AGREEMENT FOR CONSULTING SERVICES
This Agreement for Consulting Services ("Agreement") is made and entered
into by and between SAFEGUARD HEALTH ENTERPRISES, INC., a Delaware Corporation,
(hereinafter referred to as "SAFEGUARD"), and XXXXXX X. XXXXXXX, DDS (hereafter
referred to as "CONSULTANT"), as of this first day of June, 2000, and is made
with reference to the following facts:
A. SAFEGUARD is a Delaware Corporation that is the parent corporation
of various corporations specializing in dental managed care and indemnity plans
and products.
B. CONSULTANT is an individual who is experienced in the dental care
industry and is a licensed dentist.
C. SAFEGUARD desires to take advantage of CONSULTANT'S knowledge and
expertise, and CONSULTANT desires to render consulting services to SAFEGUARD on
the terms and conditions set forth herein:
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions set forth herein, the parties do hereby agree as follows:
1. PURPOSE OF THE AGREEMENT. CONSULTANT shall provide consulting
services and advice to SAFEGUARD as requested by SafeGuard on all aspects of the
dental managed care industry, including but not limited to acting as a
spokesperson for SAFEGUARD within the dental managed care industry and the
professional community, as well as assistance in maintaining SAFEGUARD client
relationships. Such consulting services, including those set forth in this
paragraph and such other services, shall be provided on a continuing basis for
as long as this Agreement is in effect. CONSULTANT shall report on his
activities on behalf of SAFEGUARD to SAFEGUARD'S Chief Executive Officer.
2. SERVICES PROVIDED. SAFEGUARD recognizes that CONSULTANT has other
outside interests and will not spend his entire time as a consultant to
SAFEGUARD. However, CONSULTANT covenants and agrees to make available to
SAFEGUARD eight (8) days per month while this Agreement is in effect, consulting
with and providing services to SAFEGUARD at such times reasonably consistent
with SAFEGUARD's request, and consistent with the objectives of this Agreement
as may be required. The parties hereto acknowledge that CONSULTANT is a
resident of Orange County, California and nothing contained herein shall require
CONSULTANT to relocate.
3. TERM OF AGREEMENT. The term of this Agreement shall be for a period
of twenty four months commencing on June 1, 2000 and continuing through May 31,
2002. This Agreement may be terminated immediately by SAFEGUARD for an act of
fraud or gross negligence by CONSULTANT.
Exhibit 10.19
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4. COMPENSATION. In consideration of the services provided by
CONSULTANT to SAFEGUARD, it is agreed that during the term hereof, SAFEGUARD
shall pay CONSULTANT the amount of $16,666.67, per month, payable on the
twentieth day of each month this Agreement in effect, commencing on June 20,
2000. CONSULTANT shall also receive as additional compensation, a bonus for
year 2000 in an amount equal to one percent (1%) of the audited and reported
EDITDA results for SafeGuard for calendar year 2000, after accrual for
CONSULTANT'S bonus and all management incentive bonuses, which amount shall be
paid upon completion of SAFEGUARD'S annul certified financial audit. CONSULTANT
shall also be entitled to participate in a bonus plan for year 2001 designed to
parallel the bonus plan for SAFEGUARD'S Chief Executive Officer, so as to yield
a bonus of $40,000, if SAFEGUARD achieves certain targeted financial results
during 2001. For fiscal year 2002, CONSULTANT shall be entitled to participate
in a bonus plan designed to yield $40,000, provided SAFEGUARD achieves certain
targeted financial results during 2002, prorated to the number of months this
Agreement is in effect during 2002. CONSULTANT shall also receive options to
purchase 200,000 shares of SAFEGUARD common stock at $1.00 per share to be
represented by a separate Stock Option Agreement between the parties.
5. EXPENSES. SAFEGUARD shall reimburse CONSULTANT for all reasonable
business related expenses incurred by CONSULTANT while providing consulting
services pursuant to this Agreement, provided however, that CONSULTANT shall
have obtained SAFEGUARD'S Chief Executive Officer's written approval prior to
incurring expenses in excess of $1,000 in any one month this Agreement is in
effect or during any one business trip. Such expenses shall be reimbursed to
CONSULTANT within thirty days after CONSULTANT furnishes SAFEGUARD with the
proper forms and receipts for such expenses. CONSULTANT shall be responsible
for all expenses he incurs in connection with his performance of this Agreement,
except as specifically provided for herein.
