of insurance in effect at any time during the
term of this Agreement, Dentist shall obtain "tail" coverage for events that may
have occurred during the term of this Agreement. Dentist shall cooperate with
any reasonable risk prevention or risk management activities of Dentist's
insurer. Dentist shall furnish First Dental with a certificate of insurance
evidencing that the aforesaid insurance is in full force and effect at all times
during the term of this Agreement. Dentist shall notify First Dental in writing
prior to any cancellation, modification or nonrenewal of such insurance policy.
Dentist shall be solely responsible for any deferred or retroactive premium that
may hereafter be billed by Dentist's insurer, and for any recoupment assessed
against Dentist with respect to any operating deficit of
- 4 -
5
Dentist's insurer during any period prior to, during, or after the term of this
Agreement.
6. Term and Termination.
--------------------
6.1 TERM. Unless sooner terminated as provided herein,
this Agreement shall remain in full force and effect for the term stated on the
signature page hereof, commencing on the Effective Date and shall be
automatically extended at the end of the then-existing term for successive one
(1) year periods unless either of the parties notifies the other party in
writing at least sixty (60) days prior to the expiration of the then-existing
term of Dentist's/its desire to terminate this Agreement.
6.2 Termination.
-----------
a. First Dental may terminate this Agreement
immediately upon the occurrence of any of
the following: (i) Dentist's death; (ii)
Dentist's license to practice dentistry is
suspended or revoked; (iii) First Dental
determines that Dentist has furnished
deceptive or fraudulent information to First
Dental; (iv) Dentist engages in criminal,
unprofessional, unethical, or fraudulent
conduct and Dentist is found guilty of such
conduct by any entity or governmental agency
of competent jurisdiction; or (v) lapse or
termination of Dentist's malpractice
insurance other than due to the fault of
First Dental.
b. Either party may terminate this Agreement
upon breach by the other of any material
term in the Agreement, which breach has not
been cured to the reasonable satisfaction of
the non-breaching party within thirty (30)
days after notice of such breach.
c. Upon termination of this Agreement, Dentist
shall be entitled to receive such
compensation, if any, accrued under the
terms of this Agreement, but unpaid, as of
the date of said termination.
7. DISCLOSURE OF INFORMATION. All records, files, reports and
documents pertaining to services rendered by Dentist to First Dental hereunder
or to patients by First Dental, or to the operations of First Dental, belong to
and shall remain the
- 5 -
6
property of First Dental (subject to Dentist's right to retain photocopies of
patient records for patient care purposes). Dentist agrees that First Dental's
trade secrets, as they may exist from time to time, are valuable, special, and
unique assets of First Dental. Dentist also agrees that the systems, protocols,
policies, procedures, manuals, reports, data bases, documents, instruments and
other materials used by First Dental are proprietary to First Dental, and are
valuable, special and unique assets of First Dental's business. Director shall
not, during or after the term of this Agreement, disclose First Dental's
proprietary information or trade secrets to any other firm, person, corporation,
association, or other entity for any reason or purpose whatsoever, without the
written consent of First Dental.
8. STATUS OF THE PARTIES. It is expressly understood and agreed
that, in the performance of services under this Agreement, Dentist shall at all
times be and act as an independent contractor with respect to First Dental, and
not as an employee of First Dental. Accordingly, except as otherwise set forth
in this Agreement, First Dental shall neither have nor exercise any specific
control or direction over the particular methods by which Dentist shall perform
the services required by this Agreement. Dentist understands and agrees that (i)
Dentist will not be treated as an employee of First Dental for federal or state
tax purposes; (ii) First Dental will not withhold on behalf of Dentist any sums
for income tax, unemployment insurance, social security, or any other
withholding pursuant to any law or requirement of any governmental body or make
available any of the benefits afforded to employees of First Dental; (iii) First
Dental is obligated to report all payments to Dentist hereunder or otherwise in
excess of $600 per year to the Internal Revenue Service; and (iv) all of such
payments, withholdings, and benefits, if any, are the sole responsibility of
Dentist.
9. Miscellaneous.
-------------
9.1 ACCESS OF THE GOVERNMENT TO RECORDS. To the extent
that the provisions of Section 1861(c)(1)(I) of the Social Security Act [42
U.S.C. [Section]1395x(v)(I)] are applicable to this Agreement, the parties
agree to comply therewith.
9.2 GOVERNING LAW. This Agreement shall be governed and
interpreted in accordance with, and the rights of the parties shall be
determined by, the laws of the Commonwealth of Massachusetts.
