Exhibit 10.29
CONSULTING AGREEMENT
THIS AGREEMENT, dated as of May 1, 1997, by and between Omega
Orthodontics, Inc., a Delaware corporation (the "Company"), and C. Xxxx Xxxxxxx,
residing in Lynnfield, Massachusetts (the "Consultant").
WHEREAS, the Company desires to retain Consultant for the period and
upon and subject to the terms herein provided; and
WHEREAS, the Consultant is willing to agree to be retained by the
Company upon and subject to the terms herein provided;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements hereinafter set forth and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
1. RETENTION OF CONSULTANT. The Company hereby retains the Consultant
to provide services as a management consultant and advisor in connection with
the operation of the Company's business.
2. TERM OF AGREEMENT. The term of this Agreement shall be for a period
of three (3) years commencing on the closing of the initial public offering of
the Company's common stock (the "Effective Date") and expiring at midnight on
the day immediately preceding the third anniversary of the Effective Date,
unless terminated prior to that date as provided in Section 7 of this Agreement.
Commencing on the third anniversary of the Effective Date and on each
anniversary thereafter, the term of this Agreement shall be automatically
extended for an additional year, unless either party gives notice of termination
as provided in Subsection 7(c) of this Agreement.
3. CONSULTING DUTIES. During the term of this Agreement and any
extension, the Consultant shall render consulting and advisory services to the
Company, with particular responsibility as the director of the Company's program
to acquire orthodontic practices throughout the United States, including,
without limitation, the marketing of the Company's affiliation program to
orthodontic practices in the United States and the negotiation of the
documentation with the potential affiliates. Such services shall be rendered on
an "on-call" basis, and the Consultant shall be reasonably available at times
during normal business hours and shall use his best efforts to promote the
interests of the Company.
4. INDEPENDENT CONTRACTOR. The Consultant is retained by the Company
only for the purpose and to the extent herein set forth, and the Consultant's
relationship to the Company shall, during the period of the Consultant's
services hereunder, be that of an independent contractor. Accordingly, the
Consultant shall be responsible for the payment of all federal, state and local
income taxes, social security taxes, self-employment taxes, sales taxes,
unemployment insurance taxes and similar taxes attributable to the fees paid by
the Company to
the Consultant pursuant to this Agreement. The Consultant shall not participate
in the Company's employee benefit plans and programs and his compensation shall
be governed exclusively by the terms of this Agreement. Neither party to this
Agreement and none of their respective agents, employees, representatives, or
independent contractors shall (i) be considered an agent, employee or
representative of the other party for any purpose whatsoever; (ii) have any
authority to make any agreement or commitment for the other party or to incur
liability or obligation in the other party's name or on its behalf; or (iii)
represent to third parties that any of them has any right so to bind the other
party hereto.
5. FRINGE BENEFITS. The Consultant shall not be entitled to, and shall
have no claim under this Agreement or otherwise against the Company for, any
so-called fringe benefits, including but not limited to: paid vacation; health
insurance; life insurance; long-term disability insurance; participation in a
profit sharing or pension plan; paid sick leave; or family leave.
6. COMPENSATION. In consideration of the consulting services to be
performed by the Consultant as set forth herein, the Company shall pay the
Consultant a one time fee of $2,500 for each orthodontic practice that
affiliates with the Company following the Effective Date, such fee to be payable
in the month in which such affiliation is completed. Beginning with the first
month after the Company has completed affiliations with an aggregate of fifteen
orthodontic practices, the Company shall pay the Consultant at the rate of
$5,000 per month for that month and each month thereafter during the first 12
months of this Agreement. Notwithstanding the foregoing, the maximum fee payable
to the Consultant hereunder during the first 12 months of this Agreement shall
be $60,000. At the end of the first 12 months of this Agreement, the Company
shall review the workload of the Consultant and shall propose a revised
compensation plan for the remainder of the term of this Agreement. If the
parties cannot agree on such revised compensation plan, the compensation payable
to the Consultant shall remain as stated in this Section 6.
6.1. Reimbursement of Expenses.The Company shall provide for the
payment or reimbursement of all reasonable and necessary expenses incurred by
the Consultant in connection with the performance of his duties under this
Agreement in accordance with the Company's expense reimbursement policy, as such
may change from time to time.
7. TERMINATION.
(a) The Company may terminate this Agreement immediately upon
the occurrence of any of the following: (i) the Consultant's death; (ii) the
Company determines that the Consultant has furnished deceptive or fraudulent
information to the Company; or (iii) the Consultant engages in criminal,
unprofessional, unethical or fraudulent conduct and the Consultant is found
guilty of such conduct by any entity or governmental agency of competent
jurisdiction.
