MANAGEMENT AGREEMENT
Between
INTEGRAMED AMERICA, INC.
and
FERTILITY CENTERS OF ILLINOIS, S.C.
THIS MANAGEMENT AGREEMENT, dated February 28, 1997, by and between
IntegraMed America, Inc., a Delaware corporation, with its principal place of
business at Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("INMD") and
Fertility Centers of Illinois, S.C., an Illinois medical corporation, with its
principal place of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000 ("FCI").
RECITALS:
FCI specializes in the treatment of human infertility encompassing the
provision of in vitro fertilization and other assisted reproductive services
("Infertility Services"). All the issued and outstanding shares of capital stock
of FCI are owned by Xxxxx Xxxxxx, M.D., Xxxxx Xxxxxxx, M.D., Xxxxx Xxxxx, M.D.
and Xxxxx Xxxxx, M.D. (collectively referred to as "Physicians" or
"Stockholders").
INMD is in the business of owning certain assets and providing management
and administrative services to medical practices specializing in the provision
of Infertility Services, and furnishing such medical practices with the
necessary facilities, equipment, personnel, supplies and support staff.
FCI desires to obtain the services of INMD in performing such management
and administrative functions, on its behalf and all medical entities in the
United States in which FCI's Stockholders have a financial interest or
affiliation tied to FCI, to permit FCI to devote its efforts on a concentrated
and continuous basis to the rendering of Infertility Services to its patients .
In addition, FCI desires access to capital to fund its growth and
development and INMD desires to provide such capital or access to capital as
provided herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration , FCI hereby agrees
to purchase from INMD
the management and administrative services herein described and INMD agrees to
provide such services on the terms and conditions provided herein.
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. For the purposes of this Agreement, the following
definitions shall apply:
1.1.1 "Assets" shall mean those fixed assets utilized in connection
with the operation of FCI's medical practice, including, but not limited
to, fixed assets and leasehold improvements.
1.1.2 "Adjustments" shall mean adjustments for refunds, discounts,
contractual adjustments, professional courtesies and other activities that
do not generate a collectible fee as reasonably determined by INMD and FCI.
1.1.3 "Base Management Fee" shall mean an annual fee paid by FCI to
INMD in an amount equal to a percentage of FCI's annual Physician and Other
Professional Revenues, and FCI Management Fees. The Base Management Fee
shall cover the cost of management services provided by INMD corporate
staff to FCI, as more specifically described in Section 2.3.
1.1.4 "Cost of Services" shall mean all ordinary and necessary
expenses of FCI and all direct ordinary and necessary operating expenses of
INMD, without xxxx-up, incurred in connection with the management of FCI's
medical practice , as more specifically described in Section 2.1; provided,
however, Costs of Services shall be adjusted for all pass throughs,
including, but not limited to, drug, laboratory, pathology,
anesthesiologist and operating room fees that generate no economic benefits
to FCI.
1.1.5 "Facilities" shall mean the medical office and clinical space of
FCI, including any satellite locations, related businesses and all medical
group business operations of FCI, which are utilized by FCI in its medical
practice.
1.1.6 "Fiscal Year" shall mean the 12-month period beginning January 1
and ending December 31 of each year.
1.1.7 "FCI Management Fees" shall mean all fees, whether received or
accrued, and actually recorded each month, including management fees, and
fees from other operations or affiliations of FCI, including, but not
limited to IVF Illinois, an Illinois corporation and ultrasound revenues by
Physician-Stockholders of FCI.
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1.1.8 "Infertility Services" shall mean the treatment of human
infertility encompassing the provision of in vitro fertilization and other
assisted reproductive services provided by FCI or any Physician Employee
and Other Professional Employee.
1.1.9 "Other Professional Employee" shall mean a non-physician
individual who provides services, including the nurse anesthetists,
physician assistants, nurse practitioners, psychologists, and other such
professional employees who generate professional charges, but shall not
include Technical Employees.
1.1.10 "Physician-Employee" shall mean an individual, including a
Physician-Stockholder, who is an employee of FCI or is otherwise under
contract with FCI to provide professional services to FCI patients and is
duly licensed as a physician in the State of Illinois.
1.1.11 "Physician and Other Professional Revenues" shall mean all
fees, whether received or accrued, and actually recorded each month (net of
Adjustments) by or on behalf of FCI as a result of professional medical
services personally furnished to patients by Physician Employees and Other
Professional Employees and other fees or income earned in their capacity as
professionals, whether rendered in an inpatient or outpatient setting,
including but not limited to, medical director fees or technical fees from
medical ancillary services, consulting fees and ultrasound fees from
businesses owned or operated by Physician-Stockholders. Physician and Other
Professional Revenues shall not include board attendance fees and other
compensation in connection with board memberships; provided, the
compensation does not exceed $5,000 in the aggregate, annually, per
Physician-Stockholder.
1.1.12 "Physician-Stockholder" shall mean a Physician and any future
physician duly licensed to practice medicine in Illinois who becomes a
stockholder of FCI.
1.1.13 "Revenues" shall mean the sum of all Physician and Other
Professional Revenues, and FCI Management Fees; provided, however, Revenues
shall be adjusted for pass throughs, as provided for in Section 1.1.11,
that generate no economic benefit to FCI.
1.1.14 "Technical Employees" shall mean technicians such as
embryologists and other laboratory personnel, ultrasonographers and
phlebotomist who provide services to FCI. All Technical Employees shall be
INMD Employees or independent contractors.
