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EXHIBIT 10.11
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (the "Agreement") is made by and
between MODERN DENTAL PROFESSIONALS/UDC-- XXXXXXXXXXXX, P.A., a professional
corporation organized and existing under the laws of the State of Arkansas
("P.A."), and UNITED DENTAL CARE, INC., a corporation organized and existing
under the laws of the State of Arkansas ("Service Company").
RECITALS
A. P.A. is engaged in the practice of dentistry through dentists
licensed by the Arkansas State Board of Dental Examiners and who are employed
by P.A. or who have entered into independent contractor agreements with P.A. to
provide services to patients of P.A. and conducts such practice at dental
centers located in the State of Arkansas (the "Dental Centers").
B. Service Company has been organized for the purpose of
providing comprehensive management and related administrative services to
dental practices and has developed extensive expertise and experience in the
operation, management and marketing of the non-dental aspects of dental centers
of the type operated by P.A.
C. P.A., in order to enable its dental employees and independent
contractors to focus their efforts and time on the practice of dentistry and
the delivery of dental services to the public, has requested, and Service
Company has agreed to provide comprehensive management and related
administrative services.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. Definitions.
(a) "Act" means the Arkansas Dental Practice Act and the
Regulations of the Arkansas State Board of Dental Examiners adopted pursuant
thereto.
(b) "Cost of Dental Services" means: the aggregate
compensation of dentists who are employed by or who are independent contractors
with P.A. at the Dental Centers and other personnel who must be employed by the
P.A. under applicable law including dental hygienists ("Support Personnel")
together with the cost of expenses, taxes and benefits of such dentists and
Support Personnel including, but not limited to, vacation pay, sick pay, health
care expenses, professional dues, expense reimbursement, discretionary bonuses
or incentive payments, if any, based on profitability or productivity and other
expenses and payments required to be made to or for the benefit of the dentists
or the Support Personnel pursuant to their employment agreements or independent
contractor agreements or
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otherwise plus P.A.'s portion of all employment and payroll taxes; other
expenses incurred by P.A. in carrying out its obligations under this Agreement;
and the costs of malpractice insurance, in each case on an accrual basis.
(c) "Dental Board" means the Arkansas State Board of
Dental Examiners established under the Act.
(d) "Dental Center" means the facility or facilities
operated by P.A. and at which Dental Services are, or in the future may be,
rendered by P.A. identified on Exhibit A hereto, as amended, supplemented or
modified from time to time.
(e) "Dental Services" means all services rendered by P.A.
which constitute the practice of dentistry as defined by the Act.
(f) "Net Pre-Tax Income" means Net Revenues less the
total of Service Company Costs and the Cost of Dental Services, but without
regard for the provision for income taxes.
(g) "Net Revenues" means all Revenues net of refunds or
billing adjustments.
(h) "Non-Dental Personnel" means all personnel including,
but not limited to, accountants, bookkeepers and receptionists who perform
services which do not constitute the practice of dentistry or who are not
required by applicable law to be employees of P.A.
(i) "Revenues" means all amounts on an accrual basis
which P.A. receives or becomes entitled to receive for any services or sales of
products or otherwise, including, without limitation, for the performance of
Dental Services for its patients by dentists or Support Personnel who are
employees or independent contractors of P.A. or for the sale of products
including pharmaceuticals.
(j) "Service Company Costs" means all costs incurred by
Service Company, including indirect overhead and other expenses attributable to
the carrying out of its obligations under this Agreement, in each case on an
accrual basis.
(k) "Support Personnel" shall have the meaning specified
in the definition of Cost of Dental Services.
2. Engagement to Provide Services. During the term of this
Agreement and all renewals and extensions thereof, P.A. engages Service Company
to provide sole and exclusive development, management and administrative
services with respect to all non-dental functions relating to the operation of
the Dental Centers, and Service Company agrees to furnish to P.A. all of the
non-dental development, management and administrative services needed by P.A.
in connection with the operation of the Dental Centers. Pursuant to its
engagement hereunder,
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Service Company shall control all aspects of P.A.'s business other than those
aspects which relate to the provision of dental services, as contemplated by
Section 4.
