EXHIBIT 10.2
DENTAL CARE ALLIANCE, INC.
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") effective this
__ day of _________, 1996, ("Effective Date") between and among DENTAL CARE
ALLIANCE, INC., a Delaware corporation ("DCA"); ________, a _____________ dental
professional association (the "PA"); and ____________________, a licensed
___________ dentist who is the sole stockholder, owning all of the issued and
outstanding stock of PA (the "Stockholder").
I. RECITALS
WHEREAS, DCA is a company with expertise in the provision of business
and administrative services to dental practices; and
WHEREAS, the PA is a dental professional association duly organized and
validly existing under all applicable state law and regulation, and whose stock
is owned by the Stockholder; and
WHEREAS, the PA owns and operates a dental practice (the "Practice") at
the location specified on EXHIBIT A attached hereto; and
WHEREAS, the PA desires that DCA provide it with the business and
administrative services described in this Agreement, in order for the PA to
avail itself of DCA's expertise and efficiencies, and DCA desires to provide
such services to the PA; and
WHEREAS, the parties mutually desire that the PA shall maintain
complete control over and responsibility for all aspects of the Practice's
operations that constitute the practice of dentistry under applicable state law.
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
II. DUTIES AND OBLIGATIONS OF DCA
2.1 GENERAL. DCA will provide the PA with all of the business and
administrative services required for the day-to-day operations of the Practice,
as set forth in EXHIBIT B to this Agreement, attached hereto and incorporated by
reference herein. The PA appoints DCA as its sole and exclusive agent for the
provision of the business and administrative services described in this
Agreement, and DCA hereby accepts such appointment.
Notwithstanding anything else in this Agreement, the parties expressly
acknowledge that DCA is not authorized or qualified to engage in any activity
that may be deemed or construed to constitute the practice of dentistry, or
shall DCA be regarded as practicing dentistry within the meaning of applicable
state dental laws and regulations. To the extent that any act or service herein
required by DCA should be construed by a court of competent jurisdiction or by
state dental regulatory authorities with jurisdiction over this Agreement to
constitute the practice of dentistry, the requirement to perform that act or
service shall be deemed waived and unenforceable and shall not constitute a
breach or default by DCA under this Agreement, and the parties shall take the
actions contemplated by SECTION 10.11 hereof.
2.2. PROVISIONS OF OFFICE AND EQUIPMENT. DCA will consult with the PA
on its office and equipment needs, and will provide or arrange for the provision
to the PA, at the expense of the PA, the offices, and improvements requested by
the PA for the operation of the Practice, all of the aforementioned as will be
mutually agreeable to the parties (collectively referred to as the "Offices and
the Equipment"). The office space provided to the PA by DCA hereunder will be
provided pursuant to a sublease in the form of EXHIBIT C attached hereto (the
"Office Lease"). It is expressly understood and agreed that the PA shall have
complete custody and control over the Offices and Equipment, consistent with the
control over leased property that is customarily granted to lessees under
standard commercial leases.
2.3. EMPLOYMENT OF NON-DENTAL STAFF. DCA will employ and provide to the
PA the non-dental staff required for the operation of the Practice, provided
that the hiring and termination of such staff shall be at the direction of the
PA, in consultation with DCA.
2.4. BILLING AND COLLECTIONS SERVICES. DCA will supervise billing and
collections services for all patient services rendered at the Practice, provided
that all xxxxxxxx and collections will be done in the name of the PA. Pursuant
to its performance of the xxxxxxxx and collections function, DCA will take
possession of and endorse in the name of the PA all payments from patients,
insurance companies and other third party payors, and promptly deposit all such
funds in the PA Account discussed in SECTION 2.5 below. The PA hereby appoints
DCA for the term of this Agreement to be its true and lawful attorney-in-fact
for the purposes set forth in this section. DCA will prepare and submit
financial reports to the PA detailing xxxxxxxx and collections on a monthly
basis.
2.5. BANKING ARRANGEMENTS. All monies collected for the PA by DCA
pursuant to SECTION 2.4 above shall be deposited into an
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account in the name of and owned by the PA (the "PA account"), for which the
sole signatory shall be a duly authorized representative of DCA, with a bank
whose deposits are insured with the Federal Deposit Insurance Corporation. DCA
shall be responsible for making all disbursements from the account, which shall
be limited to the disbursements authorized by this Agreement. DCA shall make all
disbursements promptly when payable, and shall account to the PA for all funds
disbursed from the PA account, and make available to PA, upon request, and
during normal business hours at the place of business of DCA, copies of all bank
account statements.
III. DUTIES AND OBLIGATIONS OF THE PA
3.1. PROFESSIONAL RESPONSIBILITIES. The PA shall have complete
authority, responsibility, supervision and control over the provision of all
dental services to patients and all other acts that are considered to constitute
the practice of dentistry under applicable state dental laws and regulations.
3.2. EMPLOYMENT OF DENTISTS. The PA will provide dental services to the
public through the services of dentists ("Dentists") who are employed by the PA
pursuant to employment agreements ("Employment Agreements") in the form of
EXHIBIT D attached hereto.
3.3. CONTROL OF BUSINESS OPERATIONS. Notwithstanding the authority
granted to DCA pursuant to ARTICLES II AND IV of this Agreement, it is expressly
acknowledged and agreed by the parties that the PA shall have approval over the
following business decisions:
(a) The hiring and termination of the Practice's staff.
(b) The dental equipment used by the Practice.
(c) Patient scheduling.
(d) The dental supplies used by the Practice.
(e) Marketing, expressly including all policies and decisions
relating to pricing, credit, refunds, warranties and to the
content and placement of advertising.
(f) Any other aspects of the Practice's operations that are
considered to be within the practice of dentistry under
applicable state dental laws and regulations.
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3.4. HOURS OF OPERATION. The PA represents and agrees that it will be
open to the public on a full time schedule of eight hours per day, a minimum of
five days per week (except for reasonable holidays), with appropriate staffing
by Dentists, hygienists and assistants, throughout the term of this Agreement.
