Common use of Employment of Physicians Clause in Contracts

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements in the form of Exhibit 5.1 (the "Employment Agreements") with Physician- ----------- Shareholders, including, without limitation, the initial Physician- Shareholders identified in Exhibit 5.1A. Practice shall not amend the ------------ Employment Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business Manager. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements with Physician-Shareholders, and subject to subparagraph (ii) below, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician who terminates his or her Employment Agreement without Physician Cause (as defined in the Employment Agreement) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for any other material breaches of the Employment Agreements (such damages being collectively referred to herein as the "Business Manager Damages"). (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement by a Physician-Shareholder (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician causing such breach); provided, however, that the determination of whether or not such breach has been cured shall be made by Business Manager in its good faith discretion, and provided further, that Practice shall in no event be permitted to cure any breach that results from a breach by a Physician-Shareholder of any non- competition provision contained in any Employment Agreement.

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements in the form of Exhibit 5.1 (the "Employment Agreements") with Physician- ----------- Shareholders, including, without limitation, the initial Physician- Physician-Shareholders identified in Exhibit 5.1A. 5.1A; provided, however, that the Employment Agreements with any Physician-Shareholders not employed by Practice as of the Effective Date (i.e. any Physician-Shareholders other than the Physician-Shareholders identified in Exhibit 5.1A) shall not be required to contain any liquidated damages or noncompetition buyouts unless Practice determines otherwise; provided further that such liquidated damages provisions shall not be required in any Employment Agreements with the Physician-Shareholders identified in Exhibit 5.1A for periods from and after the Initial Term (as defined in each such Physician-Shareholder's Employment Agreement) it being understood that the provision shall in no way alter the noncompetition provisions set forth in any Physician- Shareholder Employment Agreement. Except as permitted by Section 3.1 of the Employment Agreements, Practice shall not amend the ------------ Employment Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business Manager. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements with Physician-Shareholders, and subject to subparagraph subparagraphs (ii) and (iii) below, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician Physician-Shareholder who terminates his or her Employment Agreement without Physician Cause (as defined in the Employment Agreement) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for any other material breaches of the Employment Agreements (such damages being collectively referred to herein as the "Business Manager Damages"). Business Manager agrees that payment to Business Manager of the liquidated damages collected by Practice in accordance with the terms of the Employment Agreement shall satisfy in full any Business Manager Damages but shall not constitute a buyout or release of the noncompetition and nonsolicitation covenants of the Employment Agreement unless the Physician- Shareholder in fact purchases a release from such covenants as contemplated therein; provided, further, that such purchase shall be allocated in the manner set forth in Section 5.1(a)(iii) below. (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement by a Physician-Shareholder (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician Physician-Shareholder causing such breach); provided, however, that the determination of whether or not such breach has been cured shall be made by Business Manager in its good faith discretion, and provided further, that Practice shall in no event be permitted to cure any breach that results from a breach by a Physician-Shareholder of any non- competition noncompetition provision contained in any his or her Employment Agreement. (iii) In connection with Practice's obligations pursuant to Section 5.1(a)(i) hereof, to the extent Business Manager Damages consist of any payments made by a Physician-Shareholder pursuant to Section 6.5 of the Employment Agreement to procure release from the noncompetition covenants set forth in Article 6 of such Physician-Shareholder's Employment Agreement, then Practice shall only be required to pay Business Manager fifty percent (50%) of such release payment, with Practice retaining the balance. The foregoing retention rights of Practice are limited to the release payments pursuant to Section 6.5 of the Employment Agreement and shall not apply to any other Business Manager Damages payable by Practice to Business Manager pursuant to Section 5.1(a)(i) hereof.