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ARTICLE 2
COST OF SERVICES AND BASE MANAGEMENT FEE
2.1 "Cost of Services" (as defined in Section 1.1.4) includes without
limitation, the following costs and expenses, whether incurred by INMD or FCI:
2.1.1 Salaries and fringe benefits of all employees of INMD working
directly in the management, operation or administration
(including, without limitation, Other Professional Employees and
Technical Employees) providing services at FCI, along with payroll
taxes or all other taxes and charges now or hereafter applicable
to such personnel, and services of independent contractors;
2.1.2 Expenses incurred in the recruitment of additional physicians for
FCI, including, but not limited to employment agency fees,
relocation and interviewing expenses and any actual out-of-pocket
expenses of INMD personnel in connection with such recruitment
effort;
2.1.3 Direct marketing expenses of FCI, such as direct costs of printing
marketing materials prepared by INMD;
2.1.4 Any sales and use taxes assessed against FCI related to the
operation of FCI's medical practice;
2.1.5 Lease payments, depreciation expense (determined according to
GAAP), taxes and interest directly relating to the Facilities and
equipment, and other expenses of the Facilities described in
Section 3.2 below;
2.1.6 Legal fees paid by INMD or FCI to outside counsel in connection
with matters specific to the operation of FCI such as regulatory
approvals required as a result of the parties entering into this
Agreement; provided however, legal fees incurred by the parties
hereto as a result of a dispute between the parties shall not be
considered a Cost of Services;
2.1.7 Fringe benefits provided to Physician-Employees;
2.1.8 All insurance necessary to operate FCI including fire, theft,
general liability and malpractice insurance for
Physician-Employees of the FCI;
2.1.9 Professional licensure fees and board certification fees of
Physician Employees and Other Professional-Employees rendering
Infertility Services on behalf of FCI;
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2.1.10 Membership in professional associations and continuing
professional education for Physician Employees and Other
Professional Employees;
2.1.11 Quality Assurance Program described in Section 3.7 herein;
2.1.12 Cost of filing fictitious name permits pursuant to this Agreement;
2.1.13 Cost of supplies, medical and administrative, and all direct
general and administrative expenses, including but not limited to
travel and entertainment expenses and car allowances, relative to
FCI; and
2.1.14 Such other costs and expenses directly incurred by INMD or FCI
necessary for the management or operation of FCI.
2.2 Notwithstanding anything to the contrary contained herein, Cost of
Services shall not include costs of the following:
2.2.1 Costs or expenses not included in the annual budget prepared by
INMD pursuant to Section 3.4 herein, unless approved by FCI;
2.2.2 Any INMD overhead charges;
2.2.3 Any federal or state income taxes of FCI or INMD other than as
provided above; and
2.25 The Base Management Fee and the Additional Management Fee.
2.3 The "Base Management Fee" and the "Additional Management Fee" described
in Article 6 of this Agreement shall constitute INMD's sole compensation for all
indirect costs of INMD including all legal, accounting, financial, marketing,
management and administrative assistance provided by INMD corporate and regional
staff which aren't provided for in Section 2.1.
ARTICLE 3
DUTIES AND RESPONSIBILITIES OF INMD
3.1 MANAGEMENT SERVICES AND ADMINISTRATION.
3.1.1 FCI hereby appoints INMD as FCI's sole and exclusive manager and
administrator of all of its day-to-day business functions and grants INMD
all the necessary authority to carry out, with FCI's advice and consent,
its duties and responsibilities pursuant to the terms of this Agreement to
provide management and administrative services (the
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"Management Services"). Physician-Employees of FCI and only
Physician-Employees of FCI will perform the medical functions of its
practice. INMD will have no authority, directly or indirectly, to perform,
and will not perform, any medical function. To the extent that they assist
FCI in performing medical functions, all Technical Employees provided by
INMD shall be subject to the professional supervision of FCI .
3.1.2 INMD will, on behalf of FCI, xxxx patients and collect
professional fees for Infertility Services rendered by FCI at the
Facilities, outside the Facilities for FCI's hospitalized patients, and for
all other Infertility Services rendered by any Physician Employee or Other
Professional Employee. FCI hereby appoints INMD for the term hereof to be
its true and lawful attorney-in-fact, for the following purposes: (i) to
xxxx patients in FCI's name and on its behalf; (ii) to collect accounts
receivable resulting from such billing in FCI's name and on its behalf;
(iii) to receive payments from insurance companies, prepayments received
from health care plans, and all other third-party payors; (iv) to take
possession of and endorse in the name of FCI (and/or in the name of any
Physician Employee or Other Professional Employee rendering Infertility
Services to patients of FCI) any notes, checks, money orders, and other
instruments received in payment of accounts receivable; and (v) to initiate
the institution of legal proceedings in the name of FCI , with FCI's advice
and consent, to collect any accounts and monies owed to FCI, to enforce the
rights of FCI as creditor under any contract or in connection with the
rendering of any service, and to contest adjustments and denials by
governmental agencies (or its fiscal intermediaries) as third-party payors.
3.1.3 INMD will provide the administrative services function of
supervising and maintaining (on behalf of FCI) all files and records
relating to the operations of the Facilities, including but not limited to
accounting and billing records, patient medical records, and collection
records. Patient medical records shall at all times be and remain the
property of FCI and shall be located at the Facilities and be readily
accessible for patient care. INMD's management of all files and records
shall comply with all applicable state and federal laws and regulations,
including without limitation, those pertaining to confidentiality of
patient records. The medical records of each patient shall be expressly
deemed confidential and shall not be made available to any third party
except in compliance with all applicable laws, rules and regulations. INMD
shall have access to such records in order to provide the Management
Services hereunder, to perform billing functions, and to prepare for the
defense of any lawsuit in which those records may be relevant. The
obligation to maintain the confidentiality of such records shall survive
termination of this Agreement. FCI shall have unrestricted access to all of
its records at all times.
3.1.4 INMD will supply to FCI all reasonably necessary clerical,
accounting, bookkeeping and computer services, printing, postage and
duplication services, medical transcribing services, and any other
necessary or appropriate administrative services reasonably necessary for
the efficient operation of FCI's medical practice at the Facilities.
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3.1.5 Subject to FCI's prior approval, INMD shall design and implement
an appropriate marketing and public relations program on behalf of FCI,
with appropriate emphasis on public awareness of the availability of
Infertility Services from FCI. The public relations program shall be
conducted in compliance with applicable laws and regulations governing
advertising by the medical profession. FCI shall approve all advertising
and marketing materials prior to use.