3.5 PATIENT RECORDS. The PA will prepare and maintain at the Practice
accurate, complete and timely records on all services rendered to patients at
the Practice. All patient records shall be the property and remain under the
control and custody of the PA at all times during and after the term of this
Agreement. The records shall be prepared and maintained in compliance with all
applicable state and federal laws and regulations. DCA shall have access to the
patient records of the PA only for the limited purposes necessary to perform its
duties under this Agreement, and subject to all applicable laws and regulations
governing the confidentiality of such records.
3.6. AGREEMENT NOT TO ENCUMBER OR ALLOW TO BE ENCUMBERED. PA and
Stockholder agree that as part of the inducement to DCA to enter into this
transaction, and related transactions, including but not necessarily limited to
loans, guaranty of loans, or leases, or license agreements, DCA has considered
and relied upon the creditworthiness and reliability of PA and Stockholder. PA
and Stockholder covenant and agree not to sell, convey, transfer, lease or
further encumber any interest in or any part of the assets of the PA, or assets
of the Stockholder including but not necessarily limited to his stock in the PA,
without the prior written consent of DCA, and any such sale, conveyance,
transfer, lease or encumbrance made without DCA's prior written consent shall be
void. If any person should obtain an interest in all or any part of the assets
or stock of the PA, pursuant to the execution or enforcement of any lien,
security interest, judgment or other right, such event shall be deemed to be a
transfer and an event of default hereunder. PA and Stockholder covenant and
agree not to effectuate or attempt to effectuate any change in ownership or
control of PA without the prior written consent of DCA, and do herein represent
and warrant to DCA that Stockholder presently owns and holds all of the issued
and outstanding shares of stock of the PA.
IV. FINANCIAL ARRANGEMENTS
4.1. PRACTICE OPERATING EXPENSES. DCA will be responsible for paying
for the Practice's operating expenses, which shall include the expenses incurred
by DCA in connection with the performance of those services discussed in ARTICLE
II and EXHIBIT E of this Agreement (the "Practice Expenses"), provided that the
PA shall reimburse DCA for such Expenses on a monthly basis.
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4.2. EXPENSES OF THE PA. The PA will be responsible for payment of the
salary and benefits and professional liability insurance for the Dentists (the
"Dentist Expenses") and any other Practice staff employed directly by the PA and
any other expenses of the Practice or the PA that are not included within the
definition of Practice Expenses. Disbursements for such expenses shall be made
by DCA from the PA Account in accordance with SECTION 2.5 of this Agreement.
4.3. SERVICE FEE. Each month DCA will deduct from the PA account a
service fee payable by the PA to DCA (the "Service Fee"), which shall be
determined according to the following formula: [to be inserted] Net profit is
defined as set forth on EXHIBIT "F".
4.4. LOANS. If requested by the PA, DCA may, but is not obligated to,
provide loans to the PA to fund the PA's working capital requirements on such
terms as are mutually satisfactory to the parties hereto. Stockholder shall be
required to personally and unconditionally guarantee all such loans.
V. INSURANCE AND INDEMNITY
5.1. INSURANCE TO BE MAINTAINED BY THE PA. The PA covenants and agrees
that throughout the term of this Agreement, it will maintain comprehensive
professional liability insurance with limits of not less than $300,000 per claim
and with aggregate policy limits of not less than $1,000,000.00 per each
Dentist, and a separate limit for the PA with the PA being an additional insured
under the policy, with separate limits as follows:
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----. The PA shall be responsible for all such liabilities in excess of the
limits of such policies. DCA agrees to negotiate for and cause premiums to be
paid with respect to such insurance. Premiums and deductibles with respect to
such policies shall be a Practice Expense of the PA.
5.2. INSURANCE TO BE MAINTAINED BY DCA. DCA agrees that throughout the
term of this Agreement, it will maintain property and casualty insurance on the
property described on EXHIBIT "A", with premiums and deductibles with respect to
such policies being a Practice Expense.
5.3. ADDITIONAL INSUREDS. The PA agrees to use its reasonable efforts
to have DCA named as an additional insured on its professional liability
insurance program.
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5.4. INDEMNIFICATION. The PA and Stockholder shall jointly and
severally indemnify, hold harmless and defend DCA and its officers, directors,
shareholders and employees, from and against any and all liability, loss,
damage, claim, causes of action, and expenses (including reasonable attorney's
fees), whether or not covered by insurance, caused or asserted to have been
caused, directly or indirectly, by or as a result of the performance of medical
or dental services or the performance of any intentional acts, negligent acts or
omissions by the PA and/or the Stockholder or P.A.'s agents, employees and/or
subcontractors (other than DCA) during the term hereof. DCA shall indemnify,
hold harmless and defend the PA and Stockholder and its or their employees, from
and against any and all liability, loss, damage, claim, causes of action, and
expenses (including reasonable attorney's fees), caused or asserted to have been
caused, directly by or as a result of intentional acts by DCA and/or its
shareholders, agents, employees and/or subcontractors (other than the PA and/or
Stockholder), in connection with the services provided or required to be
provided by DCA, during the term of this Agreement.
VI. TERM AND TERMINATION
6.1. TERM OF AGREEMENT. This Agreement shall have a term of years
beginning on the ___ day of _______,____.
6.2. TERMINATION OF AGREEMENT. This Agreement may be terminated as
provided for in this Section, it being expressly agreed that termination of this
Agreement by any party shall serve to terminate the Agreement against all
parties.
(a) TERMINATION FOR CAUSE. In the event that DCA, on one hand, or
the PA or the Stockholder, on the other hand, shall
materially default in the performance of any duty,
obligation, covenant or agreement imposed upon it, them or
him by, or made by it, them or him pursuant to this Agreement
and such default shall continue for a period of 30 days after
written notice thereof has been given to the defaulting party
by the non-defaulting party, the non-defaulting party may
terminate this Agreement immediately upon written notice to
the defaulting party. In the event Stockholder loses his
license to practice dentistry, either by revocation,
termination or suspension, same shall be deemed a material
default. In the event Stockholder is disabled (unable to
fully perform all the normal and routine dental services of a
licensed dentist, and is unable to perform all of such
services either for any continuous forty-five
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(45) day period, or for a period of forty-five (45) calendar
days within any period of one hundred eighty (180)
consecutive calendar days, excluding normal vacations), then
same shall be deemed a material default. For the purposes of
this Section, any default by the Stockholder shall be deemed
a default by the PA and any default by the PA shall be deemed
a default by the Stockholder. It is expressly agreed by the
PA and Stockholder that a default of this Agreement by PA or
Stockholder shall be deemed to be a default of the promissory
note between the PA, as "Maker" and ____________ dated
__________, and a default of the sublease for the Practice's
office, and a default between the PA and Stockholder in the
License Agreement between the parties. A copy of the License
Agreement is attached hereto and marked EXHIBIT "G". It is
further expressly agreed by the PA and Stockholder that a
default in any one of the agreements set forth above, will
constitute a default in all agreements set forth above, at
the option of DCA.