9.3 SEVERABILITY. If any provision of this Agreement
shall be declared invalid or illegal for any reason whatsoever, then
notwithstanding such invalidity or illegality, the remaining
- 6 -
7
terms and provisions of this Agreement shall remain in full force and effect in
the same manner as if the invalid or illegal provision had not been contained
herein.
9.4 AMENDMENT; ENTIRE AGREEMENT. No alteration or
modification of this Agreement shall be valid unless made in writing and
executed by each of the parties hereto. This Agreement contains the entire
agreement among the parties regarding the subject matter hereof and supersedes
all other written or oral understandings thereon.
9.5 COUNTERPARTS. This Agreement may be executed in more
than one counterpart, and each executed counterpart shall be considered as the
original.
9.6 VESTED RIGHTS. No amendment, supplement or
termination of this Agreement shall affect or impair any rights or obligations
which shall have theretofore matured hereunder.
9.7 SUCCESSORS. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
representatives.
9.8 NOTICES. Any notice or other communication by one
party to the other shall be in writing and shall be given, and be deemed to have
been given, if either hand delivered or mailed, postage prepaid, certified mail
(return receipt requested), addressed as follows:
First Dental: First New England Dental Centers, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: President
Dentist: The address shown on the
signature page hereof.
Any party may change the address for notice by notifying the other party, in
writing, of the new address.
9.9 FURTHER ACTIONS. Each of the parties agrees that it
shall hereafter execute and deliver such further instruments and do such further
acts and things as may be required or useful to carry out the intent and purpose
of this Agreement and as are consistent with the terms hereof.
9.10 ASSIGNMENT. No party may assign this Agreement
without written consent of the other.
- 7 -
8
9.11 SURVIVAL. The covenants contained in paragraphs 3.4,
5, 7, 8, 9.1, and 9.9 shall survive any termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
under seal as of the Effective Date.
FIRST NEW ENGLAND DENTIST
DENTAL CENTERS, INC.
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
------------------------- ------------------------
Name of Dentist: Xxxxxx Xxxxxx
Address: 000 Xxxxxx Xx. #0
Xxxxxx, XX 00000
Effective Date: 12-29-95
Term of Agreement: Ten Years
Annual Compensation: $60,000
- 8 -
9
EXHIBIT A
Consultant Services
-------------------
1. Oversee all aspects of the clinical services provided by the P.C.;
2. Manage and administer the delivery of dental services by the P.C. in a
manner which complies with the rules and regulations of First Dental,
all applicable federal, state and local laws the Massachusetts
Department of Public Health and other applicable regulatory agencies;
3. Supervise ancillary clinical personnel;
4. Review and appraise the professional performance of dental personnel,
including making recommendations to First Dental regarding dentists'
credentials;
5. Developing, implement, and periodically update clinical and operational
protocols, procedures, manuals, rules and regulations and quality
control policies and procedures for the P.C. as may be necessary (i) to
ensure the therapeutic efficacy, appropriateness, medical necessity,
consistency, safety and quality of such services, and (ii) to ensure
that such services are rendered at all times in a competent, ethical
and professional manner, in accordance with acceptable medical
practice, and in compliance with all applicable statutes, regulations,
rules, orders and directives of federal, state, local and other
governmental and regulatory bodies having competent jurisdiction;
6. Consult with First Dental to ensure that there is a dentist-in-charge
of the P.C.'s practice seven (7) days a week;
7. Consult with First Dental on the establishment of ethical and moral
standards for use in the business of First Dental and the P.C.;
8. Consult with First Dental to ensure that First Dental and the P.C. meet
all necessary standards relating to dental services - local, state,
federal, and professional;
9. Fill in as clinicians on an emergency basis as necessary when a dentist
is needed at any location;
10. Represent First Dental in all professional activities;
10
11. Monitor the practice patterns of each dentist and do a review every six
months;
12. Maintain training of all dentists;
13. Supervise case presentations on a monthly basis;
14. Work with the other consultant(s), if any, and hire and fire all
general dentists, specialists, hygienists, assistants and other
healthcare professionals;
15. Work with other consultant(s), if any, to ensure a site visit to each
facility on a monthly basis;
16. Meet with management on a weekly basis to plan overall strategy;
17. Assist in acquisition process as needed and review all potential
acquisitions;
18. Work with managed care groups as necessary to integrate their plans
into First Dental;
19. Represent First Dental professionally before potential investors;
20. Report to the board of directors on a timely basis as to status of the
company
21. Such other administrative duties as may reasonably be assigned from
time to time by First Dental.
- ii -