3.1.6 INMD will assist FCI in recruiting additional physicians,
including such administrative functions as advertising for and identifying
potential candidates, checking credentials, and arranging interviews;
provided, however, FCI shall interview and make the ultimate decision as to
the suitability of any physician to become associated with FCI All
physicians recruited by INMD and accepted by FCI shall be employees of or
independent contractors to FCI.
3.1.7 INMD will assist FCI in negotiating any managed care contracts
to which FCI desires to become a party. INMD will provide administration
assistance to FCI in fulfilling its obligations under any such contract.
3.1.8 INMD will arrange for legal and accounting services as may be
reasonably required in the ordinary course of FCI's operation, including
the cost of enforcing any physician contract containing restrictive
covenants. Nothing contained herein is intended to authorize INMD to settle
any claim made by or against FCI.
3.1.9 INMD will negotiate for and cause premiums to be paid with
respect to the insurance provided for in Article 10.
3.1.10 INMD will take such other reasonable actions to collect fees
and pay expenses of the Facilities in a timely manner as are deemed
reasonably necessary to facilitate the operation of FCI's medical practice
at the Facilities.
3.2 FACILITIES. INMD will provide the Facilities necessary for the
operation of FCI's medical practice, as set forth in Exhibit 3.2 hereto,
including but not limited to, the use of the Facilities, all repairs,
maintenance and improvements thereto, utility (telephone, electric, gas, water)
services, customary janitorial services, refuse disposal and all other services
reasonably necessary in conducting the Facilities' physical operations. INMD
will provide for the cleanliness of the Facilities, and timely maintenance and
cleanliness of the equipment, furniture and furnishings located therein. INMD
will consult with FCI regarding the condition, use and needs for the Facilities,
equipment, services and improvements thereto. FCI shall have the right to review
all proposed leases for office space and INMD shall consult with FCI with
respect to the terms of such leases and use its best efforts to ensure that the
leases provide for reason assignment. Additionally, INMD shall use its best
efforts to ensure that equipment leases provide for reasonable assignment. INMD
shall have no right to close any Facility without the advice and consent of FCI.
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3.3 EXECUTIVE DIRECTOR AND OTHER PERSONNEL.
3.3.1 EXECUTIVE DIRECTOR. Subject to the agreement and approval of
FCI, INMD will hire and appoint an Executive Director to manage and administer
all of the day-to-day business functions of the Facilities and determine the
salary and fringe benefits paid to the Executive Director. At the direction,
supervision and control of INMD, the Executive Director, subject to the terms of
this Agreement, will implement the policies agreed upon by INMD and FCI and will
generally perform the administrative duties assigned to the Executive Director
by INMD.
3.3.2 PERSONNEL. INMD will provide non-professional support personnel
and administrative personnel, clerical, secretarial, bookkeeping and collection
personnel reasonably necessary for the efficient operation of FCI at the
Facilities. Such personnel will be under the direction, supervision and control
of INMD, with Technical Employees and Other Professional Employees subject to
the professional supervision of FCI. If FCI is dissatisfied with the services of
any person delivering non-professional services, FCI will consult with INMD.
INMD shall in good faith determine whether the employment of that employee
warrants termination. INMD's obligations to utilize non-professional personnel
will be governed by the overriding principle and goal of facilitating the FCI's
provision of high quality medical care and laboratory services. INMD will make
every effort to honor the specific requests of FCI with regard to the assignment
of INMD's employees, including the Executive Director.
3.4 FINANCIAL PLANNING AND GOALS. INMD will prepare, for the approval of
FCI, an annual capital and operating budget (the "Budget") reflecting the
anticipated revenues and expenses, sources and uses of capital for growth of
FCI's practice and for the provision of Infertility Services at the Facilities.
INMD will present the Budget to FCI for its approval at least thirty (30) days
prior to the commencement of the Fiscal Year. INMD will indicate the targeted
profit margin for FCI's practice at the Facilities which will be reflected in
the Budget. If the parties can not agree on the Budget for any Fiscal Year, the
Budget for the preceding Fiscal Year will serve as the Budget until such time as
the dispute can be resolved.
3.5 AUDITS AND STATEMENTS. INMD will prepare annual financial statements
for operations of FCI at the Facilities within ninety (90) days of the close of
the Fiscal Year. INMD shall prepare monthly financial statements containing a
balance sheet and statement of operations, which shall be delivered to FCI
within thirty (30) days after the close of each calendar month.
3.6 TAX PLANNING AND TAX RETURNS. INMD will not be responsible for any tax
planning or tax return preparation for FCI, but will provide support
documentation in connection with the same. Such support documentation will not
be destroyed without FCI's consent.
3.7 INVENTORY AND SUPPLIES. INMD shall order and purchase inventory and
supplies, and such other materials which are requested by FCI to enable FCI to
deliver Infertility Services in a cost-effective manner.
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3.8 QUALITY IMPROVEMENT. INMD shall assist FCI in fulfilling its
obligations to maintain a Quality Improvement Program and in meeting the goals
and standards of such program.
3.9 NEW PHYSICIAN SUBSDY. INMD agrees to assist FCI with the initial salary
component of any new Physician-Employee hired by FCI, on a case by case basis.
ARTICLE 4
DUTIES AND RESPONSIBILITIES OF FCI
4.1 PROFESSIONAL SERVICES. FCI shall provide Infertility Services to
patients in compliance at all times with ethical standards, laws and regulations
applying to the practice of medicine in the State of Illinois. FCI shall ensure
that each Physician-Employee, Other Professional Employee and any other
professional provider associated with FCI is duly licensed to provide the
Infertility Services being rendered within the scope of such provider's
practice. In addition, FCI shall require each Physician-Employee to maintain a
DEA number and appropriate medical staff privileges as determined by FCI during
the term of this Agreement. In the event that any disciplinary actions or
medical malpractice actions are initiated against any Physician-Stockholder,
Physician-Employee or other professional provider, FCI shall promptly inform
the Executive Director and provide the underlying facts and circumstances of
such action.