(b) TERMINATION BY REASON OF INSOLVENCY. In the event of the
filing of a petition in bankruptcy pursuant to Chapter 7 of
the federal bankruptcy laws or an assignment for the benefit
of creditors by either DCA, on one hand, or the PA or the
Stockholder on the other hand, or upon other action taken or
suffered, voluntarily or involuntarily, under any federal or
state law for the benefit of debtors by such party, except
for the filing of a petition in involuntary bankruptcy
against a party which is dismissed within thirty (30) days
thereafter, the non-defaulting party may give written notice
of the immediate termination of this Agreement.
(c) TERMINATION WITHOUT CAUSE. In the event that the PA and the
Stockholder desire to discontinue the dental practice
maintained at the Practice pursuant to this Agreement (the
"Practice") at any time during the term of this Agreement,
the PA and the Stockholder may terminate this Agreement
without cause in the event that: (i) DCA shall be provided at
least 90 days' prior written notice of such intent to
terminate this Agreement, and (ii) the Practice shall be sold
or otherwise transferred to another licensed dentist
acceptable to DCA, who as a term of such sale, personally
assumes the obligations and liabilities of the PA
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and the Stockholder under this Agreement for the then
remaining balance of the term of this Agreement, and (iii)
the continuity of the Practice is maintained throughout
negotiations for the assignment, and to the effective date of
the agreed assignee's liability under this Agreement. There
shall be no lapse in the duties and obligations of the
parties under this Administrative Services Agreement.
(d) In the event that PA or the Stockholder or both shall
materially default in the performance of any duty,
obligation, covenant or agreement imposed upon it, him or
them, pursuant to this Agreement, and/or pursuant to the
sublease, and/or pursuant to the license agreement between
the PA and Stockholder with DCA, and such default shall
continue for a period of thirty (30) days after written
notice thereof has been given to the defaulting party or
parties by the non-defaulting party, PA and Stockholder agree
that DCA or _____________, D.D.S. shall have the option to
purchase all of the stock of the Stockholder and/or all of
the assets of the PA according to the following formula:
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6.3. ACTIONS UPON TERMINATION OF THIS AGREEMENT
(a) Upon termination or expiration of this Agreement for any
reason:
(i) The PA shall promptly return all DCA Proprietary
Information to DCA and otherwise comply with the
covenants and agreements of SECTION 7.1, 7.3, 7.4 AND
7.5. hereof;
(ii) DCA shall return all PA Proprietary Information to the
PA, and otherwise comply with the covenants and
agreements of SECTION 7.2 hereof;
(iii) the PA and Stockholder shall promptly repay DCA all
advances, loans and other amounts due hereunder and any
interest due thereon, and assume all debt and all
contracts and payables authorized by this Agreement to
be
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incurred by DCA and which relate to the performance of
DCA's obligations under this Agreement; and
(iv) DCA shall render a final accounting for monies
deposited in, and disbursed from, the PA Account.
(b) It is expressly agreed by the parties that the obligations of
this SECTION 6.3 shall survive the termination or expiration
of this Agreement.
VII. CONFIDENTIALITY AGREEMENTS
7.1. CONFIDENTIALITY AGREEMENT OF THE PA AND THE STOCKHOLDER. The PA
and the Stockholder jointly and severally acknowledge and agree that all
business information and materials provided to them by DCA pursuant to this
Agreement shall be considered the property of DCA ("DCA Proprietary
Information"), and further agree that they shall not rent, sell, give away or
otherwise utilize DCA Proprietary Information in any business activity or for
any business purpose other than as required to fulfill their obligations under
this Agreement. The PA and the Stockholder jointly and severally agree, and
shall cause their employees, agents and shareholders to agree, that DCA
Proprietary Information shall be kept confidential and, unless otherwise
required by law, regulation or valid court order, shall not be disclosed to any
person except as authorized by DCA in writing. Upon termination of this
Agreement, the PA and the Stockholder jointly and severally agree that they
shall promptly return to DCA all DCA Proprietary Information then in their
possession or control.
7.2. CONFIDENTIALITY AGREEMENT OF DCA. DCA acknowledges and agrees that
all business information and materials provided or made available to it by the
PA and the Stockholder pursuant to this Agreement shall be considered the
property of the PA and the Stockholder ("PA Proprietary Information"), and
further agrees that it shall not rent, sell, give away or otherwise utilize PA
Proprietary Information in any business activity or for any business purpose
other than as required to fulfill its obligations under this Agreement. DCA
further agrees, and shall cause its employees, agents and shareholders to agree,
the PA Proprietary Information shall be kept confidential and, unless otherwise
required by law, regulation or valid court order, shall not be disclosed to any
person except as authorized by the PA in writing. Upon termination of this
Agreement, DCA agrees that it shall promptly return to the PA all PA Proprietary
Information then it its possession or control. Notwithstanding the foregoing, it
is expressly acknowledged and agreed by the PA and the
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Stockholder that, in the event of termination of this Agreement for cause by DCA
or termination without cause by the PA or the Stockholder, the requirements of
this Section shall not prohibit DCA or dentists associated with the PA, subject
to all applicable laws governing the confidentiality of patient records and the
consent of the patients in question, arranging for the transfer of patient
records to such other dentists.
Notwithstanding the foregoing, it is further expressly acknowledged and
agreed by the PA and the Stockholder that, in the event DCA or ________________,
D.D.S exercise the option as set forth in 6.2(D), the requirements of this
Section shall not prohibit DCA or dentists associated with the PA, subject to
all applicable laws governing the confidentiality of patient records and the
consent of the patients in question, arranging for the transfer of patient
records to such other dentists.