6. INDEPENDENT CONTRACTOR. It is acknowledged and agreed that during
the term of this Agreement, (a) the CONSULTANT is a self-employed independent
contractor; and (b) CONSULTANT shall not be deemed to be an employee, agent or
other fiduciary of SAFEGUARD for any purpose, including but not limited to, (i)
inclusion in any retirement benefit plan for the employees of SAFEGUARD, (ii)
participation in any plan or program offering life, accident, and/or health
insurance for the employees of SAFEGUARD, or (iii) participation in any medical
reimbursement plan or other fringe benefit plan for the employees of SAFEGUARD,
with the exception of SAFEGUARD'S Stock Option Plan, as may be applicable, or
any rights CONSULTANT may have as a Director of SAFEGUARD, as may be applicable.
7. WITHHOLDING AND TAXES. It is acknowledged and agreed that the
relationship between CONSULTANT and SAFEGUARD does not require nor provide for
any Social Security contributions, Medicare contributions, other payroll tax
contributions or Workers' Compensation coverage by SAFEGUARD on the CONSULTANT'S
behalf, nor does this relationship require any withholding of federal, state or
local income tax or payment by SAFEGUARD of any such taxes. Payment of any and
all federal, state and local income taxes and other employment related taxes
including self-employment taxes, is the sole responsibility of CONSULTANT.
8. ASSIGNMENT. This Agreement may be assigned by SAFEGUARD to any
successor to all or substantially all of the business or assets of SAFEGUARD.
This Agreement shall inure to the benefit of and shall be binding on the parties
and their respective successors and assigns. This Agreement is intended to
secure the personal services of CONSULTANT. It shall not be assignable, nor the
duties delegated thereunder by CONSULTANT, without the express written consent
of SAFEGUARD.
Exhibit 10.19
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9. HOLD HARMLESS. Each party agrees to and shall indemnify and hold
harmless the other party from and against any and all claims, costs, damages,
losses and expenses, including attorney's fees and costs, arising out of or
resulting from the performance of each party's obligations under this Agreement.
10. RELEASE. Each party hereto does hereby forever, finally, fully,
unconditionally and completely release, relieve, acquit, remise and discharge
the other party, its subsidiaries, parents, affiliates, successors,
predecessors, and assigns, and all past and present employees, officers,
directors, agents, representatives, attorneys, insurers, accountants and
shareholders, each in its, his or her individual and representative capacities,
(sometimes individually and collectively referred to in this Agreement as the
"released parties") from and against any and all claims, debts, liabilities,
demands, obligations, promises, acts, agreements, liens, losses, costs and
expenses (including, without limitation, attorney's fees and related costs),
damages, injuries, suits, actions, and causes of action of whatever kind or
nature, whether known or unknown, suspected or unsuspected, matured or
unmatured, liquidated or unliquidated, contingent or fixed, at law or in equity
(hereinafter collectively "claims"), relating to any and all claims arising out
of or in any way connected with the prior employment relationship between
CONSULTANT and SAFEGUARD.
11. OFFICE SPACE AND MATERIALS. Consultant may utilize certain office
space as designated by SAFEGUARD, supplies, telephone, computers and equipment
owned by SAFEGUARD in the performance of CONSULTANT'S obligations pursuant to
this Agreement.
12. OWNERSHIP OF WORK PRODUCT. SAFEGUARD is the sole owner of all
documents, paperwork, work products and other information whether in written or
magnetic media form, which may be produced by CONSULTANT in connection with the
performance of this Agreement. CONSULTANT shall deliver such materials to
SAFEGUARD immediately upon termination of this Agreement. Nothing in this
paragraph or in this Agreement shall be interpreted as restricting CONSULTANT
from freely using and utilizing, at any time and for any reason whatsoever, his
ideas, concepts, thought process, approaches, plans, techniques, and materials
that were generated, formulated, created or developed by him at any time.