4.2 MEDICAL PRACTICE. FCI shall use and occupy the Facilities exclusively
for the purpose of providing Infertility Services and shall comply with all
applicable laws and regulations and all applicable standards of medical care,
including, but not limited to, those established by the American Society of
Reproductive Medicine. The medical practice conducted at the Facilities shall be
conducted solely by Physician-Employees employed by or serving as independent
contractors to FCI, and Other Professional Employees. No other physician or
medical practitioner shall be permitted to use or occupy the Facilities without
the prior written consent of INMD, except in the case of a medical emergency, in
which event, notification shall be provided to INMD as soon after such use or
occupancy as possible.
4.3 EMPLOYMENT OF PHYSICIAN AND OTHER PROFESSIONAL EMPLOYEES. In the event
FCI shall determine that additional physicians are necessary, FCI shall
undertake and use its best efforts to locate physicians who, in FCI's judgment,
possess the credentials and expertise necessary to enable such physician
candidates to become affiliated with FCI for the purpose of providing
Infertility Services. FCI shall cause each Physician-Employee to enter into an
employment agreement with FCI in the form attached hereto as Exhibit 4.3 (A) if
the Physician-Employee is a shareholder or in the form of Exhibit 4.3(B) if the
Physician-Employee is not a shareholder, or such other form as is mutually
acceptable to FCI and INMD. Physicians shall also sign, and shall require each
shareholder to sign an Acknowledgment of Personal Responsibility in the form
attached hereto as Exhibit (C), unless this requirement is waived by INMD. FCI
covenants that it will not employ any physician unless the physician shall sign
such employment agreement before employment. FCI shall have complete control of
and responsibility for the hiring, compensation, supervision,
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evaluation and termination of its Physician Employees and Other Professional
Employees, although at the request of FCI, INMD shall consult with FCI
respecting such matters.
4.4 CONTINUING MEDICAL EDUCATION . FCI shall require its Physician
Employees and Other Professional Employees to participate in such continuing
medical education as FCI deems to be reasonably necessary for such physicians or
Other Professional Employees to remain current in the provision of Infertility
Services.
4.5 PROFESSIONAL INSURANCE ELIGIBILITY. FCI shall cooperate in the
obtaining and retaining of professional liability insurance by assuring that its
Physician Employees and Other Professional Employees are insurable and
participating in an on-going risk management program.
4.6 ARRANGEMENS WITH OTHER ENTITIES. FCI physicians are the sole providers
of physician services to IVF Illinois, an Illinois corporation, that in turn,
provides in vitro fertilization surgical procedures to patients of FCI. Revenues
from such services to IVF Illinois shall be accounted for and included in the
Revenues of FCI.
4.7 IVF ILLINOIS OWNERSHIP INTEREST. Each Physician or Physician-controlled
corporation having an ownership interest in IVF Illinois will on or before the
Closing Date transfer such ownership interest in IVF Illinois to FCI.
4.8 OTHER BUSINESSES. Each of Drs. Xxxxxxx, Xxxxx and Xxxxx have ownership
interests in other businesses that are affiliated with FCI. These entities,
Fertility and Reproductive Endocrinology Associates, S.C., owned by Xxxxx
Xxxxxxx, M.D.; F.R.E.A. Ultrasound Services, S.C., owned by Xxxxx Xxxxxxx, M.D.
and Xxxxxxx Xxxxxxx, his wife; Fertility and Reproductive Medicine Associates,
S.C., owned by Xxxxx Xxxxx, M.D.; and, Xxxxx Xxxxx, M.D., S.C., owned by Xxxxx
Xxxxx, M.D. will as of the Closing Date, cease delivery of clinical and medical
services and assign to FCI all contracts for such services, and will cease
generating Revenues as herein defined.
ARTICLE 5
LICENSE OF INMD NAME
5.1 GRANT OF LICENSE. INMD hereby grants to FCI a revocable and
non-assignable license for the term of this Agreement to use the names
REPRODUCTIVE SCIENCE CENTER, FERTILITY CENTERS OF ILLINOIS and any other service
names, trademark names and logos of INMD (the "Trade Names") in conjunction with
the provision of Infertility Services by FCI at the Facilities. Notwithstanding
the License granted to FCI hereunder, INMD retains the absolute right to use and
license the Trade Names to others.
5.2 FICTITIOUS NAME PERMIT. If necessary, FCI shall file or cause to be
filed an original, amended or renewal application with an appropriate regulatory
agency to obtain a fictitious
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name permit which allows FCI to practice at the Facilities under the Trade Names
and shall take any other actions reasonably necessary to procure protection of
or protect INMD's rights to the Trade Names. INMD shall cooperate and assist FCI
in obtaining any such original, amended or renewal fictitious name permit.
5.3 RIGHTS OF INMD. FCI acknowledges INMD's exclusive right, ownership,
title and interest in and to the Trade Names and will not at any time do or
cause to be done any act or thing contesting or in any way impairing or tending
to impair any part of such right, title and interest. In connection with the use
of the Trade Names, FCI shall not in any manner represent that it has any
ownership interest in the Trade Names, and FCI's use shall not create in FCI's
favor any right, title, or interest in or to the Trade Names other than the
right of use granted hereunder, and all such uses by FCI shall inure to the
benefit of INMD. FCI shall notify INMD immediately upon becoming aware of any
claim, suit or other action brought against it for use of the Trade Names or the
unauthorized use of the Trade Names by a third party. FCI shall not take any
other action to protect the Trade Names without the prior written consent of
INMD. INMD, if it so desires, may commence or prosecute any claim or suit in its
own name or in the name of FCI or join FCI as a party thereto. FCI shall not
have any rights against INMD for damages or other remedy by reason of any
determination of INMD not to act or by reason of any settlement to which INMD
may agree with respect to any alleged infringements, imitations or unauthorized
use by others of the Trade Names, nor shall any such determination of INMD or
such settlement by INMD affect the validity or enforceability of this Agreement.
5.4 RIGHTS UPON TERMINATION.
5.4.1 Upon termination of this Agreement, FCI shall: (i) within 30
days of the termination, cease using the Trade Names in all respects and
refrain from making any reference on its letterhead or other
publicly-disseminated information or material to its former relationship
with INMD; and (ii) take any and all actions required to make the Trade
Names available for use by any other person or entity designated by INMD.
