EXHIBIT 10.64
Draft
9/20/96
9/24/96
9/30/96
10/4/96
MARKETING AGREEMENT
THIS MARKETING AGREEMENT (the "Agreement") dated as of ___________, 1996
by and among Castle Dental Centers of New York, Inc., a New York corporation
("Castle"), Castle Dental Centers, Inc., a Delaware Corporation ("CDC"),
American Medical and Life Insurance Company, a New York insurance company
("AMLI"), and Xxxxx X. Xxxx D.D.S.("Xx. Xxxx") who agree as follows:
1. INTRODUCTION. Prior to the date of this Agreement, on September 3, 0000,
Xxxxxx, Xx. Xxxx and certain other parties entered into an Asset Purchase
Agreement (the "Asset Purchase Agreement") which contemplated the purchase by
Castle of certain identified assets and the negotiation and execution of certain
other agreements between Castle and certain other parties, all as more fully
described in the Asset Purchase Agreement. The parties hereto have entered into
this Agreement to document certain of such additional agreements reached by them
as contemplated by the Asset Purchase Agreement. Initially capitalized terms not
otherwise defined herein shall have the meanings assigned to such terms in the
Asset Purchase Agreement.
2. RECIPROCAL MARKETING ARRANGEMENT. In markets in the State of New York served
by dental practices managed by Castle in which AMLI offers dental insurance,
AMLI agrees (i) to include information provided by Castle regarding its managed
dental practices in marketing materials produced and distributed by or on behalf
of AMLI relating to dental insurance or the provision of dental services to AMLI
policyholders, and (ii) subject to the ability of AMLI to reach agreement with
such managed dental practices regarding fee structure and the ability of Castle
to perform contracted services, to maintain preferred provider relationships
with dental practices managed by Castle and to offer such dental practices as
preferred providers to AMLI policyholders and other covered parties. AMLI shall
have the right to approve the information provided by Castle for inclusion in
the AMLI marketing materials, such approval not to be unreasonably withheld.
In markets in the State of New York served by dental practices managed by Castle
in which AMLI offers dental insurance, Castle agrees to include information
provided by AMLI regarding its insurance programs in marketing materials
produced and distributed by or on behalf of dental
practices managed by Castle relating to the provision of dental services by such
managed dental practices. Castle shall have the right to approve the information
provided by AMLI for inclusion in the marketing materials produced and
distributed by or on behalf of dental practices managed by Castle, such approval
not to be unreasonably withheld.
3. RECIPROCAL RIGHT OF FIRST REFUSAL FOR ADDITIONAL MARKETS. AMLI agrees to
offer dental practices managed by Castle or one of its affiliates the right of
first refusal to participate on substantially the same terms and conditions as
set forth in Section 2 in markets in states other than New York in which AMLI
offers dental insurance. CDC agrees to cause its appropriate affiliate to offer
AMLI the right of first refusal to participate on substantially the same terms
and conditions as set forth in Section 2 in markets in states other than New
York in which an affiliate of CDC manages dental practices and in which AMLI is
licensed to offer dental insurance.
4. OBLIGATIONS SUBJECT TO REGULATORY COMPLIANCE. The obligations of CDC or its
affiliates and AMLI herein are subject to the ability of CDC or its affiliates
and/or AMLI to perform their respective obligations hereunder in compliance with
applicable laws and regulations of the jurisdictions in which the performance of
this Agreement will be undertaken. Nothing contained herein shall be construed
as requiring any party hereto to act in violation of such laws and regulations.
5. CONFIDENTIALITY. The parties hereto acknowledge that the transactions
contemplated by this Agreement involve the likelihood of each party hereto
having access to and knowledge of Confidential Information (as hereinafter
defined) of the other. CDC, on behalf of itself and its affiliates, and AMLI
each agree that it will not, during or after the term of this Agreement, in
whole or in part, disclose such Confidential Information of the other to any
person, firm, corporation, association, or other entity for any reason or
purpose whatsoever, nor shall it make use of any such Confidential Information
for its own purposes or for the purposes of others; provided, however, that
nothing in this Section shall be construed to prohibit the disclosure of such
Confidential Information by a party hereto (i) to an officer, director employee
or agent of CDC or its affiliates or AMLI who is subject to a confidentiality
obligation in favor of the disclosing party; (ii) as is reasonably necessary for
the performance of its duties and responsibilities under this Agreement; or
(iii) as otherwise required by law. If a party hereto is required by law to
disclose "Confidential Information," such party shall notify the other party, in
writing, of the nature of such disclosure and the Confidential Information to be
disclosed, as soon as is possible and/or practical, and permit such other party
the opportunity to contest or limit such disclosure.