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements in the form of Exhibit 5.1 (the "Employment Agreements") with Physician- ----------- Physician-Shareholders, including, without limitation, the initial Physician- Physician-Shareholders identified in Exhibit 5.1A. Practice shall not amend the ------------ Employment Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business Manager. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements with Physician-Physician- Shareholders, and subject to subparagraph (ii) below, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician who terminates his or her Employment Agreement without Physician Cause (as defined in the Employment Agreement) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for any other material breaches of the Employment Agreements (such damages being collectively referred to herein as the "Business Manager Damages"). (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement by a Physician-Shareholder (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician causing such breach); provided, however, that the determination of whether or not such breach has been cured shall be made by Business Manager in its good faith discretion, and provided further, that Practice shall in no event be permitted to cure any breach that results from a breach by a Physician-Shareholder of any non- competition provision contained in any Employment Agreement.

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements in the form of Exhibit 5.1 (the "Employment Agreements") with Physician- ----------- Shareholders, including, without limitation, the initial Physician- Shareholders identified in Exhibit 5.1A. Practice shall not amend the ------------ Employment Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business Manager. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements with Physician-Shareholders, and subject to subparagraph (ii) below, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician who terminates his or her Employment Agreement without Physician Cause (as defined in the Employment Agreement) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for any other material breaches of the Employment Agreements (such damages being collectively referred to herein as the "Business Manager Damages"). (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement by a Physician-Shareholder (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician causing such breach); provided, however, that the determination of whether or not such breach has been cured shall be made by Business Manager in its good faith discretion, and provided further, that Practice shall in no event be permitted to cure any breach that results from a breach by a Physician-Shareholder of any non- competition provision contained in any Employment Agreement.

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements in the form of Exhibit 5.1 5.1A (the "Employment Agreements") with Physician- ----------- Shareholdersindividual physician Practice-Owners, and Services Agreements with professional or medical service corporation Practice-Owners, including, without limitation, the initial Physician- Shareholders Practice-Owners identified in Exhibit 5.1A. 5.1B. Practice-Owners that are parties to Services Agreements shall maintain employment agreements with their Physician Shareholders in the form of Exhibit 5.1C. Practice shall not amend the ------------ Employment Agreements or the Services Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business Manager. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements or Services Agreements with PhysicianPractice-ShareholdersOwners, and subject to subparagraph (ii) below, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician who terminates his or her Employment Agreement without Physician Cause Practice-Owner (as defined in A) pursuant to Section 4.2 of the Employment Agreements and/or Section 4.2 of the Services Agreement, or (B) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for arising from any other material breaches of the Employment Agreements or Services Agreements or (C) any funds remitted (1) by Physician to Owner-Contractor in accordance with Section 6.5 of the Employment Agreement or (2) by Owner-Contractor to Practice pursuant to Section 6.5 the Services Agreement (such damages being collectively referred to herein as the "Business Manager Damages"). If any Physician shall fail to perform any of the material duties and obligations of a Physician under an Employment Agreement or pursuant to an employment agreement with a Practice-Owner that is a party to a Services Agreement, and Practice fails to enforce vigorously (as determined reasonably and in good faith by the Policy Board) such Employment Agreement or Services Agreement (and associated employment agreement), Business Manager shall have the right, but not the obligation, to enforce the provisions of such Employment Agreement or Services Agreement (and associated employment agreement), and Practice shall assign all of its rights and remedies under such Employment Agreement or Services Agreement (and any associated employment agreement) upon the request of Business Manager. To the extent permitted by law, Practice acknowledges and agrees that Business Manager has third party beneficiary rights to the extent set forth above in each Employment Agreement or Service Agreement. (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement or Services Agreement by a PhysicianPractice-Shareholder Owner (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician Practice-Owner causing such breach); provided, however, that the determination of whether or not such breach has been cured shall be made by Business Manager in its good faith discretion, and provided further, that Practice shall in no event be permitted to cure any breach that results from a breach by a PhysicianPractice-Shareholder Owner of any non- competition provision contained in any Employment Agreement or Services Agreement.

