EXHIBIT 10.1
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT (this "Agreement") entered into as of
this 17th day of May, 2005 (the "Effective Date"), by and between Xxxxxx X.
Xxxxxx, DDS P.A. a Florida professional association (the "Company"), and Xxxx
Xxxx-Xxxxxxx D.M.D., P.A. a Florida professional association (the
"Subcontractor").
W I T N E S S E T H:
WHEREAS, Company maintains and operates a dental practice (the "Practice")
located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxx Xxxxxxx, XX 00000; and
WHEREAS, Subcontractor is a professional association whose principal is
Xxxx Xxxx-Xxxxxxx DDS and is qualified to practice dentistry to the Practice;
and
WHEREAS, the Company desires to engage the professional dental services of
the Subcontractor and the Subcontractor is willing to offer its professional
dental services to the Company as an independent contractor pursuant to the
terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and each made to the other, the parties do hereby agree as follows:
1. Recitals. The foregoing recitals are true and are incorporated herein.
2. Services to be Rendered. The Subcontractor shall perform general dentistry
services to the best of its abilities and to the Company's satisfaction.
3. Independent Contractor Status.
a. The Subcontractor expressly acknowledges that it will be acting as an
independent contractor and not as an employee, for all purposes, including
payment of Social Security and Medicare withholding taxes and all other Federal,
state and local taxes (collectively referred to as "Taxes").
b. In the event Taxes are assessed in any manner against the Company, and all or
part of the assessment results from the reclassification of the Subcontractor
from an independent contractor to an employee, then the Subcontractor shall
reimbursement the Company to the full extent that such increase in Taxes and all
penalties and interest thereof is attributable to such reclassification.
c. The taxpayer identification number for the Subcontractor is 00-0000000.
d. The Subcontractor shall be free to set its own hours and appointments
provided, however, that subcontractor shall render services for two and one-half
days each calendar week and that subcontractor shall provide company with
fourteen (14) days' advance notice for any absence due to vacation, professional
or other personal time needed.
4. Performance of Subcontractor. All work performed hereunder by the
Subcontractor shall be of the standards of the State of Florida Board of
Dentistry and performed to the Company's reasonable satisfaction.
5. Fees. The Subcontractor's fee for services rendered under this Agreement (the
"Fee") shall be equal to Thirty Five Percent (35%) of the Production Income
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generated by Subcontractor reduced by Thirty Five Percent (35%) of the cost of
all laboratory work directly attributable to such Production Income. The Fee
shall be computed over work done within a 7-day period ending each Friday and
shall be paid to the Subcontractor on said Friday of such 7-day period.
6. Noncompetition. The Company has retained the Subcontractor only for the
purposes set forth in this Agreement and its relationship to the Company is that
of an independent contractor. Accordingly, the Subcontractor may, directly or
indirectly, enter into, or in any manner take part in, any business, profession,
or other endeavor except as prohibited under Paragraph 9 hereof.
7. Severability. If any provision, paragraph, or subparagraph of this Agreement
is adjudged by any court of law to be void or unenforceable, in whole or in
part, such adjudication shall not be deemed to affect the validity of the
remainder of the Agreement, including any other provision, paragraph, or
subparagraph. Each provision, paragraph, and subparagraph of this Agreement is
declared to be separable from every other provision, paragraph, and subparagraph
and constitutes a separate and distinct covenant.
8. Term of Agreement.
a. This Agreement shall begin on the Effective Date and end on that date that is
three (3) years after the Effective or as otherwise provided in this Agreement.
Either party may terminate this Agreement upon the giving of sixty (60) days'
written notice to the other party. Provided, however, that if this Agreement is
terminated without cause by Company, the restrictions and limitations of
paragraph 9 hereof shall be null and void.
b. The following shall constitute termination with cause:
(1) Any action by Subcontractor which injures the reputation or the
business standing of the Company and/or the remainder of its employees,
providing the Subcontractor has received written notice of such conduct and has
been given a five (5) day period to cure such conduct;
(2) Subcontractor's material breach of any provision of this Agreement if,
after the breach has been specified as a ground for termination and a written
notice given by the Company, the same breach continues or occurs again;
(3) Subcontractor's abuse of alcohol or illegal drugs;
(4) Subcontractor's conviction of a felony (other than traffic offenses) or
any offense involving moral turpitude;
(5) Any act of theft or fraud by Subcontractor against the Company
providing such act of theft or fraud is supported by sufficient evidence leading
to a reasonable suspicion (i.e., conviction is not required);
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(6) Subcontractor's insolvency, bankruptcy or assignment of assets for the
benefit of creditors; or
(7) Subcontractor's disqualification by the State of Florida to practice
dentistry.
