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Exhibit 10.12
CONSULTING AGREEMENT
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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
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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.
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(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
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(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.
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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.
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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.
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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
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Dentist's insurer during any period prior to, during, or after the term of this
Agreement.
6. Term and Termination.
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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.
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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
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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.
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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
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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.
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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, President /s/ Xxxxxx Xxxxxx
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Name of Dentist: Xxxxxx Xxxxxx, D.D.S
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Address: 000 Xxxxxx Xx.
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Xxxxxx, XX 00000
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Effective Date: 12-29-95
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Term of Agreement: Ten Years
Annual Compensation: $60,000
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EXHIBIT A
Consultant Services
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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;
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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.
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