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(b) Either party may terminate this Agreement upon breach by
the other of any material term in this Agreement, which breach has not been
cured to the reasonable satisfaction of the non-breaching party within thirty
(30) days after notice of such breach.
(c) Either party may terminate this Agreement at the end of
the initial term or any extension of this Agreement by giving the other party
ninety (90) days prior written notice of such termination.
(d) Upon termination of this Agreement, the Consultant shall
be entitled to receive such compensation, if any, accrued under the terms of
this Agreement, but unpaid, as of the date of said termination.
8. CONFIDENTIALITY. The Consultant shall not, either during the period
of his consultancy with the Company or thereafter, reveal or disclose to any
person outside the Company or use to his own benefit, any proprietary and
confidential marketing technique or cost method, or any affiliated orthodontist
or orthodontic entity list of the Company or any patient list thereof or any
proprietary and confidential mailing or supplier list, whether or not made,
developed and/or conceived by the Consultant or by others in the employ of the
Company. Upon the termination of the Consultant's consultancy in any manner or
for any reason, the Consultant shall promptly surrender to the Company all
copies of any of the foregoing, together with any other documents, materials,
data, information and equipment belonging to or relating to the Company's
business and in his possession, custody or control, and the Consultant shall not
thereafter retain or deliver to any other person, any of the foregoing or any
summary or memorandum thereof.
9. REPRESENTATIONS. The Consultant hereby represents and warrants that
this Agreement constitutes his valid and binding obligation enforceable in
accordance with its terms and that the execution, delivery and performance of
this Agreement does not violate any agreement, arrangement or restriction of any
kind to which the Consultant is a party or by which he is bound.
10. NOTICES. All notices, requests and demands to or upon the
respective parties hereto shall be sent by hand, certified mail, overnight air
courier service or telecopier (if within a reasonable time a permanent copy is
given by any of the other methods described above), in each case with all
applicable charges paid or otherwise provided for, addressed as follows or to
such other address as may hereafter be designated in writing by the respective
parties hereto:
If to the Consultant:
C. Xxxx Xxxxxxx
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Company:
Omega Orthodontics, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Such notice, requests and demands shall be deemed to have been given or made on
the date of delivery if delivered by hand or by telecopy and on the next
following date if sent by mail or by air courier service.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement
concerning the arrangement between the parties and shall, as of the effective
date, supersede all other agreements or arrangements between the parties with
regard to the subject matter hereof.
12. BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. The obligations of the Company under
this Agreement shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business or similar event relating to the
Company. This Agreement shall not be terminated by reason of any merger,
consolidation or reorganization of the Company, but shall be binding upon and
inure to the benefit of the surviving or resulting entity.
13. ASSIGNMENT. The Consultant may not assign any of his rights or
obligations hereunder without the prior written consent of the Company.
14. MODIFICATION. No waiver or modification of this Agreement or of any
covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding, arbitration or litigation between the parties hereto arising out of
or affecting this Agreement, or the rights or obligations of the parties
hereunder, unless such wavier or modification is in writing, duly executed as
aforesaid.
15. WAIVER. If either party should waive any breach of any provision of
this Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
16. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid or
unenforceable by any court of competent jurisdiction, this Agreement shall be
interpreted as if such invalid agreements or warrants were not contained herein.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered shall be an original,
and all of which
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together shall constitute one instrument. In proving this Agreement, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
18. GOVERNING LAW. It is the intention of the parties hereto that this
Agreement and the performance hereunder be construed in accordance with, under
and pursuant to the laws of the State of Delaware without regard to the
jurisdiction in which any action or special proceeding may be instituted.
19. ATTORNEYS' FEES. In the event that it becomes necessary for any
party hereto to employ an attorney to enforce any provision of this Agreement,
obtain injunctive relief or collect damages on account of a breach of this
Agreement by any other party hereto, the non-prevailing party shall pay to the
prevailing party reasonable attorneys' fees, and such expenses, court costs and
other disbursements as the prevailing party may have expended in such
proceedings, including appeals, upon demand, after settlement or upon the
issuance of a final, non-appealable judgment.
20. HEADINGS. The headings have been inserted for convenience only and
shall not be deemed to limit or otherwise affect any of the provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of the date first above written.
OMEGA ORTHODONTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President
/s/ C. Xxxx Xxxxxxx
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C. Xxxx Xxxxxxx
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