7.3. TRADE SECRETS COVENANT. During the term of this Agreement and for
an additional five (5) year period from the termination of the same, PA and
Stockholder agree that they will not disclose to any person or entity, any trade
secrets of DCA including, but not limited to, manuals, operating systems,
reporting systems, training systems, that the PA and Stockholder have become
privy to or have used during their involvement with DCA. This covenant on the
part of PA and Stockholder shall be construed as an agreement.
7.4. NONSOLICITATION AGREEMENT. PA and Stockholder agrees that they
shall not during or at any time after termination or expiration of this
Agreement solicit any employees of DCA to leave DCA or become employed by either
of them or any entity with which either of them is directly or indirectly
related. PA and Stockholder agree that during this agreement and for one year
subsequent to the proper termination or expiration hereof, it or he will not
solicit any customers, clients, buyers, distributors or manufacturers to cease
doing business with DCA, or to do business with them or any entity, business,
corporation or partnership with which either PA and/or Stockholder are either
directly or indirectly related.
7.5. RETURN OF DCA DOCUMENT, INFORMATION OR PRODUCTS. PA and
Stockholder agrees that upon termination or expiration of this Agreement with
DCA for any reason, they shall immediately, but no longer than ten (10) business
days from such termination, return to DCA all documents or information in any
form or medium, whether written or electronic, either owned by DCA, or to which
DCA has a right of possession, including, but not limited to, customer lists,
pricing lists, commercial material, manufacturers' information, correspondence,
financial
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information, etc. In addition, PA and Stockholder shall return all products,
samples and any and all research regarding same by appropriate carrier to DCA
immediately, but no later than ten (10) business days from the termination or
expiration of this Agreement. PA and Stockholder further agree to return any and
all equipment, computers, vehicles, etc. either owned by or to which DCA has a
right of possession, immediately upon termination or expiration of this
Agreement or within ten (10) business days after termination or expiration. The
return of such documentation, information and/or products and equipment shall be
a strict condition precedent to the payment of any and all commissions/salary or
any other compensation, if any, then due and owing to PA and/or Stockholder, and
the failure to return documents, products or equipment in a timely manner shall
entitle DCA to withhold any and all payments due to PA and/or Stockholder until
compliance with these provisions.
VIII. INDEPENDENT CONTRACTORS
8.1. INDEPENDENT RELATIONSHIP. DCA intends to act and perform as an
independent contractor of the PA, and the provisions hereof are not intended to
create any partnership, joint venture, agency or employment relationship between
the parties. The PA, the Stockholder and the Dentists will not have any claim
under this Agreement, or otherwise, against DCA for vacation pay, sick leave,
unemployment insurance, worker's compensation, disability benefits or employee
or any other employment related benefits of any nature or kind.
IX. GENERAL PROVISIONS
9.1. ASSIGNMENT. DCA shall have the right to assign or sell its rights
and obligations hereunder to any person, corporation, partnership or other legal
entity. Except as set forth above, neither DCA nor the PA shall have the right
to assign their respective rights and obligations hereunder without the written
consent of the other party. Subject to this provision, this Agreement shall be
binding upon the parties hereto, and their successors and assigns.
9.2. WHOLE AGREEMENT; MODIFICATION. There are no other agreements or
understandings, written or oral, between the parties regarding this Agreement
and the Exhibits, other than as set forth herein. This Agreement shall not be
modified or amended except by a written document executed by all parties to this
Agreement.
9.3. NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will
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be deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by facsimile transmission (with written
confirmation of receipt), provided that a copy is mailed by certified mail,
return receipt requested, or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case to the appropriate addresses and facsimile numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate by written
notice to the other parties with such written notice to be given as set forth in
this section).
To PA
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And to Stockholder:
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To DCA: Dental Care Alliance, L.L.C.
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile No: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxx
With a copy to: Xxxx, Band, Russell, Collier, Xxxxxxxxx
and Xxxxxx Chartered
P. O. Xxx 00000
Xxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esquire
9.4. WAIVER OF PROVISIONS. Any waiver of any terms and conditions
hereof must be in writing, and signed by the parties hereto. The Waiver of any
of the terms and conditions of this Agreement shall not be construed as a waiver
of any other terms and conditions hereof.
9.5. GOVERNING LAW. The validity, interpretation and performance of
this Agreement shall be governed by and construed in accordance with the laws of
the State of Florida.
9.6. EVENTS EXCUSING PERFORMANCE. Neither party shall be liable to the
other party for failure to perform any of the services required herein in the
event of strikes, lock-outs, acts of God, unavailability of supplies or other
events over which
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that party has no control for so long as such events continue, and for a
reasonable period of time thereafter.
9.7. COMPLIANCE WITH APPLICABLE LAWS. All parties shall comply with all
applicable federal, state and local laws, regulations and restrictions in the
conduct of their obligations under this Agreement.
9.8. SEVERABILITY. The provisions of this Agreement shall be deemed
severally and if any portion shall be held invalid, illegal or unenforceable for
any reason, the remainder of this Agreement shall be effective and binding upon
the parties.
9.9. ADDITIONAL DOCUMENTS. Each of the parties hereto agrees to execute
any document or documents that may be requested from time to time by any other
party to implement or complete such party's obligations pursuant to this
Agreement.
9.10. ATTORNEYS' FEES. If legal action is commenced by any party to
enforce or defend its rights under this Agreement, the prevailing party in such
action shall be entitled to recover its costs and reasonable attorneys' fees in
addition to any other relief granted.
9.11. CONTRACT MODIFICATIONS FOR PROSPECTIVE LEGAL EVENTS. In the event
any state or federal laws or regulations, now existing or enacted or promulgated
after the effective date of this Agreement, are interpreted by judicial
decision, a regulatory agency or legal counsel for both parties in such a manner
as to indicate that the structure of this Agreement may be in violation of such
laws or regulations, the PA, Stockholder and DCA shall amend this Agreement as
necessary To the maximum extent possible, any such amendment shall preserve the
underlying economic and financial arrangements between the PA, Stockholder and
the DCA.
9.12. REMEDIES CUMULATIVE. No remedy set forth in this Agreement or
otherwise conferred upon or reserved to any party by law shall be considered
exclusive of any other remedy available to any party, but the same shall be
distinct, separate and cumulative and may be exercised from time to time as
often as occasion may arise or as may be deemed expedient.