5.4.2 FCI's failure (except as otherwise provided herein) to cease
using the Trade Names at the termination or expiration of this Agreement
will result in immediate and irreparable damage to INMD and to the rights
of any licensee of INMD. There is no adequate remedy at law for such
failure. In the event of such failure, INMD shall be entitled to equitable
relief by way of injunctive relief and such other relief as any court with
jurisdiction may deem just and proper. Additionally, pending such a hearing
and the decision on the application for such permanent injunction, INMD
shall be entitled to a temporary restraining order, without prejudice to
any other remedy available to INMD. All such remedies hereunder shall be at
the expense of FCI and shall not be a Cost of Services.
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ARTICLE 6
FINANCIAL ARRANGEMENTS
6.1 SERVICE FEES. The compensation set forth in this Article 6 is being
paid to INMD in consideration of the substantial commitment made and services to
be rendered by INMD hereunder and is fair and reasonable. INMD shall be paid the
following amounts (collectively "Service Fees"):
6.1.1 an amount reflecting all Cost of Services (whether incurred by
INMD or FCI) paid or accrued by INMD pursuant to the terms of this
Agreement;
6.1.3. during each year of this Agreement, a Base Management Fee of an
amount equal to six percent (6%) of Revenues; and
6.1.4 an Additional Management Fee in accordance with the following
table:
Years 1 through 5 of this Agreement
Costs of Services plus the Base
Management Fee as a % of Revenues Additional Management Fee
--------------------------------- -------------------------
50% and Below 10% of Revenues
51% to 60% 8% of Revenues
61% to 70% 6% of Revenues
71% to 80% 4% of Revenues
81% or More 0% of Revenues
Years 6 through 20 of this Agreement
50% and Below 12% of Revenues
51% to 60% 10% of Revenues
61% to 70% 7% of Revenues
71% to 80% 5% of Revenues
81% or More 0% of Revenues
6.2 ACCOUNTS RECEIVABLE. On or before the 15th business day of each month,
INMD shall reconcile the accounts receivable of FCI arising during the previous
calendar month. Accounts receivable shall be defined as all receivables recorded
each month (net of Adjustments) on the books of the FCI INMD shall transfer or
pay such amount to FCI equal to the accounts receivable less Service Fees. INMD
shall, in addition, transfer such portion of the Services Fees necessary to pay
such portion of the Cost of Services which are costs and expenses of FCI, as
described in Section 2.1 above. FCI shall cooperate with INMD and execute all
necessary
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documents in connection with the assignment of such accounts receivable to INMD
or at INMD's option, to its lenders. All collections in respect of such accounts
receivable shall be deposited in a bank account at a bank designated by INMD. To
the extent FCI comes into possession of any payments in respect of such accounts
receivable, FCI shall direct such payments to INMD for deposit in bank accounts
designated by INMD.
6.3 ADVANCES. In addition to the purchase of the Accounts Receivable set
forth in 6.2 above, INMD agrees to advance funds to FCI, to meet Cost of
Services, provide working capital or fund mergers with other physicians or
physician groups into FCI ("Advance"). Such Advances shall be made only with the
consent of FCI.
6.3.1 Any Advance hereunder shall be a debt owed to INMD by FCI and
shall have payment priority over any distribution to
Physician-Shareholders. Any Advance shall be repaid from any distribution
to Physician-Stockholders either as a lump sum payment, within 60 days
after the advance or installments as agreed to by INMD.
6.3.2 Interest expense will be charged on an Advance and will be
computed at the Prime Rate used by INMD's primary bank in effect at the
time of the Advance. Advances shall be evidenced by a security agreement in
the form of Exhibit 6.3.2, giving INMD a collateral interest in all
accounts receivable of FCI and distributions to FCI Shareholders.
ARTICLE 7
EXCLUSIVE MANAGEMENT RIGHT AND TERM
7.1 INMD agrees to pay FCI the sum of $8 Million ("Management Fee") for the
exclusive right to manage FCI during the term of this Agreement (the "Exclusive
Management Right"), which amount shall be paid, as follows, on a mutually agreed
date which is within 30 days (the "Closing Date") of completion of an offering
of INMD securities pursuant to which INMD receives at least $6.0 million or
more, net (the " Offering"):
7.1.1 $2.0 Million in INMD unregistered Common Stock for which FCI and
its assigns will have piggyback rights subject to underwriter approval. (
If INMD proposes to sell any shares of Common Stock in a public offering
that is registered under the Securities Act of 1933, then FCI shall have
the right to include in such offering all or a portion of the shares of
INMD Common Stock issued to FCI in this transaction [so called "piggyback
rights"], provided, however, that if the offering is an underwritten public
offering, FCI's piggyback rights would be subject to "cut-back" to the
extent determined bythe managing underwriters.) The number of INMD shares
("Shares") to be issued will be determined based upon the average closing
price of INMD's Common Stock for the 10 day-period prior to the third
business day before the Closing Date; provided, however, that in no event
will the price per share exceed $3.25 or be less than $1.75 for purposes of
calculating the number of shares
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to be issued to FCI. For a period of two years following the Closing, FCI
and its assignees will give Xxxxxxx Xxxxx, President and Chief Executive
Officer of INMD or his designee, voting proxy as to the Shares with respect
to (i) election of Directors or any amendment to INMD's Certificate of
Incorporation affecting Directors and (ii) any change in stock options for
management and Directors; and
7.1.2 $6.0 Million in certified funds.
7.2 The term of this Agreement shall begin on the Closing Date and shall
expire twenty (20) years after such date unless earlier terminated pursuant to
Article 8, below. This Agreement may be renewed by either party, if within the
period of 180 days prior to the expiration date one party gives notice to the
other of its intention to continue this Agreement under the same terms and
conditions as set forth herein or under such different terms and conditions as
particularly set forth in the written notice and further providing that the
other party has 30 days from the date of notice to accept, reject or modify the
offer. If within 30 days, the other party does not respond or by written notice
accepts, this Agreement shall continue for an additional 10 years under the
terms and conditions as provided in the notice.