6. CONFIDENTIAL INFORMATION DEFINED. The term "Confidential Information" shall
mean any information of CDC or its affiliates or AMLI, as the case may be
(whether written or oral), including all notes, studies, patient lists,
information, forms, business or management methods,
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marketing data, fee schedules, or trade secrets of CDC or its affiliates or
AMLI, as the case may be. Confidential Information shall also include the terms
and provisions of this Agreement and any transaction or document executed by the
parties pursuant to this Agreement. Confidential Information does not include
any information that (i) is or becomes generally available to and known by the
public (other than as a result of an unpermitted disclosure directly or
indirectly by a party hereto or its affiliates, advisors, or representatives);
(ii) is or becomes available to the receiving party on a nonconfidential basis
from a source other than a party hereto or its affiliates, advisors, or
representatives, provided that such source is not and was not bound by a
confidentiality agreement with or other obligation of secrecy to a party hereto
of which the receiving party has knowledge at the time of such disclosure; or
(iii) has already been or is hereafter independently acquired or developed by
the receiving party without violating any confidentiality agreement with or
other obligation of secrecy to a party hereto.
7. DELIVERY OF MATERIALS. Each party hereto further agrees to deliver to the
other at the termination of this Agreement, or at any other time upon request,
all correspondence, memoranda, notes, records (including computer records and
data), drawings, sketches, plans, customer lists, and other documents, which are
made, composed, or received by a party hereto solely or jointly with others,
during the term of this Agreement and which are in such party's possession,
custody, or control at such date and which are related in any manner to the
past, present or anticipated business of CDC or its affiliates or AMLI.
8. TERM. Unless terminated sooner by the written agreement of the parties
hereto, the term of this Agreement shall commence on the date hereof and
continue for the longer of (i) four years from the date hereof; (ii) the period
of time that Xx. Xxxx serves as a director of CDC; or (iii) the period until
CDC's right of first offer to purchase AMLI contained in the Ancillary Agreement
by and among the parties hereto has finally expired. This Agreement may be
extended, either during or at the end of its term, for an additional period on
the mutual agreement of the parties hereto and AMLI.
9. MISCELLANEOUS.
9.1 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors, heirs and assigns of the parties hereto.
9.2 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
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9.3 HEADINGS. The headings of the Sections and 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 hereof.
9.4 MODIFICATION AND WAIVER. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the parties hereto, except
that any of the terms or provisions of this Agreement may be waived in writing
at any time by the party which is entitled to the benefits of such waived terms
or provisions. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar). No delay on the part of either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
9.5 NO THIRD PARTY BENEFICIARY RIGHTS. This Agreement is not
intended to and shall not be construed to give any Person (other than the
parties signatory hereto any interest or rights (including, without limitation,
any third party beneficiary rights) with respect to or in connection with any
agreement or provision contained herein or contemplated hereby.
9.6 NOTICE. Any notice, request, instruction or other document to
be given hereunder by any party hereto to any other party shall be sufficiently
given if delivered in person or sent by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
if to Castle, to:
Castle Dental Centers of New York, Inc.
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
with a copy to:
Xx. Xxxxxxx X. Xxxxxxxxx
Bracewell & Xxxxxxxxx, L.L.P.
South Tower Pennzoil Place
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
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if to AMLI, to:
American Medical and Life Insurance Company
00 Xxxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx D.D.S.
with a copy to:
Xx. Xxxxxxx X. Xxxxx
Kaufmann, Feiner, Yamin,
Xxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or at such other address for a party as shall be specified by like notice, and
such notice or communication shall be deemed to have been duly given as of the
date so delivered, mailed or sent by telecopier.
9.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regards
to conflict of law rules thereof.
9.8 SEVERABILITY. If any provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled.
9.9 ENFORCEMENT. The parties hereto agree that the remedy at law
for any breach of this Agreement is inadequate and that should any dispute arise
concerning any matter hereunder, this Agreement shall be enforceable in a court
of equity by an injunction or a decree of specific performance. Such remedies
shall, however, be cumulative and nonexclusive, and shall be in addition to any
other remedies which the parties hereto may have.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed on its behalf as of the date first above written.
CASTLE DENTAL CENTERS OF NEW YORK,
INC.
By:_____________________________
Name: Xxxx X. Xxxxxx, Xx.
Title: Chief Executive Officer
CASTLE DENTAL CENTERS, INC.
By:_____________________________
Name: Xxxx X. Xxxxxx, Xx.
Title: Chief Executive Officer
AMERICAN MEDICAL AND LIFE INSURANCE
COMPANY
By:_____________________________
Name: Xxxxx X. Xxxx D.D.S.
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Xxxxx X. Xxxx D.D.S.
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