Any other event resulting in termination of this Agreement by Company shall be
deemed to be termination without cause.
9. Covenant Not To Compete.
a. Non-Competition. Company and Subcontractor agree that, commencing with the
date of the Agreement until the earlier of: (i) the expiration of the term of
this Agreement or (ii) the date this Agreement is terminated by Company without
cause, Subcontractor will not, directly or indirectly, except under the name of
the Company, do or suffer any of the following within the City of Coral Springs,
Florida: Own, manage, control or participate in the ownership, management or
control of, be an officer, director or employee or otherwise be affiliated or
associated with, as a consultant, independent contractor or otherwise, any
person, corporation, partnership, proprietorship, firm, association or other
business entity, which is engaged in the practice of dentistry.
b. Remedies.
(1) Subcontractor acknowledges and agrees that the agreements and
undertakings contained in this paragraph 9 relate to matters which are of a
special, unique and extraordinary character and a violation of any of the terms
of this paragraph 9 will cause irreparable injury to Company, the amount of
which will be impossible to estimate or determine and which cannot be adequately
compensated by monetary damages. Therefore, Subcontractor agrees that Company
will be entitled, in addition to all other rights and remedies available under
this Agreement and applicable law, as a matter of course, to an injunction,
restraining order or other equitable relief from any court of competent
jurisdiction, restraining any violation or threatened violation of any of such
terms by Subcontractor or by such other persons as the court orders.
(2) The rights and remedies of Company explicitly provided for hereunder
will be cumulative, and will be in addition to all rights and remedies otherwise
available to Company under this Agreement or any other agreement or under
applicable law.
c. Intent. Company and Subcontractor have carefully considered the nature and
extent of the restrictions upon them and the rights and remedies conferred upon
Company under this paragraph 9, and hereby acknowledge and agree that the same
are reasonable in time and territory, are designed to eliminate competition
which otherwise would be unfair to Company, do not stifle the inherent skill and
experience of Subcontractor, are fully required to protect the legitimate
interests of Company and do not confer a benefit upon Company disproportionate
to the detriment to Subcontractor. In the event the time or distance limitations
set forth in this paragraph 9 are deemed too restrictive to be legally
enforceable, such limitations shall nonetheless be effective and enforceable for
the longest period of time and greatest distance which are legally enforceable.
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10. Modification and Waiver. No waiver or modification of this Agreement shall
be valid unless it is in writing and signed by the Company and the
Subcontractor.
11. Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of, the each of the parties hereto and their successors and assigns,
heirs, legal representatives, executors, and administrators.
12. Attorneys' Fees. If either party hereto shall breach any of the terms
hereof, such party shall pay to the non-defaulting party all of the
non-defaulting party's costs and expenses, including attorneys' fees, incurred
by such party at trial and upon appeal in enforcing the terms of this Agreement.
13. Complete Understanding. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof. This Agreement
supersedes any and all other Agreements, whether oral or in writing, between the
parties with respect to the subject matter hereof.
14. Governing Law and Venue. This Agreement shall be subject to, and governed
by, the laws of the State of Florida. Venue shall be in Broward County.
15. Headings. The headings in this Agreement are inserted for convenience only
and shall not be considered in interpreting the provisions hereof.
16. Notice. All notices, requests, demands, claims, and other communications
hereunder shall be in writing and shall be delivered by certified or registered
mail (first class postage pre-paid), guaranteed overnight delivery, or facsimile
transmission if such transmission is confirmed by delivery by certified or
registered mail (first class postage pre-paid) or guaranteed overnight delivery,
to the following addresses and facsimile numbers (or to such other addresses or
facsimile numbers which such party shall designate in writing to the other
party):
To the Company: Xxxxxx X. Xxxxxx, DDS P.A.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxx 00000
Facsimile: 954-344-8479
To the Subcontractor: Xxxx Xxxx-Xxxxxxx D.M.D., P.A.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxx, Esq.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Notice shall be deemed given on the date sent if sent by facsimile transmission
and on the date delivered (or the date of refusal of delivery) if sent by
overnight delivery or certified or registered mail.
17. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. Confirmation of execution by facsimile
of the signature page shall be binding upon any party so confirming.
[signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
hereof.
Company:
Xxxxxx X. Xxxxxx, DDS P.A.
a Florida professional association
By:/s/Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxxx, DDS, its President
(CORPORATE SEAL)
Subcontractor:
Xxxx Xxxx-Xxxxxxx D.M.D., P.A.
a Florida professional association,
By: /s/Xxxx Xxxx-Xxxxxxx
------------------------------------
Xxxx Xxxx-Xxxxxxx D.M.D., its President
(CORPORATE SEAL)
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