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements in the form of Exhibit 5.1 5.1A (the "Employment Agreements") with Physician- ----------- Shareholdersindividual ------------ physician Practice-Owners, and Services Agreements with professional or medical service corporation Practice- Owners, including, without limitation, the initial Physician- Shareholders Practice-Owners identified in Exhibit 5.1A. 5.1B. Practice-Owners that are parties to Services ------------ Agreements shall maintain employment agreements with their Physician Shareholders in the form of Exhibit 5.1C. Practice shall not amend the ------------ Employment Agreements or the Services Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business Manager. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements or Services Agreements with PhysicianPractice-ShareholdersOwners, and subject to subparagraph (ii) below, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician who terminates his or her Employment Agreement without Physician Cause Practice- Owner (as defined in A) pursuant to Section 4.2 of the Employment Agreements and/or Section 4.2 of the Services Agreement, or (B) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for arising from any other material breaches of the Employment Agreements or Services Agreements or (C) any funds remitted (1) by Physician to Owner-Contractor in accordance with Section 6.5 of the Employment Agreement or (2) by Owner-Contractor to Practice pursuant to Section 6.5 the Services Agreement (such damages being collectively referred to herein as the "Business Manager Damages"). If any Physician shall fail to perform any of the material duties and obligations of a Physician under an Employment Agreement or pursuant to an employment agreement with a Practice-Owner that is a party to a Services Agreement, and Practice fails to enforce vigorously (as determined reasonably and in good faith by the Policy Board) such Employment Agreement or Services Agreement (and associated employment agreement), Business Manager shall have the right, but not the obligation, to enforce the provisions of such Employment Agreement or Services Agreement (and associated employment agreement), and Practice shall assign all of its rights and remedies under such Employment Agreement or Services Agreement (and any associated employment agreement) upon the request of Business Manager. To the extent permitted by law, Practice acknowledges and agrees that Business Manager has third party beneficiary rights to the extent set forth above in each Employment Agreement or Service Agreement. (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement or Services Agreement by a PhysicianPractice-Shareholder Owner (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician Practice-Owner causing such breach); provided, however, that the determination of whether or not such breach has -------- ------- been cured shall be made by Business Manager in its good faith discretion, and provided further, that Practice shall in no event be permitted to cure -------- ------- any breach that results from a breach by a PhysicianPractice-Shareholder Owner of any non- competition provision contained in any Employment Agreement or Services Agreement.

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements in the form of Exhibit 5.1 (the "Employment Agreements") with Physician- ----------- Shareholders, including, without limitation, the initial Physician- Physician-Shareholders identified in Exhibit 5.1A. 5.1A; provided, however, that the Employment ------------ -------- ------- Agreements with any Physician-Shareholders not employed by Practice as of the Effective Date (i.e. any Physician-Shareholders other than the Physician-Shareholders identified in Exhibit 5.1A) shall not be required to ------------ contain any liquidated damages or noncompetition buyouts unless Practice determines otherwise; provided further that such liquidated damages -------- ------- provisions shall not be required in any Employment Agreements with the Physician-Shareholders identified in Exhibit 5.1A for periods from and ------------ after the Initial Term (as defined in each such Physician-Shareholder's Employment Agreement) it being understood that the provision shall in no way alter the noncompetition provisions set forth in any Physician- Shareholder Employment Agreement. Except as permitted by Section 3.1 of the Employment Agreements, Practice shall not amend the ------------ Employment Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business Manager. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements with Physician-Shareholders, and subject to subparagraph subparagraphs (ii) and (iii) below, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician Physician-Shareholder who terminates his or her Employment Agreement without Physician Cause (as defined in the Employment Agreement) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for any other material breaches of the Employment Agreements (such damages being collectively referred to herein as the "Business Manager Damages"). Business Manager agrees that payment to Business Manager of the liquidated damages collected by Practice in accordance with the terms of the Employment Agreement shall satisfy in full any Business Manager Damages but shall not constitute a buyout or release of the noncompetition and nonsolicitation covenants of the Employment Agreement unless the Physician- Shareholder in fact purchases a release from such covenants as contemplated therein; provided, further, that such purchase shall be allocated in the manner set forth in Section 5.1(a)(iii) below. (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement by a Physician-Shareholder (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician Physician-Shareholder causing such breach); provided, however, that the determination of whether or not such breach has been cured shall be made by Business Manager in its good faith discretion, and provided further, that Practice shall in no event be permitted to cure any breach that results from a breach by a Physician-Shareholder of any non- competition noncompetition provision contained in any his or her Employment Agreement. (iii) In connection with Practice's obligations pursuant to Section 5.1(a)(i) hereof, to the extent Business Manager Damages consist of any payments made by a Physician-Shareholder pursuant to Section 6.5 of the Employment Agreement to procure release from the noncompetition covenants set forth in Article 6 of such Physician-Shareholder's Employment Agreement, then Practice shall only be required to pay Business Manager fifty percent (50%) of such release payment, with Practice retaining the balance. The foregoing retention rights of Practice are limited to the release payments pursuant to Section 6.5 of the Employment Agreement and shall not apply to any other Business Manager Damages payable by Practice to Business Manager pursuant to Section 5.1(a)(i) hereof.