3. Services. The non-dental development, management and
administrative services to be provided by Service Company shall include the
following:
(a) Bookkeeping and Accounts. Service Company shall
provide all bookkeeping and accounting services necessary or appropriate to the
functioning of the Dental Centers including, but not limited to, maintenance,
custody and supervision of all business records, ledgers, journals and reports,
and the preparation, distribution and recordation of all bills and statements
for professional services rendered by P.A. including the billing and completion
of reports and forms required by insurance companies, dental maintenance
organizations, governmental agencies or other third-party payors (collectively,
the "Business Records"); provided, however, that such Business Records shall
not be deemed to include patient records and other records or documents which
relate to patient treatment by dentists.
(b) Billing; Collections. Service Company shall be
responsible, for and on behalf of P.A., as its agent, for billing and
collecting the charges made with respect to all Dental Services provided by
P.A. at the Dental Centers. The extent to which Service Company attempts to
collect such charges, the methods of collection and the amount of settlements
with respect to disputed charges, and the determination of which charges are
not collectible, shall be within the sole discretion of the Service Company;
provided that Service Company will comply with all applicable law, including
without limitation, the Federal Fair Debt Collection Practice Act.
(c) Non-Dental Personnel. Service Company shall, in its
sole discretion but following consultation with P.A., select for employment and
terminate the employment of all Non-Dental Personnel as Service Company shall
deem necessary or advisable, and shall be responsible for the supervision,
direction, training and assigning of duties of all Non-Dental Personnel, with
the exception of activities carried on by Non-Dental Personnel which must be
under the direction or supervision of licensed dentists in accordance with
applicable law and regulations. Unless otherwise specifically agreed in
writing, all Non-Dental Personnel shall be employees or independent contractors
employed or engaged by Service Company, and the selection and terms of
employment or engagement, including the rates of compensation, supervision,
direction, training and assignment of duties of all Non-Dental Personnel shall
be determined and controlled exclusively by Service Company.
(d) Dental Personnel. Service Company shall, in
consultation with P.A., establish guidelines for the selection, hiring and
firing of dentists and Support Personnel by P.A. and shall recruit and evaluate
prospective dentists and Support Personnel as employees or independent
contractors of P.A., provided that all dentists and Support Personnel shall be
employees of or independent contractors to P.A.
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(e) Marketing and Advertising Programs. Service Company
shall: develop marketing and advertising programs for P.A.; provide advice and
assistance to P.A. on overall marketing programs, and determine and analyze the
effect of such programs; plan, create, write and prepare advertising materials;
negotiate contracts with advertising media for space and time; and obtain
services necessary in connection with the production and presentation of
advertisements.
(f) Insurance. Service Company shall, in its sole
discretion but following consultation with P.A., make reasonable efforts to
obtain and maintain in full force and effect during the term of this Agreement,
and all extensions and renewals thereof, public liability and property
insurance which Service Company deems appropriate to protect against loss,
claims, and other risks, or which is necessary to comply with the terms of
lease agreements for the Dental Centers, and Service Company shall assist P.A.
and the dentists in obtaining professional liability insurance.
(g) Supplies. Service Company shall acquire and supply to
P.A. all dental and non-Dental supplies which may be reasonably required in
connection with the operation of the Dental Centers.
(h) Negotiation; Plans. Service Company shall carry on
and be responsible for all negotiations, in consultation with P.A., with
managed care plans, preferred provider plans, insurers and other third party
payors relating to the provision of services by P.A. Service Company shall
develop, negotiate, market and administer prepaid managed and other health
plans for the providing of dental care and shall obtain licensure as a third
party administrator, and any other appropriate licenses, registrations or
certificates, if and to the extent required by applicable law.