7.3 The obligations of INMD hereunder, including its obligations under
Section 7.1, are subject to:
7.3.1 INMD receiving at least $6.0 million or more, net, in the
Offering. INMD shall communicate weekly with FCI concerning the status of the
Offering;
7.3.2 Satisfactory completion by INMD of its due diligence
investigation regarding this proposed Agreement;
7.3.3 Negotiation and execution of a mutually satisfactory asset
purchase agreement, containing, among other things, representations, warranties,
covenants, indemnities and conditions, pursuant to which INMD will acquire
certain assets from FCI; and
7.3.4 Delivery by FCI of executed Physician Employment Agreements in
the form of Exhibit 4.3 hereto for each Physician-Stockholder and each
Physician-Employee.
7.4 FCI shall cooperate with INMD in connection with the Offering,
including making available all required financial and business information. In
connection therewith, FCI will give access to its employees, books and records
and other documentation as INMD, its legal, accounting and other representatives
may require to accomplish the Offering.
7.5 If INMD has not satisfied the contingency set forth in Section 7.3.1
within six (6) months of execution of this Agreement, this Agreement may be
voided by either party by giving written notice by certified mail, return
receipt requested or overnight express delivery service.
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7.6 Within 15 days after the Closing Date, INMD shall cause a
Physician-Stockholder designated by FCI (the "FCI Director") to be appointed to
INMD's Board of Directors. At the next annual meeting of shareholders at which
the FCI Director is up for re-election, INMD shall use its best efforts to cause
the FCI Director to be nominated for re-election and cause Xxxxxxx Xxxxx to vote
the Shares in favor of such re-election.
ARTICLE 8
TERMINATION OF THE AGREEMENT
8.1 TERMINATION
This Agreement may be terminated by either party in the event of the
following:
8.1.1 INSOLVENCY. If a receiver, liquidator or trustee of any party
shall be appointed by court order, or a petition to reorganize shall be filed
against any party under any bankruptcy, reorganization or insolvency law, and
shall not be dismissed within 90 days, or any party shall file a voluntary
petition in bankruptcy or make assignment for the benefit of creditors, then
either of the other parties may terminate this Agreement upon 10 days prior
written notice to the other parties.
8.1.2 MATERIAL BREACH. If either party shall materially breach its
obligations hereunder, then either of the other parties may terminate this
Agreement by providing 30 days prior written notice to the breaching party
detailing the nature of the breach, provided that the breaching party shall not
have cured the breach within such 30 day period, or, with respect to breaches
that are not curable within such 30 day period, shall not have commenced to cure
such breach within such 30 day period and thereafter shall not have cured the
breach with the exercise of due diligence.
8.1.3 ILLEGALITY. Any party may terminate this Agreement immediately
upon receipt of notification by any local, state or federal agency or court of
competent jurisdiction that the conduct contemplated by this Agreement is
forbidden by law; except that this Agreement shall not terminate during such
period of time as to any party which contests such notification in good faith
and the conduct contemplated by this Agreement is allowed to continue during
such contest. If any governing regulatory agency asserts that the services
provided by INMD under this Agreement are unlawful or that the practice of
medicine by FCI as contemplated by this Agreement requires a certificate of
need, and any such assertion is not contested (or if contested, the agency's
assertion is found to be correct by a court of competent jurisdiction and no
appeal is taken, or if any appeals are taken and the same are unsuccessful),
this Agreement shall thereupon terminate with the same force as if such
termination date was the date originally specified in this Agreement as the date
of final expiration of the terms of this Agreement.
8.2 TERMINATION BY INMD FOR PROFESSIONAL DISCIPLINARY ACTIONS. FCI shall be
obligated to suspend a physician whose authorization to practice medicine is
suspended, revoked
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or not renewed. INMD may terminate this Agreement upon 10 days prior written
notice to FCI if a Physician's authorization to practice medicine is suspended,
revoked or not renewed and FCI has failed to suspend such physician; provided,
however, such action may not be taken until FCI has been given 30 days to
resolve such physician's authorization to practice medicine. FCI shall notify
INMD within five (5) days of a notice that a physician's authorization to
practice medicine is suspended, revoked or not renewed or that formal
disciplinary action has been taken against a physician which could reasonably
lead to a suspension, revocation or non-renewal of a physician's license.
ARTICLE 9
PURCHASE OF ASSETS - OBLIGATIONS AND OPTIONS
9.1 TERMINATION BY INMD. If INMD terminates this Agreement due to the
insolvency of FCI (Section 8.1.1), for a material breach by FCI (Section 8.1.2),
or FCI fails to suspend a physician whose license is suspended, revoked or not
renewed (Section 8.2), FCI agrees, within 90 days of the date of termination of
this Agreement, at INMD's option, to purchase from INMD the FCI Assets as set
forth in Sections 9.1.1 and 9.1.3 below.
9.1.1 The purchase price of the FCI Assets will be the net book value
determined in accordance with GAAP, consistently applied, as at the date of
the termination.
9.1.2 In addition to purchasing the FCI Assets pursuant to Section
9.1, FCI shall pay INMD 100% of the preceding 12-months' revenues over $10
Million and any and all outstanding unpaid Advances.
9.1.3 In addition to the obligations set forth in Sections 9.1 and
9.2, during the first 5 years of this Agreement FCI shall repay INMD such
portion of the Exclusive Management Fee in excess of an amount determined
by multiplying the number of years the Management Agreement has been in
effect rounded off to the nearest quarter of the year by $1.6 million
("Earned Amount"). The Earned Amount is then deducted from the $8.0 Million
FCI actually received from INMD for the Exclusive Management Right. Any
repayment may be made in the same proportion of INMD Common Stock and cash
which was received under Section 7.1, with the INMD Common Stock price per
share, for purposes of the repayment, being the same as the price per share
that existed when FCI received the INMD Common Stock from INMD. FCI shall
be entitled to a credit under this Section 9.1.3 in an amount equal to
payment received by INMD as a result of Section 3 certain Personal
Responsibility Agreements among INMD, FCI and FCI's Physician-Stockholders
dated February 28, 1997.
