EXHIBIT 10.7
LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into this 1st day
of May 1997, by and between Dental Care Alliance, Inc., a Delaware corporation,
with its principal place of business located at 0000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxx, Xxxxxxx 00000 ("DCA"), and EIGHT MILE DENTAL, P.C., a Michigan
professional dental corporation located at 000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxx, XX
00000 ("Licensee").
RECITALS
A. As a result of time, effort, experience and the expenditure of
money, DCA has acquired unique and special skills, technique and knowledge
concerning the ownership, management and operation of dental service offices.
B. DCA has devised a unique and uniform network of entities (the
"Network"), to the members of which DCA offers a particular package of services,
including, without limitation, marketing and promotional services, discounted
products and supplies, the right to identify a dental service office in
connection with the Licensed Marks (as defined in Section 9 hereof, and other
services related to the operation of a dental service office.
C. DCA has the right to offer to others a license to use the Licensed
Marks in connection with the operation of a dental service office and to operate
as a member of the network.
D. Licensee desires to avail himself or itself to the benefits of using
the Licensed Marks and participating in the Network, subject to and in
accordance with the covenants, terms and conditions of this Agreement and any
and all other documents, agreements, schedules and exhibits executed in
connection herewith.
E. The Parties acknowledge executing simultaneously herewith a Dental
Care Alliance Inc. Administrative Service Agreement.
F. DCA desires to grant to Licensee a license for the right to identify
the Dental Office (as hereinafter defined) as a member of the Network and to use
one or more of the Licensed Marks in connection therewith.
NOW, THEREFORE, in consideration of the full and faithful performance
hereafter by Licensee of all the covenants, terms and conditions herein
contained to be performed by Licensee, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. INCORPORATION OF RECITALS.
The Recitals are hereby incorporated into this Agreement as if set
forth more fully herein.
2. GRANT OF LICENSE.
DCA hereby grants to Licensee, for a period commencing upon the date of
execution of this Agreement and expiring seven (7) years from the date hereof
(the "Original Term"), unless otherwise terminated prior thereto or extended
thereafter in accordance with the terms set forth herein, a license (the
"License") for the right:
(a) To identify the dental service office at 000 Xxxx Xxxxx
Xxxx Xxxx, Xxxxxxx, XX 00000 (the "Dental Office") as a member of the
Network and to use one or more of the Licensed Marks in connection
therewith; and
(b) For the original Term of this Agreement, unless
otherwise terminated prior thereto or extended thereafter in accordance
with the terms set forth herein, the foregoing right and license shall
be exclusive to Licensee for the Territory identified as follows:
Area defined by a five (5) mile radius from the location of
the Dental Office (the "Exclusive Territory"). This grant,
however, does not give Licensee any exclusive rights nor
impose upon DCA any obligations with respect to any other
business, licensed or otherwise, engaged in by DCA either
directly or through any other entity. Without limiting the
application of the preceding sentence, DCA specifically
retains the right, in its sole discretion, and without
granting any rights to Licensee in connection therewith, to
operate and grant other licenses for the operation of Network
Dental Offices outside of the Exclusive Territory as DCA, in
its sole discretion, deems appropriate.
3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AGREEMENT.
As a condition to the effectiveness of this Agreement, Licensee shall
upon the execution of this Agreement, shall deliver to DCA appropriate
documentation evidencing the authority of the individual executing this
Agreement on behalf of Licensee.
4. PAYMENT OBLIGATIONS OF LICENSEE.
In consideration of the License herein granted and the other services
made available by DCA to Licensee hereunder, Licensee hereby agrees and consents
as follows:
Licensee shall pay to DCA, for each month during the Original
Term unless earlier terminated in accordance with the
provisions herein, a monthly license fee (the "License Fee")
in the amount of Eight Hundred Dollars ($800.00), to be paid
on or before the tenth (10th) day of each calendar month for
the immediately preceding calendar month. For any renewal
terms of this Agreement, the License Fee shall be the License
Fee charged by DCA under DCA's then current form of License
Agreement. All License Fee payments shall be deemed earned by
DCA upon receipt and shall not be refundable under any
circumstances.
2
5. OTHER OBLIGATIONS OF LICENSEE.
5.1 INSURANCE. Licensee shall maintain, during the Original Term of the
License and any renewal terms thereof at Licensee's own expense (i) dental
malpractice liability insurance against claims for bodily and personal injury,
death and property damage caused or incurred in connection with its operation or
conduct of the Dental Office, (ii) general casualty insurance on the Dental
Office's building, equipment, signs and inventory, (iii) motor vehicle liability
insurance, to the extent applicable, and (iv) any other insurance as may be
required under applicable federal, state and local law. Such insurance policies
must name DCA as an additional insured, must be issued by insurance companies
reasonably acceptable to DCA, provided, however, that in no event shall such
insurance policies provide coverage in an amount less than One Hundred Thousand
Dollars ($100,000) per occurrence and Three Hundred Thousand Dollars ($300,000)
annual aggregate. Each such insurance policy shall also require that the
applicable insurance carrier provide DCA with at least thirty (30) calendar
days' written notice prior to any cancellation, modification or nonrenewal of
such insurance policy.