(i) Bank Accounts, Cash Management. Service Company is
authorized to establish and maintain for and on behalf of P.A. bank accounts
for the collection and disbursement of P.A.'s funds. Service Company is
authorized to disburse funds from such accounts for the payment of costs
incurred by or on behalf of P.A. in accordance with this Agreement, for Service
Company's compensation, and for all other costs, expenses, and disbursements
which are incurred in connection with this Agreement. Service Company shall
manage all cash and cash equivalents of P.A.
(j) Tax Returns, Reports. Service Company shall be
responsible for preparing and filing all tax returns and reports required or
necessary in connection with the operation of the Dental Centers.
(k) Overall Supervision. Service Company shall provide
P.A. with overall supervision and management, including maintenance and repair,
of the Dental Centers and all furniture, fixtures, furnishings, equipment, and
leasehold improvements located in or used at the Dental Centers.
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(l) Equipment and Furnishings. Service Company shall
provide and maintain, either directly or through appropriate lease agreements,
all necessary equipment and furnishings for the Dental Centers.
(m) New Dental Centers. Service Company shall provide
planning and studies to determine the location of new Dental Centers (including
acquired Dental Centers), provide designs for such new Dental Centers, obtain
leases for the space for Dental Centers, and do all things necessary in
connection with equipping of such new Dental Centers for operation, and shall
make such space available to P.A. Service Company shall amend, modify or
supplement Exhibit A to this Agreement in connection with the establishment of
new Dental Centers, as appropriate.
(n) Financial Statements and Budgets. Service Company
shall prepare monthly and annual financial statements containing a balance
sheet and statement of income for P.A. Annual financial statements shall be
delivered to P.A. within 90 days after the end of each fiscal year and monthly
financial statements shall be delivered to P.A. within 30 days after the end of
each calendar month. Service Company shall prepare, in reasonable detail, an
annual operating and capital budgets for P.A. which shall be delivered to P.A.
within 30 days after the end of each fiscal year, with Service Company
retaining final authority with respect to budgeting including without
limitation as to compensation and payments to employees and independent
contractors.
(o) Litigation Management. Service Company will (i)
manage and direct the defense of all claims, actions, proceedings, or
investigations against P.A. or any of its officers, directors or employees in
their capacity as such, and (ii) manage and direct the initiation and
prosecution of all claims, actions, proceedings or investigations brought by
P.A. against any person other than the Service Company.
(p) Access. Service Company shall grant access to its
facilities to all employees and independent contractors of P.A. for the purpose
of performing Dental Services in connection with the business of the Dental
Centers.
(q) Business Operations. Service Company shall generally
control and manage all aspects of business of the Dental Centers other than
those aspects relating to the provision of Dental Services which under
applicable law are required to be subject to the control of P.A., as
contemplated by Section 4.
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4. Conduct of Dental Practice and Other Matters.
(a) Practice of Dentistry. P.A. shall be solely and
exclusively in control of all clinical aspects of the practice of dentistry and
the delivery of Dental Services at the Dental Centers, including the exercise
of independent professional judgment regarding the diagnosis or treatment of
any dental disease, disorder or physical condition (which Service Company shall
not control, attempt to control, influence, attempt to influence or otherwise
interfere with), and P.A. shall be responsible for providing all Dental
Services and for the payment of all Costs of Dental Services. All persons to
whom such Dental Services are provided shall be patients of P.A. and not of
Service Company, and Service Company shall not have or exercise any control or
direction over the manner or methods with which Dental Services and related
duties are performed or interfere in any way with the exercise by the dentists
who are employees or independent contractors of P.A. of their professional
judgment. P.A. shall be solely responsible for assuring that all dentists who
are employed or who are independent contractors of P.A. hold all necessary
licenses from the State of Arkansas and that such licenses are current and in
good standing, and that such professional services are performed in accordance
with the applicable ethical standards, laws and regulations relating to
professional practice in the State of Arkansas. P.A. shall take all actions
necessary to maintain its status as a professional corporation including
provision for succession so that the outstanding shares of P.A. are owned at
all times by a person licensed to practice dentistry in the State of Arkansas.