9.1.4 If a purchase is completed under this Section 9.1, FCI shall
assume all leases for offices and equipment used directly for the
management and operation of FCI's
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business and may hire such employees from INMD as it determines are
necessary to operate the medical practice and business.
9.2 TERMINATION BY FCI In the event this Agreement is terminated by FCI as
a result of the insolvency of INMD (8.1.1) or material breach by INMD (8.1.2),
INMD agrees, within 90 days of the date of termination, at FCI option, to sell
to FCI the FCI Assets as set forth in Sections 9.1.1, to 9.1.3 together with
leasehold improvements.
9.2.1 If a termination occurs under this Section 9.2, FCI shall assume
all leases for offices and equipment used directly for the management and
operation of FCI's business and may hire such employees from INMD as it
determines are necessary to operate the medical practice and business.
9.2.2 In the event FCI exercise the option set forth in this Section
9.2, closing shall occur within 90 days of the date the option is
exercised. In the event FCI does not exercise the option within 90 days of
termination, FCI shall have relinquished its right and interest to the FCI
Assets and INMD shall be free to use or dispose of the FCI Assets as it
determines with neither party having any further obligations to the other.
9.3 TRANSFER OF OWNERSHIP
Upon receipt of payment of the purchase price and other payments due, INMD
shall transfer ownership and possession of the FCI Assets, and assign all right,
title and interest in and to and obligations under the Lease(s) to FCI and
return to FCI all security deposits. FCI shall have the option of receiving full
credit on the purchase price for all liens, encumbrances or security interest,
or of having INMD transfer ownership of the FCI Assets free and clear of all
liens, encumbrances or security interests thereon.
ARTICLE 10
INSURANCE
10.1 INMD shall carry professional liability insurance, covering itself and
its employees providing services under this Agreement in the minimum amount of
$1 million per incident, $3 million in the aggregate, at its own expense. INMD
shall also carry a policy of public liability and property damage insurance with
respect to the Facilities under which the insurer agrees to indemnify INMD
against all cost, expense and/or liability arising out of or based upon any and
all claims, accidents, injuries and damages customarily included within the
coverage of such policies of insurance available for INMD. The minimum limits of
liability of such insurance shall be $1 million combined single limit covering
bodily injury and property damage. If possible under the terms of the insurance
coverage, FCI shall be named as additional insureds on the INMD's public
liability and
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property damage insurance policies. Evidence of such policies shall be presented
to FCI within thirty (30) days after the coverage is effected.
10.2 INMD shall use its best efforts to cause FCI to be made an additional
insured under INMD's professional liability coverage; provided, however,
conditions for being made an additional insured shall be (i) FCI utilizing
patient informed consent forms supplied by INMD and (ii) FCI complying with
requirements of INMD's insurance company. A Certificate of Insurance evidencing
such policies shall be presented to FCI within thirty (30) days after FCI being
named an additional insured. If FCI isn't made an insured, FCI shall carry
professional liability insurance covering FCI and FCI's employees in the amount
of $1 million per incident, $3 million in the aggregate. INMD shall be made an
additional insured under such coverage and Certificates of Insurance evidencing
such policies and additional insured status shall be presented to INMD within
thirty (30) days after such coverage is effected.
10.3 FCI and INMD shall provide written notice to the other at least ten
(10) days in advance of the effective date of any reduction, cancellation or
termination of the insurance required to be carried by each hereunder.
ARTICLE 11
MISCELLANEOUS
11.1 INDEPENDENT CONTRACTOR. INMD and FCI are independent contracting
parties. In this regard, the parties agree that:
11.1.1 The relationship between INMD and FCI is that of an independent
supplier of non-medical services and a medical practice, respectively, and,
unless otherwise provided herein, nothing in this Agreement shall be
construed to create a principal-agent, employer-employee, or master-servant
relationship between INMD and FCI;
11.1.2 Notwithstanding the authority granted to INMD herein, INMD and
FCI agree that FCI shall retain the full authority to direct all of the
medical, professional, and ethical aspects of its medical practices;
11.1.3 Any powers of FCI not specifically vested in INMD by the terms
of this Agreement shall remain with FCI;
11.1.4 FCI shall, at all times, be the sole employer of the Physician
Employees, the Other Professional Employees required by law to be employees
of FCI and all other professional personnel engaged by FCI in connection
with the operation of its medical practice at the Facilities, and shall be
solely responsible for the payment of all applicable federal, state or
local withholding or similar taxes and provision of workers' compensation
and disability insurance for such professional personnel that are employees
of FCI;
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11.1.5 No party shall have the right to participate in any benefits,
employment programs or plans sponsored by the other parties on behalf of
the other parties' employees, including, but not limited to, workers'
compensation, unemployment insurance, tax withholding, health insurance,
life insurance, pension plans or any profit sharing arrangement;
11.1.6 In no event shall any party be liable for the debts or
obligations of any other party except as otherwise specifically provided in
this Agreement; and
11.1.7 Matters involving the internal agreements and finances of FCI,
including but not limited to the distribution of professional fee income
among Physician Employees and Other Professional Employees who are
providing professional services to patients of FCI, and other employees of
FCI, disposition of FCI property and stock, accounting, tax preparation,
tax planning, and pension and investment planning (and expenses relating
solely to these internal business matters), hiring and firing of
physicians, decisions and contents of reports to regulatory authorities
governing FCI and licensing, shall remain the sole responsibility of FCI
and the individual Physician-Stockholder(s).
11.2 FORCE MAJEURE. No party shall be liable to the other parties for
failure to perform any of the services required under this Agreement in the
event of a strike, lockout, calamity, act of God, unavailability of supplies, or
other event over which such party has no control, for so long as such event
continues and for a reasonable period of time thereafter, and in no event shall
such party be liable for consequential, indirect, incidental or like damages
caused thereby.