Licensee agrees to provide to DCA, promptly upon issuance thereof
evidence of the foregoing insurance with certificates of insurance naming DCA as
an additional insured. Licensee shall provide copies of all renewal policies to
DCA within ten (10) calendar days of Licensee's receipt thereof. In the event
that Licensee does not maintain the above-described insurance, allows it to
lapse, or fails to furnish DCA with satisfactory evidence thereof DCA may, but
shall not be obligated to, obtain such insurance as it deems, in its sole and
absolute discretion, to be necessary and to charge Licensee for all costs in
connection therewith. The failure of Licensee to reimburse DCA for obtaining
such coverage within ten (10) calendar days after delivery of notice thereof to
Licensee shall constitute grounds for termination under this Agreement.
5.2 SIGNAGE. In the event Licensee's Dental Office is identified with
free-standing outdoor signage, Licensee may, but shall not be required to,
display one or more of the Licensed Marks on the facing of such signage in a
reasonably appropriate manner, PROVIDED, HOWEVER, that in no event shall more
than twenty percent (20%) of the facing of any such signage be comprised of one
or more Licensed Marks or otherwise be used to identify the Dental Office's
affiliation with the Network. Notwithstanding anything contained herein to the
contrary, Licensee shall not be required to have or obtain any free-standing
outdoor signage in connection with the Dental Office.
5.3 WARRANTY PROGRAM. Licensee acknowledges that DCA requires each and
every member of the Network to extend a five (5) year limited warranty (the "DCA
Warranty") to the patients of their respective Dental Offices. In particular,
the DCA Warranty requires Licensee to guarantee, for a period of five (5) years,
all material and workmanship on all fillings, dentures, partials, bridges and
crowns provided at any Dental Office and paid for in full by the patient.
Subject to certain exceptions to be determined by DCA from time to time in its
sole discretion the DCA Warranty requires the Licensee to repair or replace the
defective product at no extra charge to the patient. Accordingly, by executing
this Agreement, Licensee hereby agrees to
3
honor the DCA Warranty and to perform services to patients of the Network in
full compliance therewith. Licensee further agrees that DCA shall be entitled,
from time to time hereafter subject to the approval of Licensee, not to be
unreasonably withheld; to amend the DCA Warranty or to adopt additional warranty
policies.
5.4 COMPLIANCE WITH LAWS. Licensee must at all times during the
Original Term of the License and any renewal terms thereof comply in all
material respects with any and all applicable federal, state and local laws,
regulations and codes of ethics in the operation of, and in the provision of
services at, the Dental Office, including without limitation, the Occupational
Safety and Health Act, as amended ("OSHA"), and any and all minimum quality and
reporting standards adopted from time to time by any applicable state or federal
Board of Dentistry, the Department of Labor or other similar governmental
agency.
6. REPRESENTATIONS AND WARRANTIES.
Licensee represents and warrants to DCA that, for so long as this
Agreement is in effect, unless it determines to discontinue the operation of the
dental office, it will maintain its existence in good standing as a sole
proprietorship, corporation, partnership or other entity, as applicable.
7. LICENSED MARKS.
Subject to the provisions of this Agreement, DCA hereby grants to
Licensee the right and license to use one or more of DCA's trademarks, service
marks, trade names, logotypes and commercial symbols (collectively, the
"Licensed Marks") in connection with the Dental Office. Notwithstanding the
foregoing, Licensee shall only display or otherwise use the Licensed Marks in
the manner or manners approved or designated by DCA in writing. Each such
display or use of one or more of the Licensed Marks shall clearly identify
Licensee as a licensee of such Licensed Marks, and not the owner or licensor
thereof.
Nothing contained herein gives Licensee any interest in or to any of
the Licensed Marks or any component thereof, nor the goodwill now or hereafter
attached thereto, except for the right to use such Licensed Marks as authorized
by DCA, pursuant to and for the term of this Agreement, solely in connection
with the operation of Licensee's Dental Office. Licensee shall not use the
Licensed Marks as part of any other corporate or trade name or with any prefix,
suffix or other modifying words, terms, designs or symbols, or in any modified
form, nor may Licensee use any Licensed Xxxx in connection with sale of any
unauthorized product or serve or in any other manner not expressly authorized in
writing by DCA.