(b) Patient Referrals. It is not a purpose of this
Agreement to induce or encourage the referral of patients. The parties agree
that the benefits to P.A. and Service Company do not require, are not payment
or inducement for, and are not in any way contingent upon the admission,
referral or any other arrangement for the provisions of any item or service
offered by Service Company to any of P.A.'s patients or for the referral of any
patient.
(c) Noncompetition. P.A. hereby irrevocably appoints
Service Company 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
(collectively, "Non-competition Agreements") of which it is the beneficiary.
During the term of this Agreement, P.A. shall not establish, operate or provide
dental services at any dental office, clinic or other health care facility
providing services substantially similar to those provided by P.A. pursuant to
this Agreement anywhere within 100 miles of any facility operated by Service
Company. The provisions of this Section 4(c) shall not in any way limit or
otherwise affect the terms and provisions of the Non-Competition Agreement
dated as of November 7, 1996 by and among Monarch Dental Corporation, Xxxxxx X.
Xxxxxxxxxxxx, D.D.S. and the other parties identified on the signature pages
thereto (the "Xxxxxxxxxxxx Non-Competition Agreement"). To the extent of any
conflict between the provisions of this Section 4(c) and the provisions of the
Xxxxxxxxxxxx Non-Competition Agreement, the provisions of the Xxxxxxxxxxxx Non-
Competition Agreement shall control.
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(d) Attorney-in-Fact. P.A. hereby appoints Service
Company for the term of this Agreement to be its true and lawful
attorney-in-fact for all purposes relating to or arising in connection with the
provisions by Service Company of the comprehensive management and related
administrative services as provided in this Agreement, including without
limitation the provisions of Section 3(b) and Section 3(i). This power of
attorney and the power of attorney granted under Section 4(c) are coupled with
an interest and shall be irrevocable and remain in effect for the term of this
Agreement.
5. Compensation of Service Company.
(a) Assignment to Service Company. P.A. assigns to
Service Company all of P.A.'s right and interests in all Revenues such that all
Revenues shall be paid to and collected by Service Company and all Revenues of
P.A. (and all accounts receivable relating thereto) shall be reported on the
income statement and balance sheet of Service Company 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 Medicare or Medicaid accounts). P.A. hereby issues a
standing instruction, which it shall confirm upon request from time to time,
that all payments due to P.A. shall be remitted directly to Service Company as
its agent and attorney-in-fact hereunder. To the extent that the foregoing
assignment of Revenues shall be ineffective for any reason, P.A. hereby grants
a security interest in all accounts receivable, contract rights, Revenues and
general intangibles of P.A. to Service Company to secure all indebtedness and
obligations of P.A. to Service Company arising under or in connection with this
Agreement. At the request of Service Company, P.A. shall execute all documents
and instruments necessary to evidence and perfect the foregoing security
interest.
(b) Compensation of Service Company. As consideration for
the services provided by Service Company under this Agreement, Service Company
shall receive a service fee (the "Service Fee") in an amount equal to: (i)
Service Company Costs, plus (ii) an amount equal to the lesser of Net Pre-Tax
Income or 30% of Net Revenues.
(c) Application of Net Revenues. Service Company shall
apply Net Revenues as follows:
(i) First, Service Company shall remit to P.A.,
or cause to be paid on behalf of P.A., from
Net Revenues an amount equal to the Costs of
Dental Services and such other payments or
disbursements as P.A. shall direct Service
Company to make in accordance with this
Agreement;
(ii) Second, Service Company shall retain out of
Net Revenues an amount equal to the Service
Fee; and
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(iii) Third, Service Company shall remit all
remaining Net Revenues to P.A.
(d) Adjustment. The Service Fee shall be payable monthly
in arrears based upon Service Company Costs and P.A.'s Net Revenues in the
prior month. Adjustments to the estimated payments shall be made to reconcile
actual amounts due under Section 5(b) by the end of the following month. The
Service Fee shall be reviewed annually and at such other times as may be deemed
appropriate and adjusted in such manner as the parties may agree; in the
absence of such agreement, the Service Fee then in effect shall continue in
effect.