9.13. LANGUAGE CONSTRUCTION. The language in all parts of this
Agreement shall be construed, in all cases, according to parties acknowledgment
that each party and its counsel have reviewed and revised this Agreement and
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
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9.14. NO OBLIGATION TO THIRD PARTIES. None of the obligations and
duties of any party under this Agreement shall in any way or in any manner be
deemed to create any obligation to, or any rights in, any person or entity not a
party to this Agreement.
9.15. ENTIRE AGREEMENT/AMENDMENTS. This Agreement supersedes all
previous contracts and agreements between the parties respecting the subject
matter of this Agreement. As between or among the parties, no oral statement or
prior written material not specifically incorporated herein shall be of any
force and effect. This Agreement may be executed in two or more counterparts,
each and all of which shall be deemed an original and all of which together
shall constitute but one and the same instrument and shall not be amended,
altered or changed except by a written amendment signed by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
P.A.:
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By:
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Signature
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Printed Name
PRESIDENT
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Title
STOCKHOLDER:
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By:
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Signature
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Printed Name
STOCKHOLDER
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Title
DCA:
DENTAL CARE ALLIANCE, INC., A Delaware
Corporation
By:
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Signature
XXXXXX XXXXXXX
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Printed Name
PRESIDENT
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Title
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EXHIBIT A
PRACTICE LOCATION
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EXHIBIT B
BUSINESS AND ADMINISTRATIVE SERVICES PROVIDED BY DCA
DCA shall be responsible for providing all business and administrative
services required for the routine day-to-day operations of the Practice'
operations, only as follows; and otherwise as deemed reasonably necessary by
DCA, or in the sole discretion of DCA as may be reasonably requested by PA.
(a) Employment and training of the Practice's non-dental staff.
(b) Payroll administration and accounting.
(c) Consulting advice on staff salaries, benefits and performance and
incentive plans.
(d) Recruitment of additional dentists.
(e) Facilitating the ordering of supplies.
(f) Bookkeeping and accounting. Preparation of monthly financial
statements providing true, correct and complete copies thereto to
PA each month, as and when same are completed.
(g) Processing and distribution of all checks, including but not
limited to, payroll, payables, taxes and rents, and provision of
copies of all bank statements to PA on a monthly basis promptly
after the same are received by DCA.
(h) Provision of business forms, and provision of consulting advice on
business procedures any systems.
(i) Establishment of administrative controls to assure against theft.
(j) Billing and collections supervision.
(k) Marketing and advertising.
(l) Installation of computer hardware and software. Training of staff
in utilization.
(m) Preparation of statistical data and analysis of office operations.
(n) Provision of consulting advice on improving office efficiency.
17
(o) Provision of consulting advise on office location and layouts.
(p) Negotiation of office leases.
(q) Legal services for the Practice's routine operations (not
including professional liability or malpractice defense).
(r) Solicitation of and assistance in negotiations of managed care
contracts.
(s) Consulting services and advice (as requested) on office efficiency
and productivity.
(t) On behalf of the PA, and with the PA's funds (there is no
independent obligation of DCA to anyone to make any payments
except to the extent of the availability of PA funds) payment of
all accounts and notes payable as and when the same become due and
payable in accordance with their respective terms.
18
EXHIBIT C
SUBLEASE
EXHIBIT D
INDEPENDENT CONTRACTOR INDEMNITY
AND COVENANT NOT TO COMPLETE AGREEMENT
THIS INDEPENDENT CONTRACTOR AND INDEMNITY AGREEMENT AND COVENANT NOT TO
COMPLETE made this ___ day of _________ 199_, by and between ______________,
("the company") and __________, D.D.S. ("the Dentist")
RECITALS
1. The Dentist is licensed to perform dental services by the State of
________.
2. The Company owns a dental office(s) ("the Dental Office") located at______
__________________________________________________________________________
__________________________________________________________________________
_________________________________________________________________________.
3. The company desires to enter into a contractual relationship with the
Dentist for the purpose of the Dentist providing dental service at the
Dental Office upon the terms and conditions hereinafter set forth.
4. The Dentist desires to be retained by the company to provide such services.
TERMS
5. The company hereby retains the Dentist as an independent contractor for the
purpose of providing dental services at the Dental Office upon the terms
and conditions hereinafter set forth, and the Dentist agrees to be so
retained.
6. The terms of this agreement shall be for a period of two (2) years,
commencing _________, 199_.
7. The Dentist shall be retained by the company as an "independent contractor"
and neither the Dentist nor any of his employees or agents, if any, shall
be subject to the control and direction of the company, its employees or
its agents, with respect to the means by which the Dentist shall perform
and accomplish the tasks assigned to him by the Company in connection with
providing dental services at the Dental Office. Neither the dentist nor his
employees or agents, if any, shall be deemed to be employees of the Company
nor eligible to participate in any employees fringe benefit program now of
hereinafter provided by the company. The Dentist's sole remuneration for
the services rendered by
20
him during the terms of this agreement will arise from and be determined solely
by and through his acts and efforts.
8. Subject to the terms and conditions hereinafter set forth, the Dentist
shall, during the effective term of this agreement, provide dental;
services at the Dental Office. and shall supervise all other dentists,
professional corporations and staff employed by and/or contracted with the
Company. In fulfillment of the foregoing responsibilities, the Dentist
agrees to have due regard to the number of patients to be treated at the
Dental office the high standards of professional practice associated with
the Company, and all practices pertaining to high quality patient care and
services.
9. The Dentist has obtained, and has in effect, professional liability
insurances coverage in amounts reasonably necessary to cover actions and/or
injuries which may be foreseeable in light of the service which the Dentist
performs on the premises of the Company, but in no event shall the
insurance be less than $500,000.00 per occurrence, and the Company shall be
named as an additional insured. Proof of existence of said insurance
coverage shall be provided upon the execution of this agreement.
10. The Dentist agrees to indemnify and hold harmless, to the fullest extent
permitted by law, and its officers, agents and employees from and against
all claims, damages, losses and expenses, including, but not limited to,
attorney's fees and expenses, arising out of or resulting from (a) the
actions or inaction of the Dentist contributing to bodily injury, sickness,
disease or death, and to other injury or illness including the loss of any
income resulting therefrom, to the extent caused in whole or in part by any
negligent act or omission of the Dentist or anyone directly employed by him
or anyone for whose acts he may be liable; or (b) any breech of the
representations or warranties constrained herein. Such obligation shall not
be construed to negate, or indemnity which would otherwise exist in favor
of the Company against the Dentist.