Licensee shall not engage in or permit any act calculated to
prejudice, affect, impair or destroy the title or interest of DCA in and to any
of the Licensed Marks or any related or similar name. In addition, Licensee
shall immediately notify DCA of any apparent infringement of one or more of the
Licensed Marks by any third party or any challenge to Licensee's use of any of
the Licensed Marks.
4
In such instance, Licensee shall not communicate with any person other
than DCA and Licensee's counsel with respect to such infringement or challenge.
In addition, Licensee shall cooperate fully with DCA in defense and protection
of the Licensed Marks in question.
Notwithstanding the foregoing, DCA shall have sole discretion to take
such action as it deems appropriate and to exclusively control any litigation or
administrative proceedings arising out of any infringement, challenge or claim
regarding any one or more of the Licensed Marks. Licensee agrees to execute any
and all instruments and documents, render such assistance and do such acts and
things as may, in the opinion of DCA's counsel, be necessary or advisable to
protect and maintain the interests of DCA in any such proceeding or to otherwise
protect and maintain the interests of DCA in and to the Licensed Marks. Except
as specifically provided herein, DCA shall not otherwise be obligated to protect
or defend any of the Licensed Marks in any litigation or administrative
proceeding arising out of any infringement, challenge or claim if it elects not
to do so in its sole discretion.
If for any reason DCA or Licensee is ultimately prohibited from using
any one or more of the Licensed Marks, Licensee shall not be entitled to any
compensation therefor, nor shall compensation be paid by DCA to Licensee as a
result thereof. Further, Licensee may, immediately upon the request of DCA, be
required to modify or discontinue the use of one or more of the Licensed Marks,
or to use one or more additional or substitute trademarks, service marks, trade
names, logotypes or other commercial symbols in lieu of one or more of the
Licensed Marks, in connection with the Dental Office.
8. NO EMPLOYMENT INTENDED.
Nothing herein contained shall in any way be construed as constituting
Licensee, its Dentist in charge or any other employee or representative of
Licensee as an employee, agent, partner, subsidiary or joint venturer of DCA.
Licensee shall perform hereunder as an independent contractor at its sole
expense and risk and shall advertise this fact to the public, and assumes full
responsibility and liability for, and agrees to hold DCA harmless from any
claims, suits, actions, losses, expenses, injury or damage, including, but not
limited to, attorneys' fees and other expenses incident thereto, incurred at any
time by DCA as a result of Licensee's activities in operating the Dental Office
or arising out of this Agreement.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, DCA IS NOT,
AND SHALL NOT BE DEEMED TO BE, PROVIDING TO LICENSEE, OR TO ANY OF MEMBERS OF
LICENSEE'S STAFF, ANY TRAINING, ADVICE OR CONSOLATION IN, NOR PRESCRIBING ANY
STANDARDS OR GUIDELINES PERTAINING TO, THE PROVISION OF DENTAL OR OTHER MEDICAL
CARE TO THE PATIENTS OF LICENSEE. CONSEQUENTLY, IN NO EVENT SHALL DCA IN ANY WAY
BE HELD LIABLE TO ANY THIRD PARTY FOR OR AS A RESULT OF THE PROVISION OF DENTAL
OR OTHER MEDICAL CARE BY LICENSEE OR BY ANY MEMBERS OF LICENSEE'S STAFF.
5
9. LICENSED TERM.
The term of the License commences on the date of execution of this
Agreement and expires eight (8) years from the date hereof; provided, however,
that this Agreement shall automatically terminate immediately upon any
termination of the Administrative Services Agreement dated as of the same date
hereof between DCA, Licensee and certain other parties.
10. TERMINATION BY LICENSEE.
10.1 TERMINATION WITH CAUSE.
If Licensee is in compliance with this Agreement and DCA breaches this
Agreement, Licensee shall specify the breach with particularity to DCA in
writing and shall give DCA thirty (30) calendar days' written notice within
which to cure such breach. If DCA fails to cure such breach within said time
period, Licensee may terminate the License for cause. Such termination shall not
be effective until ten (10) calendar days after Licensee's delivery to DCA of a
subsequent written notice of termination and the payment to DCA of all
outstanding amounts due under this Agreement accrued through the date thereof. A
termination of the License by Licensee for any reason other than an uncured
breach of this Agreement by DCA or pursuant to Section 9 above shall be deemed a
termination by Licensee without cause. In the event that Licensee attempts to
terminate the License without cause, such act shall constitute a breach hereof
by Licensee, and DCA shall have the right to invoke any and all remedies
available to DCA hereunder as a result thereof. A termination of the License by
Licensee for any reason shall also invoke such other post-termination
obligations of Licensee as are set forth in Section 14 of this Agreement. At all
other times during the term of the License, Licensee shall not be entitled to
terminate the License except as provided in Sections 10.1 and 28.