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements in the form of Exhibit 5.1 (the "Employment Agreements") with Physician- ----------- Physician-Shareholders, including, without limitation, the initial Physician- Physician-Shareholders identified in Exhibit 5.1A. Practice shall not amend the ------------ Employment Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business Manager. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements with Physician-Shareholders, and subject to subparagraph (ii) below, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician who terminates his or her Employment Agreement without Physician Cause (as defined in the Employment Agreement) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for any other material breaches of the Employment Agreements (such damages being collectively referred to herein as the "Business Manager Damages"). (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement by a Physician-Shareholder (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician causing such breach); provided, however, that the determination of whether or not such breach has been cured shall be made by Business Manager in its good faith discretion, and provided further, that Practice shall in no event be permitted to cure any breach that results from a breach by a Physician-Shareholder of any non- non-competition provision contained in any Employment Agreement. Without limiting the rights of Business Manager set forth herein, and notwithstanding the fact that Business Manager is entitled in limited circumstances to certain damages from Practice which arise from breaches of an Employment Agreement with any Physician-Shareholder, NovaMed shall not be construed as being a third party beneficiary to the Employment Agreement.

Employment of Physicians. (i) Practice shall operate and maintain within the Practice Territory a full-time practice of medicine specializing in the provision of Medical Services, and shall maintain and enforce employment agreements substantially in the form of Exhibit 5.1 (the "Employment Agreements") with Physician- ----------- Physician-Shareholders, including, without limitation, the initial Physician- Physician-Shareholders identified in Exhibit 5.1A. Practice shall not amend the ------------ Employment Agreements in any material manner or waive any material rights of Practice thereunder without the prior written approval of Business ManagerManager Consent. Recognizing that Business Manager would not have entered into this Management Services Agreement but for Practice's covenant to maintain Employment Agreements with Physician-Shareholders, and subject to subparagraph (ii) belowbelow and Section 5.7(f) hereof, Practice shall pay to Business Manager, in addition to the Management Fee, any damages, compensation, payment or settlement received by Practice from a Physician who terminates his or her Employment Agreement without Physician Cause (as defined in the Employment Agreement) or whose Employment Agreement is terminated by Practice for Practice Cause (as defined in the Employment Agreement) or for any other material breaches of the Employment Agreements (such damages being collectively referred to herein as the "Business Manager Damages"). (ii) Notwithstanding the provisions of Section 5.1(a)(i) above, or any other provision to the contrary contained herein, Practice shall have a period of not less than forty-five (45) days following the occurrence of any event described in Section 5.1(a)(i) above that entitles Business Manager to receive Business Manager Damages to take such actions to cure the breach of any Employment Agreement by a Physician-Shareholder (which actions to cure may, without limitation, include retention of additional Physicians to replace the levels of revenue and income previously generated by the Physician causing such breach); provided, however, that the determination of whether or not such breach has been cured shall be made by Business Manager in its good faith reasonable discretion, and provided further, that Practice shall in no event be permitted to cure any breach that results from a breach by a Physician-Physician- Shareholder of any non- non-competition provision contained in any Employment Agreement.