11. Either party can terminate this agreement at any time, with or without
cause, upon thirty (30) days prior written notice. Notwithstanding the
foregoing, in the event the Dentist is disqualified from practicing
dentistry in ________, This agreement shall be terminated immediately.
12. The Dentist acknowledges that he may be provided or otherwise receive
information containing confidential matters and/or trade secrets of the
Company, which, if
21
revealed to him shall be done so in strict confidence, and, therefore, the
Dentist does hereby agrees not to reveal any portion thereof and to keep
the confidence hereunder imposed during the terms of this agreement and at
all times thereafter.
13. The Dentist has made certain representations as to the educational
credentials, training, job experiences and past responsibilities of the
Dentist which the Company has relied upon in retaining the Dentist's
services. Any material misrepresentations in the information provided by
the Dentist shall make this Agreement null and void.
14. It is understood and agreed by and between the parties hereto that the
following representations from a material inducement for the company to
enter into this agreement:
(a) The Dentist does hereby represent and warrant that he has complied with
all laws and regulations, violations of which may have materially adverse
effect on the operation of the Dental Office and/or the Dentists
performance hereunder, that he has the right to enter into and perform this
agreement and is not restricted or limited in any manner whatsoever by
reason of any promises, covenants, contract or other agreements, either
written or oral, that he has entered into with any other person of entity:
and,
(b) Without limiting the generality of the foregoing, the Dentist does
hereby specifically represent and warrant that he has not entered into any
contract or agreement whatsoever, either written or oral, with any (1)
former partner or partnership, (2) shareholders or professional
corporations, or (3) any other dentists with whom he may have been
associated, employed by or otherwise involved with in the practice of
dentistry which may affect the operation of the Dental Office or his
performance hereunder.
15. (a) The Dentist covenants and agrees that, during the terms of this
agreement and for a period of three years after its termination, he shall
not, directly or indirectly, for his own account or as an agent, servant,
employee, consultant, independent contractor, representative, or as a
shareholder or director of any corporation or member of any firm or
otherwise engage or attempt to engage in any dental practice within a five
mile radius of the premises of the Dental Offices located at______________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
to become effective 90 days after the date of hire.
22
(b) The Dentist also covenants and agrees that he shall not solicit any
patient of the Company or request or advise any patient of the Company to
withdraw, curtail or cancel his use or employment of the Company's
services. As used in this SECTION 15, the term "patient" shall mean any
individual who received dental services from the company within three days
prior to this agreement. SECTIONS 15B will not be valid until 90 days after
original date of signature.
(c) The invalidity or non-enforceability of this SECTION 15, in any
respect, shall not affect the validity or enforceability of this SECTION 15
in any other respect, or of any other provision of this Agreement. In the
event that any other provision of this SECTION 15 shall be held invalid or
unenforceable by a court of competent jurisdiction by reason of the
business scope, or the duration thereof, or for any other reason, such
invalidity or unenforceable shall attach only to the particular aspect of
such provision found invalid or unenforceable, as applied, and shall not
affect or render invalid or unenforceable any other provision in other
circumstances, and, to the fullest extent permitted by law, this SECTION
15, shall be construed as if the business scope or the duration of such
provision or other basis on which provision has been challenged had been
more narrowly drafted so as not to be invalid or unenforceable.
(d) It is acknowledge that no adequate remedy at law exists for breach of
this SECTION 15. In addition to any other right or remedy which the Company
may have at law or in equity, the Company shall be entitled to appropriate
injunctive relief, including preliminary and mandatory injunctive relief,
without posting of any bond or other security, enjoining or restraining the
Dentist from any violation or threatened violation of this SECTION 15.
16. As remuneration for the services provided by the Dentist under the terms of
this agreement, the Company shall pay the Dentist as follows:
17. All notices to the parties hereto shall be delivered by certified or
registered mail, postage prepaid, at the respective address set forth
above, or at such other address as one party may, form time to time,
designate in writing to the other party.
18. The Dentist shall have no authority, express or implied by virtue of this
agreement, to act as a general agent of the Company, and nothing herein
shall be construed to permit or all the Dentist to bind the Company to any
contract, undertaking or other obligation
23
19. This agreement is made for the benefit of and shall be binding upon, all of
the parties, their legal representatives, successors and assigns: provided,
however, that none of the rights and/or obligations of the Dentist shall be
assigned or delegated.
20. The validity and construction of, and all rights under this agreement shall
be governed by the laws of the State of ___________, and if any provisions
shall be held invalid or enforceable, in whole or in part, such provision
shall be valid to the maximum extent provided by law, and all remaining
provisions of this agreement shall be fully enforceable.
21. This agreement constitutes the entire agreement and understanding of the
parties hereto pertaining to the subject matter contained herein and
supersedes all prior and contemporaneous agreements, representation and
understanding, whether written or oral, regarding the matters herein set
forth. No supplement, modification or amendment to this agreement shall be
binding unless executed in writing and signed by all parties hereto.
22. All the Company's remedies hereunder are and shall be cumulative in nature
and not exclusive, and the exercise by the Company at any time of any
remedy hereunder shall not preclude it from later exercising any of its
other remedies hereunder (or under other applicable law), nor constitute an
election of such remedy to the exclusion of others.
THE COMPANY
By:________________________________
Its
DENTIST:
___________________________________
EXHIBIT E PRACTICE EXPENSES
COST OF SALES
Dental Supplies
Implant Supplies
Lab Expense-Internal
Lab Expense-External
Materials
Contract Dentists
Hygiene Wages
Lab Tech. Wages
OPERATING EXPENSES, COMPENSATION & BENEFITS, SALARIES & WAGES
Officer Wages
Dental Assistant Wages
Administrative Wages
Bonuses
PAYROLL TAXES
FICA Tax Expense
Medicare Tax Expense
FUTA Tax Expense
SUTA Tax Expense
BENEFITS
Health Insurance
Continuing Education
FACILITIES
Rent-Office
Rent-other
Telephone
Pest Control
Cleaning Service
Utilities
REPAIRS & MAINTENANCE
Dental Equipment
Computer Equipment
Building
Office Equipment
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ADVERTISING
Television
Newspaper
Yellow Pages
Magazines
Direct Mail
Seminars
OUTSIDE SERVICES
Accounting Services
Payroll Services
Auditing Services
Legal Services
Temporary Help
Misc. Outside Services
LEASE EXPENSE
Dental Equipment Lease
Telephone Lease
Computer Lease
Office Equipment Lease
INSURANCE
Workers Compensation Ins.
