EXCLUSIVE LISTING AGREEMENT
This Agreement is entered into effective as of
________________ (the "Effective Date") and is by and between
_____________________________________ (hereinafter referred to as "Professional") with its principal place of business at ___________________________________ and ddsmatch.com, LLC with its principal place of business at 12800 North Meridian Street, Suite 400, Carmel, Indiana 46033 (hereinafter referred to as "Broker").
WHEREAS, Professional desires to grant to Broker the exclusive right to market for sale or merger Professional's dental practice, and Broker desires to obtain such exclusive right, all on the terms and conditions set forth herein.
WITNESSETH:
In consideration of the mutual covenants herein contained the parties hereby agree as follows:
EXCLUSIVE AGREEMENT. Professional hereby grants Broker the exclusive right to offer for total or partial sale or merger (each, a "Potential Transaction"), Professional's dental practice,
________________________________, (the "Practice"). Additionally, Professional grants Broker the exclusive right to recruit to and place at the Practice a dental associate. During the Term of this Agreement, as hereinafter defined, Professional will promptly refer to and notify Broker of all inquiries and offers received by Professional regarding the Practice.
BROKER OBLIGATIONS.Broker shall undertake to find an interested party (an "Interested Party") for a Potential Transaction with the Practice and assist Professional with such a Potential Transaction. Broker's obligations include:
- Include the Practice with the other listings maintained by Broker;
- Promptly notify Professional of any Interested Party;
- Market the Practice to possible Interested Parties; and
- Assist with all documents regarding any Potential Transaction, and the consummation and closing thereof.
Unless otherwise required by law or regulation, Broker shall be responsible for procuring and maintaining, at Broker's expense, all licenses required by any governmental agency for transacting business under this Agreement. Broker shall also be responsible for obtaining an appointment with the Practice. Broker understands and acknowledges that Practice shall pay no compensation on business produced before Broker is appropriately licensed and appointed by the Practice.
Broker agrees to comply with the Practice's policies and procedures as they may be amended from time to time with respect to the conduct of the Practice's business and to comply with the laws and regulations of any jurisdiction to which Broker may be subject.
PROFESSIONAL'S RIGHTS AND RESPONSIBILITIES. Professional may withdraw the Practice from the market at any time and may reject any offer for any reason whatsoever and shall retain the sole right and privilege of approving the terms of any Potential Transaction. No offer shall be considered binding upon Professional unless the contract is signed by the Professional. Professional represents that he/she has the legal right and all necessary power and authority to sell, either in part or in whole, or to consummate a merger with respect to, the Practice.
CONFIDENTIALITY. Professional and Broker agree to be bound by the confidentiality agreement previously signed by both parties, and attached hereto as Exhibit A (the "Confidentiality Agreement").
INDEPENDENT CONTRACTOR. It is expressly understood and agreed that the relationship between Professional and Broker is that of principal and independent contractor and nothing contained herein is intended to or shall be constructed to constitute or establish any other type of relationship. The parties are not joint venturers or partners and there is no employer/employee relationship between the parties. Neither the Practice nor Professional shall exercise any direction or control over the time or activities of Broker or its employees or associates.
LIMITED AUTHORITY. Broker is not authorized to: (a) make or amend any contract, incur any debt or extend any credit on behalf of the Practice or Professional; (b) alter, waive or modify any of the terms, conditions or limitations of any application for insurance or policy issued; or (c) waive any of Professional's or the Practice's rights or privileges under any agreement made by the Practice or under any of the Practice's policies and procedures. Broker agrees that if Broker obligates the Practice in any manner prohibited by this section, Broker shall be liable to Practice for any loss resulting therefrom, including, but not limited to, costs and attorney fees incurred by the Practice in defending claims asserted by third parties in such cases.
COMPENSATION OF BROKER. As compensation for the services performed by Broker under this Agreement, Professional will pay Broker fees and commissions in accordance with the Schedule of Compensation shown in Exhibit B which is attached hereto and made a part hereof. This commission is Broker's sole compensation from Professional for the services hereunder.