11. TERMINATION BY DCA.
DCA shall have the right to terminate the License, effective
immediately upon delivery of written notice to Licensee, if:
(a) Licensee suffers cancellation of, or fails to renew or
extend, the lease or sublease for the premises of the Dental Office and
fails to find a suitable alternative location for the Dental Office
within the Exclusive Territory and otherwise acceptable to DCA within
thirty (30) calendar days after the lease expires or is terminated.
(b) Licensee or the Dentist in charge, as applicable,
abandons, surrenders, transfers control of, fails to actively operate
at, or loses the right to occupy or transact business on, the premises
of the Dental Office for a period of thirty (30) consecutive calendar
days.
(c) Licensee becomes insolvent, makes a general assignment
for the benefit of creditors, suffers the filing of a voluntary or
involuntary bankruptcy petition that is not dismissed within thirty
(30) calendar days after filing, is adjudicated bankrupt, suffers
6
temporary or permanent courtappointed receivership of substantially all
of its property, if an execution is levied against Licensee's business
or property, if suit to foreclose any lien or mortgage against the
premises or equipment of the Dental Office is instituted against
Licensee and is not dismissed within thirty (30) calendar days
thereafter, or if the real or personal property of the Dental Office is
sold after levy thereupon by any sheriff, marshal! or constable.
(d) Licensee or the Dentist in Charge, as applicable, is
convicted of or pleads no contest to a felony or is convicted of or
pleads no contest to any crime or offense that, among other things,
involves moral turpitude or consumer fraud or is likely to adversely
affect the reputation of the Dental Office, the Network, DCA, or the
goodwill associated with the Licensed Marks.
(e) Licensee or the Dentist in Charge, as applicable,
commits any violation of any applicable federal, state or local health,
safety, sanitation or other similar law, rule, regulation, ordinance,
standard, policy or practice in the operation, or otherwise operates
the Dental Office in a manner that presents a health or safety hazard
to its employees, patients or the general public, and fails to cure
such violation or condition within thirty (30) days of the occurrence
thereof, to the extent curable.
(f) Licensee or the Dentist in Charge, as applicable, has
his or her license to practice dentistry in any state involuntarily
suspended or revoked for any reason, or fails to immediately discharge
any dentist employed at the Dental Office whose license to practice in
any state is involuntarily suspended or revoked.
(g) Licensee or the Dentist in Charge, as applicable,
employs any person to practice dentistry at the Dental Office who is
not licensed to practice dentistry in the state in which the Dental
Office is located.
(h) Licensee or the Dentist in Charge, as applicable, fails,
in the opinion of DCA with regard to applicable federal, state and
local laws, regulations and ordinances, to construct, maintain or
operate the Dental Office in a safe manner.
(i) Licensee, the Dentist in Charge or any other employee or
representative of Licensee discloses or divulges any trade secrets or
other confidential information provided by DCA to Licensee, the Dentist
in Charge or such employee or representative of Licensee, or otherwise
transfers any proprietary information of DCA.
(j) Upon the death or permanent incapacity, as applicable,
of the Licensee who is the Dentist in Charge, the executor,
administrator, conservator or other personal representative of Licensee
fails to appoint a competent replacement Dentist in Charge acceptable
to DCA in its sole discretion within a reasonable time not to exceed
thirty (30) calendar days from the date of death or permanent
disability.
7
(k) Upon the resignation, death or permanent incapacity of
the Dentist in Charge, as applicable, a competent replacement Dentist
in Charge is not hired within a reasonable time not to exceed thirty
(30) calendar days from the date of resignation, death or permanent
disability.
(l) Licensee fails to comply with any other network License
Agreement to which Licensee may be a party or has an interest.
(m) Licensee fails to comply with any provision of, or any
obligation under, any other agreement with DCA or any DCA Affiliate,
including, without limitation, any lease, loan agreement, purchase
contract or other obligation of Licensee.
(n) Licensee makes any untrue statement or representation of
material fact in this Agreement, in any document executed or delivered
in connection with this Agreement, or in any reports or financial
information submitted by or at the direction of Licensee to DCA, or
omits to state a material fact in any of the above documents required
or necessary to make the statements contained therein not misleading.
(o) Licensee or the Dentist in Charge, as applicable, fails
to pay to DCA when due any amounts owed, including, without limitation,
License Fees, amounts due for purchases from DCA or any DCA Affiliate,
or other payments due to DCA or any DCA Affiliate under the terms of,
in connection with or related to this Agreement, and does not correct
such failure within seven (7) calendar days after delivery of written
notice thereof. Notwithstanding the foregoing, if Licensee has
defaulted on any payment provision on two (2) or more separate
occasions within any twelve (12) consecutive month period, regardless
of whether the first such failure to pay was corrected within the cure
period set forth therein, DCA shall have the right to terminate the
License without providing Licensee with any opportunity to cure the
second payment default. Termination upon such event shall be effective
immediately upon DCA's delivery of written notice thereof to Licensee.