13. CONFIDENTIAL INFORMATION. CONSULTANT hereby acknowledges that
SAFEGUARD will provide certain information, materials, documentation,
descriptive literature, expertise and other such property, regardless of form,
belonging to SAFEGUARD, not otherwise available to the general public, that
constitutes confidential business information, proprietary data or trade secrets
of SAFEGUARD (collectively the "Proprietary Information") and such Proprietary
Information will be made available to CONSULTANT in confidence, solely for the
purpose of enabling CONSULTANT to perform the consulting services under and for
the term of this Agreement. CONSULTANT hereby acknowledges that he shall not
acquire any ownership rights in the Proprietary Information. During the term of
this Agreement and for a period of five (5) years after the termination of this
Agreement, CONSULTANT agrees not to disclose the Proprietary Information to any
third party, or make any independent use of the Proprietary Information, without
the prior written consent of SAFEGUARD. CONSULTANT shall not, directly or
indirectly, other than in the use in connection with this Agreement,
appropriate, use, or duplicate SAFEGUARD'S Proprietary Information, without
limitation, or any portion thereof or permit any other person, without
limitation, to appropriate, use or duplicate the Proprietary Information for
uses not directly associated with the consulting services to be provided by
CONSULTANT pursuant to this Agreement.
Exhibit 10.19
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14. NON-COMPETITION AND CONFLICTS OF INTEREST. During the term of this
Agreement and for a period of one (1) year after the termination of this
Agreement, CONSULTANT shall not work for, be a consultant to, or provide any
direct or indirect services to, nor make or cause to be made on his behalf, or
maintain an investment in any business which is engaged, either in whole or in
part, in any business which is directly competitive with or detrimental to any
businesses of SAFEGUARD, except that CONSULTANT may make or maintain an
investment of no more than five percent (5%) of any outstanding class of capital
stock of any publicly traded company, provided such class of capital stock is
regularly traded by the public, without prior written permission of SAFEGUARD
during such periods described in this section. Nothing contained in this
Agreement shall prohibit CONSULTANT from owing and/or operating dental offices
in the state of California, consistent with CONSULTANT'S license to practice
dentistry in California.
15. SEVERABILITY. The invalidity or unenforceability of a particular
provision of this Agreement shall not effect the other provisions hereof, and
the Agreement shall be construed in all respects as if all invalid or
unenforceable provisions were omitted.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties concerning the subject matter hereof. This
Agreement supersedes all negotiations, prior discussions, preliminary agreements
and that certain Employment Agreement between the parties dated as of May 25,
1995, which expired on May 31, 2000. This Agreement may not be amended except
in a writing executed by the CONSULTANT and SAFEGUARD.
17. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, regardless of the
application of conflicts of laws principles.
18. NOTICES. All notices, requests, demands and other communication
required or contemplated under this Agreement, shall be in writing and shall be
deemed to have been duly given when delivered personally or when enclosed in a
properly sealed and addressed envelope, registered or certified, return receipt
requested, and deposited, postage prepaid, in a post office or branch post
office regularly maintained by the United States Government.
Any notice to be given to SAFEGUARD under the terms of this Agreement shall
be addressed as follows:
SafeGuard Health Enterprises, Inc.
00 Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President and Chief Executive Officer
Exhibit 10.19
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Any notice to be given to CONSULTANT under the terms of this Agreement
shall be addressed as follows:
Xxxxxx X. Xxxxxxx, DDS
00000 Xxxx Xxxx Xxxxx
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000-0000
Either party may designate a different address from that set forth herein
by designating such new address in writing to the other party pursuant to this
paragraph.
19. WAIVER. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall
be binding unless executed in writing by the party making the waiver.
20. ARBITRATION. Any dispute regarding any aspect of this Agreement or
any act that allegedly has or would violate any provision of this Agreement must
be submitted to arbitration in Orange County, California, in accordance with the
rules of the Judicial Arbitration and Mediations Service ("JAMS") as the
exclusive remedy for such claim or dispute. Either party may invoke this clause
by serving on the other, in writing, a request to arbitrate. Within thirty (30)
days thereafter, either party may institute proceedings in superior court to
enforce this clause by way of reference pursuant to Section 638 of the
California Code of Civil Procedure. If the parties cannot mutually select a
judge from the JAMS panel, the superior court shall make the selection. The
decision of JAMS will be final and binding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
CONSULTANT SAFEGUARD HEALTH ENTERPRISES, INC.,
/s/ Xxxxxx X. Xxxxxxx, DDS BY: /s/ Xxxxx X. Xxxxxxx
------------------------------ --------------------------------------
XXXXXX X. XXXXXXX, DDS XXXXX X. XXXXXXX
President and Chief Executive Officer
Social Security Number: Witness:
###-##-####
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
XXXXXX X. XXXXXXXX,
Senior Vice President and Secretary
Federal Tax Identification Number
00-0000000
Exhibit 10.19
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