TERM AND TERMINATION. Unless earlier terminated in accordance with the terms and conditions contained herein, the initial term of this Agreement shall commence on the Effective Date and end on the date which is eighteen (18) months after the Effective Date (the "Initial Term"). This Agreement shall automatically renew for consecutive one (1) year terms (each a "Renewal Term"), unless either party delivers written notice to the other party of non-renewal at least thirty (30) days prior to the end of the Initial Term or the then current Renewal Term. The Initial Term and all Renewal Terms are collectively referred to herein as the "Term". Termination shall not effect Broker's right to commissions with respect to business conducted before termination unless Professional terminates this Agreement for cause, in which case no commissions or any other compensation shall be paid or payable. For purposes of this Agreement, "cause" shall mean fraud, malfeasance or material breach of this Agreement not remedied within thirty (30) days of notice.
PROFESSIONAL ADVICE. Professional agrees that in determining the financial soundness of any Interested Party, Professional will rely solely upon Professional's own investigation and evaluation, notwithstanding Broker's assistance in gathering any financial information.
GENERAL PROVISIONS.- All books and records of Broker pertaining to any Potential Transaction and the marketing of the Practice may be subject to inspection by Professional at any reasonable time so long as reasonable prior notification is provided to Broker.
- All materials coming into the possession of Broker bearing the name of Professional or the Practice or provided by him/her/it to Broker shall remain the property of Professional and shall be returned to Professional upon request. Broker shall not make use of any materials supplied for any purpose other than seeking a Potential Transaction hereunder. Broker agrees to surrender all such materials immediately upon request to Professional.
- Broker represents and warrants that it is in existence as of the Effective Date and operating with the proper authority from whatever State or local jurisdiction is required. Broker further represents and warrants that the signatory of this Agreement on behalf of Broker has the full power and authority to bind Broker.
- This Agreement may be altered or amended only in writing by an appropriate amendment to this Agreement, signed by each of the parties.
- Professional shall not be responsible for any overhead expenses incurred by Broker including but not limited to, office rentals, overhead expenses, advertising, travel expenses, and state and local license fees. Professional shall be responsible for reimbursing Broker for any appraisal fees, assessment fees, interview fees or associate placement fees incurred by Broker in marketing the Practice and seeking a Potential Transaction hereunder, provided that, in the event that a Potential Practice is actually consummated, the Practice/Professional shall receive a credit against Broker's commission in an amount equal to the total of such fees paid to Broker during the two (2) year period prior to the consummation of such Potential Transaction, as further described on Exhibit B.
- Failure of either party to enforce or insist upon compliance with any provision of this Agreement at any time shall not be construed as a waiver of its right to enforce or insist upon compliance with such provisions in the future.
- If any court of competent jurisdiction declares any provision or subparagraph of this Agreement invalid, such invalidity shall not affect any other provision or subparagraph, and to that end, the provisions and subparagraphs of this Agreement are deemed severable.
- This Agreement shall not inure to the benefit of any successor in interest of Broker nor may Broker assign any interest under this Agreement without Professional's prior written agreement.
- This Agreement and the Confidentiality Agreement set forth the entire agreement between the parties and it is expressly understood and agreed there are no promises, agreements or understandings other than those contained herein and therein; that all prior agreements and understandings, other than the Confidentiality Agreement, between Professional and Broker are hereby superseded, whether written or oral; and that no officer, employee or other representative of Practice has any authority to obligate Practice by any terms, stipulations or conditions not expressed in this Agreement or the Confidentiality Agreement unless the same be in writing and attached to and made a part of this Agreement.
- Notices under this Agreement shall be given by delivering or mailing a copy to the party entitled to notice. Notice by mail shall be deemed sufficiently given when mailed by certified mail, postage prepaid, addressed to:
To Professional:
Attn:
To Broker: ddsmatch.com, LLC
12800 North Meridian Street
Suite 400
Carmel, Indiana 46033
Attn: Thad Miller - This Agreement shall be construed and interpreted in accordance with, and shall be governed by, the laws of the State of Indiana applying to contracts to be performed entirely within that State without giving effect to the law of conflicts. The parties irrevocably consents to the jurisdiction and venue of the courts sitting in Hamilton County, Indiana for any suits arising out of or relating to this Agreement.