(p) Licensee or the Dentist in Charge, as applicable, fails
to comply with any applicable federal, state or local law, regulation
or ordinance, including, without limitation, OSHA, any applicable
licensing laws, or any applicable standards or regulations adopted by
any state or federal Board of Dentistry or the Department of Labor or
other similar governmental agency.
(q) Licensee breaches or fails to comply with any
representation, warranty, covenant or other provision contained in this
Agreement or any document executed in connection herewith, including
any updates or amendments to any of the foregoing, and does not correct
such breach within the applicable cure period, if any, provided herein
or therein.
8
(r) Licensee fails to notify DCA of the occurrence of any
one or more of the events listed in Subsections (a) through (s) of this
Section 11, or of any malpractice claims threatened or brought against
Licensee or the Dental Office, within seventy two (72) hours of the
occurrence thereof.
(s) Licensee in any way defames Licensor or any DCA
affiliate, member of the network or through any other improper means
takes any action that is intended to be detrimental to the network, DCA
or any of DCA's members, directors, offices, employers,
representatives, agents, services or operations.
IF ANY MANDATORY PROVISIONS OF THE GOVERNING STATE LAW PROHIBIT
TERMINATION OF THE LICENSE OR LIMIT DCA'S RIGHT TO TERMINATE TO SOME OTHER BASIS
OR TERMS THAN ARE HEREIN PROVIDED, OR REQUIRE RENEWAL OF THE LICENSE, THEN SAID
MANDATORY PROVISIONS OF STATE LAW SHALL BE DEEMED INCORPORATED IN THIS AGREEMENT
BY REFERENCE AND SHALL PREVAIL OVER ANY INCONSISTENT TERMS HEREOF.
12. LICENSEE'S OBLIGATIONS UPON TERMINATION OR EXPIRATION.
Upon termination of the License, whether by DCA or Licensee, or upon
expiration of the term of the License or any renewal term thereof, Licensee
shall have the following obligations:
(a) Licensee shall immediately discontinue use of all
Licensed Marks, signs, structures literature, forms, promotional
advertising materials and any other article of personally indicative of
DCA or the Network, or which may be confusingly similar thereto, or any
designation indicating the existence of an affiliation between Licensee
and DCA or the Network. The foregoing shall include immediately taking
such action as may be required to cancel any and all assumed names or
equivalent registrations relating to or in any way utilizing one or
more of the Licensed Marks.
(b) Licensee shall take immediate steps to cancel or
otherwise discontinue its use or display of any references to the
Licensed Marks in any telephone or trade directories or in any
advertising.
(c) Licensee shall return to DCA any materials, signs and
displays loaned or leased to Licensee by DCA in connection with this
Agreement.
(d) Licensee shall, as DCA so directs, either destroy or
surrender to DCA all other items containing or displaying the Licensed
Marks.
(e) Licensee shall pay to DCA or the appropriate DCA
Affiliate, within ten (10) calendar days after the effective date of
termination or expiration of the License (or such later date on which
the amounts due to DCA or the DCA Affiliate are determined), all
amounts due under this Agreement as of the termination date.
9
(f) Licensee shall not slander or libel the Network, DCA or
any of DCA's members, directors, officers, employees, representatives,
agents, services or operations.
(g) Upon termination or expiration of the License for any
reason, all rights and privileges accruing or granted to Licensee under
this Agreement and in connection with the License shall immediately
cease and terminate.
13. LATE PAYMENTS.
If any sums required to be paid by Licensee to DCA or any DCA Affiliate
under this Agreement are not paid when due, DCA shall have the right to charge
interest on such unpaid sums, such interest to begin accruing on the day
immediately following the date on which such sums are due, at the highest rate
allowed by law, or, if no such rate exists, at a rate of one and one-half
percent (1.5%) per month. All such payments received shall be credited, first,
against interest payments due and, second, against principal payments due. In
addition, DCA may discontinue Licensee's right to identify itself as a member of
the Network and to lease or purchase equipment, instruments, supplies and
products under any national marketing contracts entered into by DCA for the
benefit of the Network and its members if Licensee is delinquent in any
payments. In addition, in the event Licensee fails to make prompt payment to DCA
or any DCA Affiliate or any amounts required under this Agreement, DCA shall be
entitled to terminate the License granted hereunder.