6. General Obligations of P.A. and Service Company. P.A. and
Service Company each agrees to cooperate fully with the other in connection
with the carrying out of their respective obligations under this Agreement and
to employ their best efforts to resolve any dispute which may arise under or in
connection with the carrying out of this Agreement.
7. Term. The term of this Agreement shall be for a period of 40
years from March 31, 1997 and, unless either party shall give notice to the
contrary at least 180 days prior to the thirty-first anniversary of this
Agreement or any anniversary thereafter, the term shall be extended for an
additional year on the thirty-first anniversary and on each anniversary
thereafter so that at each anniversary of this Agreement the remaining term
shall always be, unless notice is given, ten (10) years.
8. [Omitted].
9. Termination. This Agreement may be terminated as follows:
(a) By mutual agreement of the parties.
(b) If either party fails to perform any of its
obligations under this Agreement and, after written notice from the other party
demanding that such failure be cured, the party on whom such notice is served
shall fail to cure such breach within 30 days after such notice or, if such
breach will reasonably require more than 30 days to cure, such party is not
diligently pursuing efforts to cure such breach; provided, however, that if the
party on whom such demand is made elects to submit such dispute to arbitration,
no action to terminate this Agreement can be taken until such arbitration has
been finally adjudicated and then only if the party guilty of such failure
shall fail to comply with the arbitration award within 60 days after its
issuance.
(c) If any bankruptcy, insolvency or receivership
proceedings are instituted by or against the P.A. and not dismissed within
sixty (60) days after the commencement of such proceedings or if the P.A. party
shall voluntarily dissolve.
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(d) As of any anniversary date of this Agreement, by
Service Company delivering written notice to P.A. of such termination of at
least 90 days prior to such anniversary date.
If this Agreement is terminated for any reason, P.A. shall have the
right, exercisable within sixty days after the date of termination, to purchase
equipment and furnishings provided by Service Company at the Dental Centers for
a purchase price equal to the appraised fair market value thereof.
10. Relationship of Parties. This Agreement is not intended to and
shall not be construed as creating the relationship of employer and employee,
partnership, joint venture or association between Service Company and P.A.
Since the dentists who perform services for the P.A. are not employees or
independent contractors of Service Company, Service Company shall not withhold
on their behalf any amounts for income tax, social security, unemployment
compensation, workers compensation or other similar withholding provisions and
all such withholding shall be the obligation of P.A.
11. Confidential Information. Each of P.A. and Service Company
acknowledges that it will have access to information of proprietary nature
owned by the other including (i) information on the systems, policies and
procedures developed by the Service Company in connection with the providing of
management services for dental centers and dental practices and (ii) patient
information. P.A. acknowledges that the Service Company has a proprietary
interest in such information, that such information constitutes trade secrets
and that P.A. does not, by reason of this Agreement, acquire any continuing
right or interest in such proprietary information or trade secrets. P.A. will
hold such proprietary information and trade secrets in confidence and will not
disclose them, either during the term of this Agreement or thereafter, to any
person or entity other than employees or independent contractors of P.A. or
Service Company without the prior written consent of Service Company or as may
be required by law. Service Company will preserve the confidentiality of all
files and records of P.A. including patient records and comply with all
federal, state and local laws, rules and regulations relating to the
confidentiality of the P.A.'s files and records (including patient records).
Service Company will use the information in such records only for the limited
purposes necessary to perform the services of Service Company set forth herein
(including billing and collections) and shall not use patient names, addresses
or any other patient information for marketing or any other purpose except as
expressly permitted by this Agreement without the prior written consent of P.A.
Each of P.A. and Service Company acknowledges that it does not have an adequate
remedy at law for a breach of this Section 11, will suffer irreparable harm in
the event of such breach and that, therefore, the other party shall be entitled
to injunctive and other equitable relief for the enforcement of this Section
11. The provisions of this Section 11 shall survive termination of this
Agreement.