[Signature Page to Follow]
[Signature Page to Exclusive Listing Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
("Professional")
by:
and
ddsmatch.com, LLC
("Broker")
by:
Thaddeus J. Miller
its: Manager
EXHIBIT A
Confidentiality Agreement
EXHIBIT B
Broker Compensation
Under this Agreement, Professional agrees that if the closing of a Potential Transaction occurs prior to the expiration or termination of the Term of the Agreement or for a period of two (2) years thereafter, Professional shall pay to Broker a commission (the "Commission") equal to ten percent (10%) of the total consideration paid in such Potential Transaction. For purposes of this Agreement, "total consideration" shall include without limitation, cash, cash equivalents, the amount of any promissory note or other negotiable instrument and the value of any securities.
Seller shall pay the Commission within five (5) business days of the occurrence of all of the following events:
- Broker procures an Interested Party;
- the execution and delivery by Professional and such Interested Party of a definitive agreement for a Potential Transaction; and
- the closing of the Potential Transaction.
Within ten (10) business days after the end of the Term of this Agreement, Broker will provide Professional a written list of potential Interested Parties (the "List"). If Professional consummates a transaction with any of the Interested Parties on the List at any time after the expiration or termination of this Agreement, notwithstanding any other time limitation contained herein, Professional agrees to pay Broker the Commission in accordance with this
Exhibit B.
As agreed upon by the parties, Professional shall also pay to Broker (during the course of the Potential Transaction but prior to any actual closing) certain fees for services performed by Broker on behalf of or for the benefit of Professional, including but not limited to recruitment, appraisal and assessment fees set forth in Schedule I, attached hereto and incorporated herein ("Fees"). Such Fees are non-refundable, but shall be credited toward the Commission for any closing occurring within two (2) years of the performance of such services and owing of the Fees.
SCHEDULE I
The Partnership Match Process
Step One: Vision Discovery Session $3,500 per selling dentist (incorporating Dr. Charles Blairâ™s Practice Boosters)Goals: Provide comprehensive interview for determination of needs (Emotional and Financial)
Comprehensive review of current practice opportunities using Practice Booster
Identify Transition Options to Meet Needs
Set objectives and implement a plan to meet objectives
Establish relationship through interview and comprehensive analysis
Provide accounting proforma on financial statement of before/after transition
How it will help the client:
Understand the Practice Transition Options
Provide direction to proceed or stay the course.
Step Two: Partnership Match Process $750Goals: Unlimited Kolbe Personality Testing for candidates and seller
Coach, organize and shadow interview process
How will it help the client:
80% of associateships fail. Partnerships are more successful outcome. A third party representative will expose dangers, opportunities and strengths of potential match. Build relationship with ddsmatch.com representative and bring candidates to the potential buyer. This service would be unique in the industry.
Step Three: Practice Evaluation Session $3,500Goals: Determination of Fair Market Practice Value
Identify Market Conditions Relevant to Purchase or sale of a Dental Practice
Identify Limiting Factors in the Value of the practice
How it will help the Client:
Provide realistic and Fair Market Evaluation of a Practice
Inform Client of Current Practice Transition Marketplace
Identification of Practice Dangers, Opportunities and Strengths
Step Four: Vision Alignment Breakthrough (included in Vision Reveal and Match fee)Goals: Finalize candidate
Finalize offer to candidate
Share potential partnership opportunity
Coach both sides toward win-win arrangement
How will it help the client:
Create realistic expectations from both parties
Bring confidence to both parties toward a common goal.
Step Five: Vision Reveal and Match Completion (10% of sale price minus costs already paid) Goals: Finalization and delivery of win-win partnership or sale
Contracts To be reviewed by individual attorneys
Establish Best Practice Transition Options
Oversee communication with clientâ™s advisors
Assist client in securing financing Assist in creation of promissory note
Oversee the closing process
Provide Systems for Successful Post-Transition Relationships
How it will help the client:
Reduction of Time, Cost and Frustrations associated with Process
Realistic Objective-based transition consulting for both Purchaser and Seller
No open ended fee structure that attorneys would promote
Additional services:- Merger if match already located: 10% of sale price
- Buyer Representation (for out of area clients) $4,500
- Associateship placement and documentation $7,000 GP/$9,500 Specialty
- If partnership happens within 2 years, ddsmatch will provide contracts and documentation placement fee will be credited toward practice sale fee.
- Practice Boosters without assessment $1,750