13.1 EQUITABLE REMEDIES. Licensee agrees that any breach or
threatened breach of this Agreement by Licensee would cause irreparable and
immediate harm to DCA and that money would not be an adequate remedy in the
event of any such breach. By reason of the foregoing, Licensee acknowledges and
agrees that DCA shall be entitled to injunctive or other equitable relief,
including, without limitation, entry or temporary restraining orders and
temporary and permanent injunctions, in the event of any breach or threatened
breach of this Agreement. Licensee hereby irrevocably waives any claim or
defense that an adequate remedy is available at law, and agrees not to interpose
any claim or defense that an adequate remedy at law exists. Nothing in this
agreement shall prevent DCA from electing to seek any monetary or other relief
in addition to any equitable relief for breach or threatened breach of this
Agreement. The failure of DCA to institute a legal action promptly upon any such
breach shall not constitute a waiver of that or any other breach hereof. In the
event it is necessary for DCA to employ legal counsel to enforce any provision
of this Agreement, Licensee shall reimburse DCA for all legal expenses
associated therewith and in addition thereto, to the extent legal action is
taken, Licensee shall reimburse DCA for all costs of such action including court
costs or other expenses of litigation including reasonable attorneys' fees.
14. ASSIGNMENT.
14.1 BY LICENSEE. Except in connection with a sale of Licensee's
business, Licensee agrees that, during the Original Term of the License and for
any renewal terms thereof, Licensee shall not sell, assign, transfer, pledge or
mortgage the License or any interest therein, without the
10
prior written consent of DCA, which consent (i) shall be at DCA's sole and
absolute discretion and (ii) may be subject to the satisfaction by Licensee or
the prospective transferee of the License, or both, of specific terms and
conditions, including, without limitation, executing DCA's current standard
license agreements, documents and instruments consent to transfer shall not be
unreasonably withheld.
14.2 BY DCA. Licensee acknowledges and agrees that DCA may at any
time sell or assign, in whole or in part, its interest in the License or any
part thereof, without the consent of Licensee. In addition, Licensee
acknowledges and agrees that DCA may, at any time during the term of the
License, offer any of its securities in connection with a public offering by
filing an effective registration statement under the Securities Act of 1933, as
amended, or any similar federal law then in force.
15. COVENANTS AND RESTRICTIONS.
Licensee acknowledges that by and through this Agreement it shall
receive confidential business information of Licensor, copyrighted information
of Licensor, trade secrets of Licensor, as well as other valuable business,
proprietary and professional information. Licensee will have the benefit of the
good will associated with the license xxxx and by being a network provider
obtain goodwill specifically in the tradename, trademark and service xxxx of
Dental Care Alliance and the marks as described in Paragraph 7 above and any
subsequent license marks adopted by Licensor.
During the term of this Agreement and for an additional five (5) year
period from the termination of the same Licensee agrees that it will not
disclose to any person or entity any trade secrets of Licensor, including but
not limited to promotional materials, marketing materials, assurance contracts,
customer lists, pricing information, advertising information, management
materials, preferred provider contracts, or insurance agreements, or like
materials solely relating to the Licensor or its business that the Licensee has
become privy to or has used during its involvement with Licensor.
Licensee acknowledges that the restraints set forth in the above
paragraphs are reasonable and necessary for the protection of legitimate
business interests of Licensor and that this covenant on the part of the
Licensee shall be construed as an Agreement. The existence of any claim or cause
of action of the Licensee shall not be construed as a defense to the enforcement
by the Licensor of this covenant. It is agreed by the Licensor and Licensee that
if any portion of this restrictive covenant is held unreasonable, arbitrary or
against public policy these covenants shall be considered to be diminishable
both as to time and geographical area, and each month for this specific period
shall be deemed a separate period of time and shall remain effective so long as
the same is not otherwise unreasonable, arbitrary or against public policy.
Licensee and Licensor hereby agree that in the event any court
determines any specific time period or any specific geographical area to be
unreasonable, arbitrary or against public policy, a lesser time period or
geographical area which is determined to be reasonable,
11
non-arbitrary and not against public policy may be enforced against the
Licensee. The Licensee further understands that this covenant may be enforced by
the entering of a temporary or permanent injunction. It is understood that in
determining the enforceability of the restrictive covenant, the court shall not
consider any individual economic or other hardships that might be caused to the
person or entity against whom the enforcement is sought .
It is understood that a court of competent jurisdiction shall construe
this restrictive covenant in favor of providing reasonable protection to all
legitimate business interests established by Licensor. It is understood that the
court shall not employ any rule of contract construction that requires the court
to construe a restrictive covenant narrowly, against the restraint, or against
the drafter of the contract. It is understood that no court may refuse to
enforce this restrictive covenant on the grounds that the contract violates
public policy unless such public policy is articulated specifically by the court
and the court finds that the specific public policy requirements substantially
outweigh the need to protect the legitimate business interest or interests
established by Licensor.
