EXHIBIT 10.65
Draft
9/20/96
9/24/96
9/30/96
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement") dated as of ___________, 1996
by and among Castle Dental Centers of New York, Inc., a New York corporation
("Castle"), American Medical and Life Insurance Company, a New York insurance
company ("AMLI"), and Xxxxx X. Xxxx D.D.S.("Xx. Xxxx") who agree as follows:
1. INTRODUCTION. Prior to the date of this Agreement, on September 3, 0000,
Xxxxxx, Xx. Xxxx and certain other parties entered into an Asset Purchase
Agreement (the "Asset Purchase Agreement") which contemplated the purchase by
Castle of certain identified assets and the negotiation and execution of certain
other agreements between Castle and certain other parties, all as more fully
described in the Asset Purchase Agreement. The parties hereto have entered into
this Agreement to document certain of such additional agreements reached by them
as contemplated by the Asset Purchase Agreement. Initially capitalized terms not
otherwise defined herein shall have the meanings assigned to such terms in the
Asset Purchase Agreement.
2. IDENTIFICATION OF SHARED FACILITIES AND EQUIPMENT.Schedule I contains a list
of all facilities and equipment to be shared by Castle and AMLI and the
ownership thereof. Castle and AMLI agree as to the accuracy of the information
contained on Schedule I.
3. USE OF SHARED FACILITIES AND EQUIPMENT. Castle and AMLI agree that for the
term of this Agreement, they will share the use of the facilities and equipment
described on Schedule I on an as needed basis, with an equitable sharing of
operating expenses related to maintenance and operation of the shared facilities
and equipment, including but not limited to taxes, insurance and cost of
repairs.
4. REPLACEMENT OR OBSOLESCENCE OF SHARED FACILITIES AND EQUIPMENT. At such time
as components of the shared facilities and equipment are replaced or become
obsolete, the party owning such facilities and equipment or leasing such
facilities and equipment shall have the absolute right, but not the obligation,
to replace or substitute other facilities and equipment for the facilities and
equipment no longer in use. The non-owning or non-leasing party shall have the
right, but not the obligation, to share the use of such replaced facilities and
equipment on the basis described in Section 3.
5. IDENTIFICATION OF SHARED EMPLOYEES. Schedule II contains a list of all
employees shared by Castle and AMLI, the employer, job description and the
compensation of each. Castle and AMLI agree as to the accuracy of the
information contained on Schedule II.
6. USE OF SHARED EMPLOYEES. AMLI and Castle each agree that for the term of this
Agreement, each may use the employees of the other described on Schedule II on
an as-needed basis. Castle agrees to reimburse AMLI for salary and other
expenses related to employment of the AMLI employees used by Castle, including
but not limited to taxes, insurance and benefits, and AMLI agrees to reimburse
Castle for salary and other expenses related to employment of the Castle
employees used by AMLI, including but not limited to taxes, insurance and
benefits.
7. REPLACEMENT OF TERMINATED OR RESIGNED EMPLOYEES. At such time as shared
employees are terminated or resign, the employer of such personnel shall have
the absolute right, but not the obligation, to replace or not replace such
employee. The non-employing party shall have the right, but not the obligation,
to share the use of any replacement employee on an economic basis calculated in
the same manner as described in Section 6.
8. CONFIDENTIALITY. The parties hereto acknowledge that the sharing of
facilities, equipment and employees involves the likelihood of each party hereto
having access to and knowledge of Confidential Information (as hereinafter
defined) of the other. Castle and AMLI each agree that it will not, during or
after the term of this Agreement, in whole or in part, disclose such
Confidential Information of the other to any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever, nor shall it
make use of any such Confidential Information for its own purposes or for the
purposes of others; provided, however, that nothing in this Section shall be
construed to prohibit the disclosure of such Confidential Information by a party
hereto (i) to an officer, director employee or agent of Castle or AMLI; (ii) as
is reasonably necessary for the performance of its duties and responsibilities
under this Agreement; or (iii) as otherwise required by law. If a party hereto
is required by law to disclose "Confidential Information," such party shall
notify the other party, in writing, of the nature of such disclosure and the
Confidential Information to be disclosed, as soon as is possible and/or
practical, and permit such other party the opportunity to contest or limit such
disclosure.