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12. Miscellaneous.
(a) Assignment. This Agreement shall not be assignable by
either party hereto without the express prior written consent of the other;
provided, however, that this Agreement shall be assignable by Service Company
to any of its affiliates or successors without the consent of P.A.
(b) Waiver. Waiver of any agreement or obligation set
forth in this Agreement by either party shall not prevent that party from later
insisting upon full performance of such agreement or obligation and no course
of dealing, partial exercise or any delay or failure on the part of any party
hereto in exercising any right, power, privilege, or remedy under this
Agreement or any related agreement or instrument shall impair or restrict any
such right, power, privilege or remedy or be construed as a waiver therefor. No
waiver shall be valid against any party unless made in writing and signed by
the party against whom enforcement of such waiver is sought.
(c) Amendment. No amendment or change in the provisions
of this Agreement shall be effective unless made in writing and signed by and
on behalf of the parties to this Agreement or their successors and assigns.
(d) Entire Agreement. This Agreement constitutes the
entire agreement between the parties in connection with the subject matter of
this Agreement and supersedes all prior agreements entered into before the
effective date of this Agreement, amending and restating in its entirety the
Management Services Agreement dated as of March 31, 1997.
(e) Notices. The mailing addresses of Service Company and
P.A. for the purposes of any notices to be given under this Agreement are as
follows:
If to Service Company: United Dental Care, Inc.
0000 Xxxx Xxxxxxxxxx
Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: President
With a copy to: Monarch Dental Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: President
If to P.A.: Modern Dental Professionals/UDC--
Girlinghouse, P.A.
0000 Xxxxx 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attn: President
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] (f) Binding Effect. Subject to the provisions set forth
in this Agreement, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and upon their respective successors and assigns.
(g) Arbitration. Any disputes arising under this
Agreement shall be resolved by arbitration; provided, however, that arbitration
shall not apply to the enforcement of the Service Company's rights under
Section 11. Any party electing to submit an action to arbitration shall give
written notice to the other party of such election. The dispute shall be
submitted to arbitration in accordance with the Rules of the American
Arbitration Association. Such arbitration shall be conducted, unless otherwise
agreed by the parties, by a single arbitrator in Little Rock, Arkansas. The
award of the arbitrator can be confirmed or enforced in any court of competent
jurisdiction. The prevailing party in any arbitration shall be entitled to
recover all costs incurred by such party in connection with such proceedings,
including reasonable attorney fees.
(h) Severability. If any one or more of the provisions of
this Agreement is adjudged to any extent invalid, unenforceable, or contrary to
law by a court of competent jurisdiction, each and all of the remaining
provisions of this Agreement will not be affected thereby and shall be valid
and forcible to the fullest extent permitted by law.
(i) Governing Law. This Agreement shall be governed by
and enforced in accordance with the laws of the State of Arkansas.
(j) Change in Law. If after the effective date of this
Agreement, any new law, rule or regulation becomes effective which renders
illegal the structure of the relationship between P.A. and the Service Company
set forth in this Agreement, or otherwise substantially impairs the economics
of the parties hereunder, this Agreement shall not terminate, but the parties
hereto agree to exclusively negotiate with each other in good faith for a
period of six months following such change of law or circumstance with respect
to the subject matter hereof. To the maximum extent possible, any amendment
hereto shall preserve the underlying economic and financial arrangements
between P.A. and the Service Company.
IN WITNESS WHEREOF, the parties have signed this Agreement and agreed
that it shall be deemed effective as of March 31, 1997.
SERVICE COMPANY: P.A.:
UNITED DENTAL CARE, INC. MODERN DENTAL PROFESSIONALS/UDC--
XXXXXXXXXXXX, P.A.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxxxxxxx
------------------------- ---------------------------------
Name: Xxxx X. Xxxx Name: Xxxxxx X. Xxxxxxxxxxxx, D.D.S.
Title: Vice President Title: President
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EXHIBIT A
Locations of Dental Centers
0000 Xxxxx 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