It is understood that a court of competent jurisdiction shall enforce
this restrictive covenant by any appropriate and effective remedy, including,
but not limited to, temporary and permanent injunctions. The violation of this
restrictive covenant creates a presumption of irreparable injury to Licensor on
seeking its enforcement. Licensor will post a proper bond as set by the court if
an injunction is entered. In the event it becomes necessary for Licensor to
retain the services of an attorney to enforce this restrictive covenant, it is
agreed that the prevailing party shall be entitled to reasonable attorney's fees
and costs in any legal proceeding, both at the trial or appellate level.
Licensee agrees that this License Agreement and the restriction
contained herein are freely assignable by Licensor, in its sole discretion, and
any assignee, successor or third-party beneficiary to this agreement may enforce
the same.
The laws of the State of Florida shall control the interpretation of
this restrictive covenant and in particular, Florida Statute 542.335. Licensee
specifically agrees that the Twelfth Judicial Circuit in and for Sarasota
County, Florida, has jurisdiction over the enforcement of this restrictive
covenant, and that the Twelfth Judicial Circuit in and for Sarasota County,
Florida, will be the appropriate venue for any action brought pursuant to this
restrictive covenant.
16. INDEMNIFICATION.
Licensee shall indemnify, defend and hold harmless DCA, the DCA
Affiliates, and their respective members, stockholders, directors, officers,
employees, agents and representatives, from losses, liabilities, costs,
expenses, assessments, taxes, penalties, fines, claims, demands, actions, suits
and proceedings, including, without limitation, attorneys', accountants' and
other professionals, fees, costs and expenses of investigation and defense, and
disbursements incurred in connection therewith, as a result of (i) Licensee's
operation of the Dental Office in any respect, or (ii) any alleged malpractice
by Licensee or any of its agents or employees.
12
16.1 DCA shall indemnify, defend and hold harmless Licensee, the
Licensee's Affiliates, and their respective members, stockholders, directors,
officers, employees, agents and representatives, from losses, liabilities,
costs, expenses, assessments, taxes, penalties, fines, claims, demands, actions,
suits and proceedings, including, without limitation, attorneys' fees,
accountants' and other professionals' fees, costs and expenses of investigation
and defense, and disbursements incurred in connection therewith, as a result of
(i) any activities, actions or omissions of DCA or its affiliates, employees,
officers or directors and (ii) any claims asserted or litigation brought by any
third party in connection with the Licensed Marks.
17. NOTICES.
Any notice or other communication required or permitted under this
Agreement shall be valid and effective only if given by written instrument that
is personally delivered by courier or sent by telegraph, telecopier, or
registered or certified mail, postage prepaid, addressed in accordance with the
addresses set forth below. Notice shall be deemed to be given upon the date of
transmission or, if mailed, three (3) calendar days after the date of deposit in
the U.S. Mail.
If to Licensee, to:
EIGHT MILE DENTAL, P.C.
000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
If to DCA, to:
Dental Care Alliance, Inc.
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Telephone number: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxxx, President
Any party may change the address at which it is to be given notice
hereunder by giving notice thereof to the other party in accordance with this
Section 17.
18. APPLICABLE LAW.
This Agreement has been executed and delivered in, and shall be
governed by and construed in accordance with the internal laws of the State of
Florida, without application of such State's conflicts of laws provisions.
19. WAIVER.
No failure of either party to exercise any right given to it hereunder,
or to insist upon strict compliance by the other of any obligation hereunder,
and no custom or practice of the
13
parties at variance with the terms hereof shall constitute a waiver of such
party's right to demand exact compliance with the terms hereof. Waiver by either
party of any particular default by the other shall not affect or impair the
non-defaulting party's rights in respect to any subsequent default of the same
or of a different nature, nor shall any delay or omission of the non-defaulting
party's rights arising from such default, affect or impair the non-defaulting
party's right as to such default or any subsequent default.
20. SEVERABILITY.
If any applicable and binding law or rule of any jurisdiction requires
a greater prior notice of the termination of or refusal to renew the License
than is required hereunder, or the taking of some other action not required
hereunder, or if under any applicable and binding law or rule of any
jurisdiction any provision of this Agreement or any specification or standard
prescribed by this Agreement is invalid or unenforceable, the prior notice or
other action required by such law or rule shall be substituted for the
comparable provisions hereof, and the party shall have the right, in its sole
discretion, to modify such invalid or unenforceable provision, specification,
standard or operating procedure to the extent required to be valid and
enforceable.
21. ENTIRE AGREEMENT.
This Agreement contains the entire understanding of the parties hereto.