Liability Insurance
Malpractice Insurance
Misc. Insurance
GENERAL OFFICE EXPENSES
Administrative Support
Vehicle Expense
Computer Expense
Contributions & Donations
Dues & Subscriptions
Office Expenses
Small Equipment Tools
Operating Supplies
Uniforms
Postage & Freight
MISCELLANEOUS EXPENSES
Bank Charges
Cash
Over/Short
26
Check Guarantee Fees
Credit Card Charges
License, Fees & Permits
Taxes-Other
Property Taxes
Sales Taxes
State Taxes
Reimbursement Expenses
DCA Licensing Fees
Other Misc. Expenses
PRINCIPAL & INTEREST EXPENSE
Notes associated with practice capitalization
27
EXHIBIT F
DEFINITION OF NET PROFIT
Net profit shall be defined as:
Total collected revenues on a cash basis minus any patient refunds
minus practice expenses (listed in EXHIBIT E).
DCA shall then receive ____% of net profit for services rendered.
28
EXHIBIT G
SHORT FORM LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into this ___ day
of _______ 19__, 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 ____________________ an
individual/corporation residing located at _____________ ("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 operate
a Dental Office (as hereinafter defined).
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 simultaneously with the DCA
Administrative Service Agreement of even date 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 operate a single dental service office at the following
location: ________________________________________________
________________________ (the "Dental Office"); and
(b) To identify the foregoing Dental Office as a member of the
Network and to use one or more of the Licensed Marks in
connection therewith.
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:_______________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(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.
30
4. PAYMENT OBLIGATIONS OF LICENSEE.
In consideration of the License herein granted Licensee hereby agrees
and consents as follows:
(a) Licensee shall pay to DCA, for each month during the Original
Term, a monthly license fee (the "License Fee") in the amount
of One Thousand Dollars ($1,000), 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.
5. OTHER OBLIGATIONS OF LICENSEE.
5.1 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.
5.2 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 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 in its sole discretion, to amend
the
31
DCA Warranty or to adopt additional warranty policies and that, in such
instances, Licensee shall be required to honor and otherwise fully
comply with such amended or adopted policies.
5.3 RESTRICTIONS ON OPERATIONS. Licensee's Dental Office may not
be used for any purpose other than the operation of dental service
related businesses. Licensee shall not provide any nondental related
services at the Dental Office that are not otherwise approved by DCA in
its sole and absolute discretion.
6. REPRESENTATIONS AND WARRANTIES.
Licensee represents and warrants to DCA that, for so long as this
Agreement is in effect, 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
32
third party or any challenge to Licensee's use of any of the Licensed Marks.
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.
33
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.
9. TERMINATION.
This License Agreement shall terminate immediately upon the termination
of DCA's Administrative Service Agreement attached hereto. The terms and
conditions of paragraph 6 of DCA's Administrative Service Agreement shall
control the termination of this License Agreement.
10. 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.
34
(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 and any
other agreement, instrument or document executed in
connection herewith, including, without limitation, any and
all outstanding License Fees, rent, amounts owed for items
leased or purchased from DCA or any of the foregoing, and all
other amounts owed by Licensee to DCA or any DCA Affiliate
that remain unpaid as of such date.
(f) 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.
11. REMEDIES OF DCA: ENFORCEMENT.
11.1 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 two
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.
11.2 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 of 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
35
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.
12. ASSIGNMENT.
12.1 BY LICENSEE. 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
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.
12.2 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.
13. COVENANTS AND RESTRICTIONS.
13.1 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. In addition, through this license
agreement and by the use of license marks, network materials and network
affiliation, Licensee will establish substantial relationship with prospective
or existing patients, customers, vendors, manufacturers, dental equipment
suppliers, advertisers, managed care contractors, and insurance providers.
Licensee will have the benefit of the good will associated with the license xxxx
and by being a network provider obtain goodwill specifically
36
in the tradename, trademark and service xxxx of Dental Care Alliance and the
marks as described in Paragraph 9 above and any subsequent license marks adopted
by Licensor.
Licensee hereby agrees that it will not, during the course of this
License Agreement and for a period of three years from the effective date of
termination of this agreement, or if Licensee continues as a licensed operation
subsequent to the expiration of any written agreement three years from the
effective date that Licensee ceases to be affiliated with the Licensor, engaged
directly or indirectly in a business competitive with Licensor. Licensee further
agrees that during the said three year period that it will not directly or
indirectly be connected with any person, corporation, or business entity in
competition with Licensor. Licensee, its officers, directors and shareholders
shall have no financial interest in or in any business which is competitive with
Licensor.
Further, Licensee will cause each of its professional employees to
execute a covenant not to compete as set forth in attached EXHIBIT "D" and
agrees to cause such professional employees to refrain from engaging in any
competitive businesses either as a principal, investor, consultant or employee
that is similar to or competes with business conducted by Licensor.
13.2 COVENANT NOT TO DISCLOSE TRADE SECRET. During the term of this
Agreement and for an additional five 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 relating to the Licensor or the business
of the Licensee that the Licensee has become privy to or has used during its
involvement with Licensor.
13.3 ENFORCEMENT OF COVENANTS. 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 these
covenants 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 the covenants. It is agreed
by the Licensor and Licensee that if any portion of the restrictive covenants is
held unreasonable, arbitrary or against public policy these covenants shall be
considered to be diminishable both as to time and geographical area. To the
extent necessary to make it enforceable. These covenants shall not be construed
narrowly against the drafter but shall be given their
37
fullest, broadest interpretation to protect the legitimate business interest or
Licensor.