9. CONFIDENTIAL INFORMATION DEFINED. The term "Confidential Information" shall
mean any information of Castle or AMLI, as the case may be (whether written or
oral), including all notes, studies, patient lists, information, forms, business
or management methods, marketing data, fee schedules, or trade secrets of Castle
or AMLI, as the case may be. Confidential Information shall
-2-
also include the terms and provisions of this Agreement and any transaction or
document executed by the parties pursuant to this Agreement. Confidential
Information does not include any information that (i) is or becomes generally
available to and known by the public (other than as a result of an unpermitted
disclosure directly or indirectly by a party hereto or its affiliates, advisors,
or representatives); (ii) is or becomes available to the receiving party on a
nonconfidential basis from a source other than a party hereto or its affiliates,
advisors, or representatives, provided that such source is not and was not bound
by a confidentiality agreement with or other obligation of secrecy to a party
hereto of which the receiving party has knowledge at the time of such
disclosure; or (iii) has already been or is hereafter independently acquired or
developed by the receiving party without violating any confidentiality agreement
with or other obligation of secrecy to a party hereto.
10. DELIVERY OF MATERIALS. Each party hereto further agrees to deliver to the
other at the termination of this Agreement, or at any other time upon request,
all correspondence, memoranda, notes, records (including computer records and
data), drawings, sketches, plans, customer lists, and other documents, which are
made, composed, or received by a party hereto solely or jointly with others,
during the term of this Agreement and which are in such party's possession,
custody, or control at such date and which are related in any manner to the
past, present or anticipated business of Castle or AMLI.
11. TERM. Unless terminated sooner by the written agreement of the parties
hereto, the term of this Agreement shall commence on the date hereof and
continue for so long as Castle (or any of its affiliated dental practices) and
AMLI occupy the same premises at 00 Xxxxxxxx, Xxxxxxxxxx, Xxx Xxxx. If either
party hereto shall elect to vacate such premises, it shall give the other party
hereto not less than eight months prior written notice of such intention to
vacate.
12. MISCELLANEOUS.
12.1 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors, heirs and assigns of the parties hereto.
12.2 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
12.3 HEADINGS. The headings of the Sections and paragraphs of
this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
-3-
12.4 MODIFICATION AND WAIVER. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the parties hereto, except
that any of the terms or provisions of this Agreement may be waived in writing
at any time by the party which is entitled to the benefits of such waived terms
or provisions. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar). No delay on the part of either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
12.5 NO THIRD PARTY BENEFICIARY RIGHTS. This Agreement is not
intended to and shall not be construed to give any Person (other than the
parties signatory hereto any interest or rights (including, without limitation,
any third party beneficiary rights) with respect to or in connection with any
agreement or provision contained herein or contemplated hereby.
12.6 NOTICE. Any notice, request, instruction or other document
to be given hereunder by any party hereto to any other party shall be
sufficiently given if delivered in person or sent by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to Castle, to:
Castle Dental Centers of New York, Inc.
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
with a copy to:
Xx. Xxxxxxx X. Xxxxxxxxx
Bracewell & Xxxxxxxxx, L.L.P.
South Tower Pennzoil Place
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
if to AMLI to:
American Medical and Life Insurance Company
00 Xxxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx D.D.S.
-4-
with a copy to:
Xx. Xxxxxxx X. Xxxxx
Kaufmann, Feiner, Yamin,
Xxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or at such other address for a party as shall be specified by like notice, and
such notice or communication shall be deemed to have been duly given as of the
date so delivered, mailed or sent by telecopier.
12.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regards
to conflict of law rules thereof.
12.8 SEVERABILITY. If any provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled.
12.9 ENFORCEMENT. The parties hereto agree that the remedy at law
for any breach of this Agreement is inadequate and that should any dispute arise
concerning any matter hereunder, this Agreement shall be enforceable in a court
of equity by an injunction or a decree of specific performance. Such remedies
shall, however, be cumulative and nonexclusive, and shall be in addition to any
other remedies which the parties hereto may have.
-5-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed on its behalf as of the date first above written.
CASTLE DENTAL CENTERS OF NEW YORK,
INC.
By:_____________________________
Name: Xxxx X. Xxxxxx, Xx.
Title: Chief Executive Officer
AMERICAN MEDICAL AND LIFE INSURANCE
COMPANY
By:_____________________________
Name: Xxxxx X. Xxxx D.D.S.
--------------------------------
Xxxxx X. Xxxx D.D.S.
-6-