DCA has not authorized, nor will it authorize, any representations, whether
pertaining to anticipated volume of sales or the amount of profit to be realized
from the operation of the Dental Office, the desirability of the Dental Office's
location, or otherwise, or any other inducements, promises or agreements, oral
or otherwise, to be made to Licensee in any form whatsoever. Accordingly,
Licensee shall not be entitled to rely upon any such representations, if any
made by DCA, its agents, representatives or employees, or by any third party.
Licensee acknowledges that it has conducted an independent investigation of the
business contemplated by this Agreement and recognizes that, like any other
business, the nature of the business conducted by DCA may evolve and change over
time, that an investment in a Dental Office involves business risks, and that
the success of the venture is largely dependent upon the business abilities and
efforts of Licensee.
22. FULL FORCE AND EFFECT.
All obligations of DCA and Licensee which expressly or by their nature
survive the expiration or termination of this Agreement shall continue in full
force and effect subsequent to and notwithstanding such expiration or
termination, until such time as they are satisfied or by their nature expire.
23. EFFECTIVE DATE.
This Agreement shall be effective as of May 1, 1997.
14
24. JOINT AND SEVERAL OBLIGATIONS.
If two (2) or more persons at any time constitute Licensee hereunder,
their obligations and liabilities to DCA hereunder shall be joint and several.
25. CERTIFICATION BY LICENSEE.
Licensee hereby certifies that it has had the opportunity to seek
advice of counsel prior to its execution of this Agreement, and that it has
opportunity to inspect the Network's business concept and review information
made available to it by DCA concerning the same. Licensee acknowledges that the
success of the business herein licensed is primarily dependent on Licensee's
skill and business acumen.
26. BREACH OF LICENSE AGREEMENT.
A breach of Dental Care Alliance, Inc.'s Administrative Service
Agreement by Licensee shall be considered a breach of this License Agreement and
a breach by the Licensee of the Dental Care Alliance License Agreement shall be
considered a breach of the Dental Care Alliance, Inc.'s Administrative Service
Agreement.
27. TERMINATION OF GOLDEN CARE NETWORK, L.L.C. AGREEMENTS.
The parties hereto acknowledge and agree that Licensee is entering into
this Agreement in replacement of any and all agreements by and between Licensee
and Golden Care Network, L.L.C. in effect on the date hereof (collectively, the
"GCN Agreements"). Accordingly, the parties hereto hereby acknowledge and agree
that, concurrently With the effectiveness of this Agreement, all of the GCN
Agreements shall immediately terminate and neither Licensee nor Golden Care
Networks, L.L.C. shall have any further rights, obligations or liabilities
thereunder.
28. TERMINATION OF LICENSE.
If Xxxxxx X. Xxxxxxx or his assigns exercise rights under the Security
Agreement with related practices owned by Xxxxx Xxxx Xxxxxxx, then this
Agreement shall terminate.
15
IN WITNESS WHEREOF, the parties hereto have executed or caused their
duly authorized representatives to execute this License Agreement on the day and
year first above written.
DENTAL CARE ALLIANCE, INC., a
Delaware corporation
By:
-------------------------------
EIGHT MILE DENTAL, P.C., a Michigan
professional dental corporation
By:
-------------------------------
Printed Name:
---------------------
Title:
---------------------------
WITH RESPECT TO SECTION 27 HEREOF
GOLDEN CARE NETWORK, L.L.C.
By:
-------------------------------
Printed Name:
---------------------
Title:
---------------------------
00
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXX
Xx this _____ day of ____________, 19__ before me personally appeared
Xxxxxx X. Xxxxxxx, President of Dental Care Alliance, Inc., and who is
personally known to me or who has produced ____________________ as
identification and who did not take an oath, and subscribed and sworn to before
me by ____________________ and ____________________, the witnesses, on the _____
day of ___________, 19__.
--------------------------------
Notary Public
Print Name:
---------------------
My Commission expires:
STATE OF MICHIGAN
COUNTY OF _______________
On this _____ day of ____________, 19__ before me personally appeared
__________________________, the _______________ of Eight Mile Dental, P.C., and
who is personally known to me or who has produced ______________________________
as identification and who did not take an oath, and subscribed and sworn to
before me by ____________________ and ____________________, the witnesses, on
the _____ day of ____________, 19__.
--------------------------------
Notary Public
Print Name:
---------------------
My Commission expires:
ACKNOWLEDGEMENT OF GOLDEN CARE NETWORK, L.L.C.
The undersigned hereby acknowledges and agrees to be bound by the
provisions of Section 27 of this Agreement.
GOLDEN CARE NETWORK, L.L.C.
By:
------------------------------
President
17
EXHIBIT "A"
EMPLOYMENT CONTRACT
A-1