It is understood that a court of competent jurisdiction shall enforce
the restrictive covenants by any appropriate and effective remedy, including,
but not limited to, temporary and permanent injunctions. The violation of these
restrictive covenants 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 restrictive
covenants contained herein are freely assignable by Licensor, in its sole
discretion, and any assignee, successor or third-party beneficiary to this
agreement may enforce these restrictive covenants.
The laws of the State of Florida shall control the interpretation of
these restrictive covenants. Licensee specifically agrees that the Twelfth
Judicial Circuit in and for Sarasota County, Florida, has jurisdiction over the
enforcement of these restrictive covenants, 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.
14. INDEMNIFICATION.
Licensee shall indemnify, defend and hold harmless as set forth in
Paragraph 5.4 in the Administrative Services Agreement attached hereto.
15. 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:
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If to DCA, to:
Dental Care Alliance, L.C.
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 hereunder by giving notice thereof to the other party
in accordance with this SECTION 19.
16. 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.
17. WAIVER.
No failure of DCA to exercise any right given to it hereunder, or to
insist upon strict compliance by Licensee of any obligation hereunder, and no
custom or practice of the parties at variance with the terms hereof shall
constitute a waiver of DCA's right to demand exact compliance with the terms
hereof. Waiver by DCA of any particular default by Licensee shall not affect or
impair DCA's rights in respect to any subsequent default of the same or of a
different nature, nor shall any delay or omission of DCA to exercise any rights
arising from such default, affect or impair DCA's right as to such default or
any subsequent default.
18. 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 DCA 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 DCA 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.
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19. 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.
20. 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.
21. EFFECTIVE DATE.
This Agreement shall not be effective until executed by DCA.
22. ONGOING OBLIGATIONS.
Licensee agrees that it will not, on grounds of the alleged
nonperformance by DCA or any DCA Affiliate of any of their respective
obligations hereunder, withhold payment of any License Fees, Advertising Fees,
amounts due to DCA or any DCA Affiliate for purchases by Licensee, or any other
amounts due DCA or any DCA Affiliate hereunder or in connection herewith.
23. 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.
24. CERTIFICATION BY LICENSEE.
Licensee hereby certifies that it has had the opportunity to seek
advice of counsel prior to its execution of this Agreement,
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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.
25. 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.
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, L.C.
By:________________________________
Title:_____________________________
By:________________________________
Signature of LICENSEE
Printed Name:
By:________________________________
Signature of LICENSEE
Printed Name:
Address of Dental Office:
[Notarization of Licensee's Signature]
STATE OF ____________
COUNTY OF____________
On this ___ day of _______________, 19___ before me personally appeared
__________________________ to me known to be the person described in and who
executed the foregoing Agreement and acknowledged that
_____________________________ executed the same as free act and deed.
_________________________________
Notary Public
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[Seal]
STATE OF
COUNTY OF
On this day of , 19 before me personally appeared to me known to be the
person described in and who executed the foregoing Agreement and acknowledged
that executed the same as free act and deed.
________________________________
Notary Public
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EXHIBIT J
PRACTICE EXPENSE
COST OF SALES
Dental Supplies
Implant Supplies
Lab Expense-Internal
Lab Expense-External
Materials
Contract Dentists
Stockholder Salary (excluding his profit distribution)
Hygiene Wages
Lab Tech. Wages
OPERATING EXPENSES, COMPENSATION & BENEFITS, SALARIES & WAGES
Dental Assistant Wages
Administrative Personnel Wages
Bonuses
PAYROLL TAXES
FICA Tax Expense
Medicare Tax Expense
FUTA Tax Expense
SUTA Tax Expense
BENEFITS
Health Insurance
Continuing Education
Fringe benefits for the Stockholder up to an aggregate of $1,000 per
month
FACILITIES
Rent-Office
Rent-other
Telephone
Pest Control
Cleaning Service Utilities
REPAIRS & MAINTENANCE
Dental Equipment
Computer Equipment
Building Office Equipment
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ADVERTISING
Television
Newspaper
Yellow Pages
Magazines
Direct Sales
Seminars for the Stockholder
OUTSIDE SERVICES
Accounting Services
Payroll Services
Auditing Services
Legal Services
Temporary Help
Misc. Outside Services
LEASE EXPENSE
Dental Equipment Lease
Telephone Lease
Computer Lease
Office Equipment Lease
INSURANCE
Workers Compensation Insurance
Liability Insurance
Malpractice Insurance
Misc. Insurance
Property and Casualty Insurance (office, Building)
Personal Property (contents)
Coverage Insurance
GENERAL OFFICE EXPENSES
Administrative Support
Vehicle Expense
Computer Expense
Dues & Subscriptions
Office Expenses
Small Equipment Tools
Operating Supplies
Uniforms
Postage & Freight
MISCELLANEOUS EXPENSES
Bank Charges
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Cash Over/Short
Credit Guarantee Fees
Credit Card Charges
License, Fees & Permits
Taxes-Others
Property Taxes
Sales Taxes
State Taxes
Reimbursement Expenses
DCA Licensing Fees up to $1,000 per month
Other Misc. Expenses
PRINCIPAL & INTEREST EXPENSE
Notes associated with practice capitalization
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SCHEDULE 7(G)
NONE
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SCHEDULE 7(I)
1. Option to purchase the Company's common stock as set forth in Letter
Agreement, dated September 29, 1995, between The Nassau Group, Inc. and the
Company as amended on April 25, 1996 (the "Nassau Agreement") attached
hereto.
2. Commitment to issue, upon satisfaction of certain conditions, warrant
exercisable to purchase common stock of the Company as set forth in the
Nassau Agreement.
3. Agreement to issue and sell to J. Xxxxxxx Xxxxxxx shares of common stock as
set forth in the Letter Agreement, dated September 29, 1995, between the
Company and J. Xxxxxxx Xxxxxxx attached hereto.
4. Xxxxxxxx X. Xxxx Employment Agreement
5. Warrant to purchase the Company's common stock as set forth in the
amendment to the Xxxxxxxx X. Xxxx Employment Agreement, dated as of October
24, 1996.
6. Xxxxxx X. Xxxxxxx Employment Agreement.
7. The Company's Stock Option Plan.
8. It is contemplated that in the event an employee leaves or is terminated
from employment by the Company, the Company will repurchase shares from
such employee.
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