11.3 EQUITABLE RELIEF. Without limiting other possible remedies available to
a non-breaching party for the breach of the covenants contained herein,
including the right of INMD to cause FCI to enforce any and all provisions of
the employment agreements described in Section 4.3 hereof, injunctive or other
equitable relief shall be available to enforce those covenants, such relief to
be without the necessity of posting bond, cash or otherwise. If any restriction
contained in said covenants is held by any court to be unenforceable or
unreasonable, a lesser restriction shall be enforced in its place and remaining
restrictions therein shall be enforced independently of each other.
11.4 PRIOR AGREEMENTS; AMENDMENTS. This Agreement supersedes all prior
agreements and understandings between the parties as to the subject matter
covered hereunder, and this Agreement may not be amended, altered, changed or
terminated orally. No amendment, alteration, change or attempted waiver of any
of the provisions hereof shall be binding without the written consent of all
parties, and such amendment, alteration, change, termination or waiver shall in
no way affect the other terms and conditions of this Agreement, which in all
other respects shall remain in full force.
11.5 ASSIGNMENT; BINDING EFFECT. This Agreement and the rights and
obligations hereunder may not be assigned without the prior written consent of
all of the parties, and any attempted assignment without such consent shall be
void and of no force and effect, except that
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INMD may assign this Agreement to any subsidiary or affiliate of INMD without
the consent of the other parties and FCI may assign this Agreement to a newly
created Subchapter S corporation that the Physician-Stockholders anticipate
creating and into which FCI will be merged. The provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties' respective
heirs, legal representatives, successors and permitted assigns.
11.6 WAIVER OF BREACH. The failure to insist upon strict compliance with
any of the terms, covenants or conditions herein shall not be deemed a waiver of
such terms, covenants or conditions, nor shall any waiver or relinquishment of
any right at any one or more times be deemed a waiver or relinquishment of such
right at any other time or times.
11.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, irrespective of the principal
place of business of the parties hereto. Any and all claims, disputes, or
controversies arising under, out of, or in connection with this Agreement or any
breach thereof, except for equitable relief sought pursuant to Section 11.4
hereof, shall be determined by binding arbitration in the State of Illinois,
County of Xxxx (hereinafter "Arbitration"). The party seeking determination
shall subject any such dispute, claim or controversy to either (i)
JAMS/Endispute or (ii) the American Arbitration Association, and the rules of
commercial arbitration of the selected entity shall govern. The Arbitration
shall be conducted and decided by three (3) arbitrators, unless the parties
mutually agree, in writing at the time of the Arbitration, to fewer arbitrators.
In reaching a decision, the arbitrators shall have no authority to change or
modify any provision of this Agreement, including any liquidated damages
provision. Each party shall bear its own expenses and one-half the expenses and
costs of the arbitrators. Any application to compel Arbitration, confirm or
vacate an arbitral award or otherwise enforce this Paragraph shall be brought in
the Courts of the State of Illinois or the United States District Court for the
Northern District of Illinois, to whose jurisdiction for such purposes FCI and
INMD hereby irrevocably consent and submit.
11.8 SEPARABILITY. If any portion of the provisions hereof shall to any
extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such portion or provisions in circumstances other than those in
which it is held invalid or unenforceable, shall not be affected thereby, and
each portion or provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law, but only to the extent the same continues to
reflect fairly the intent and understanding of the parties expressed by this
Agreement take as a whole.
11.9 HEADINGS. Section and paragraph headings are not part of this
Agreement and are included solely for convenience and are not intended to be
full or accurate descriptions of the contents thereof.
11.10 NOTICES. Any noticeor other communication required by or which may be
given pursuant to this Agreement shall be in writing and mailed, certified or
registered mail, postage prepaid, return receipt requested, or overnight
delivery service, such as Fedex or Airborne Express,
- 20 -
prepaid, and shall be deemed given when received. Any such notice or
communication shall be sent to the address set forth below:
11.10.1 If for INMD at:
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxx, President
With a copy to:
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 000000-0000
Attention: Xxxxxx Xxxxx, General Counsel
11.10.2 If for FCI at:
Fertility Centers of Illinois, S.C.
0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, M.D., President
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Any party hereto, by like notice to the other parties, may designate such
other address or addresses to which notice must be sent.
11.11 ENTIRE AGREEMENT. This Agreement and all attachments hereto and the
Asset Purchase Agreement represent the entire understanding of the parties
hereto with respect to the subject matter hereof and thereof, and cancel and
supersede all prior agreements and understandings among the parties hereto,
whether oral or written, with respect to such subject matter.
11.12 NO MEDICAL PRACTICE BY INMD. INMD will not engage in any activity
that constitutes the practice of medicine, and nothing contained in this
Agreement is intended to authorize INMD to engage in the practice of medicine or
any other licensed profession.
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11.13 CONFIDENTIAL INFORMATION.
(a) During the initial term and any renewal term(s) of this Agreement, the
parties may have access to or become acquainted with each other's trade secrets
and other confidential or proprietary knowledge or information concerning the
conduct and details of each party's business ("Confidential Information"). At
all times during and after the termination of this Agreement, no party shall
directly or indirectly, communicate, disclose, divulge, publish or otherwise
express to any individual or governmental or non-governmental entity or
authority (individually and collectively referred to as "Person") or use for its
own benefit or the benefit of any Person any Confidential Information, no matter
how or when acquired, of another party. Each party shall cause each of its
employees to be advised of the Confidential nature of such Confidential
Information and to agree to abide by the confidentiality terms of this
Agreement. No party shall photocopy or otherwise duplicate any Confidential
Information of another party without the prior express written consent of the
such other party except as is required to perform services under this Agreement.
All such Confidential Information shall remain the exclusive property of the
proprietor and shall be returned to the proprietor immediately upon any
termination of this Agreement.
(b) Confidential Information shall not include information which (i) is or
becomes known through no fault of a party hereto; (ii) is learned by a party
from a third-party legally entitled to disclose such information; or (iii) was
already known to a party at the time of disclosure by the disclosing party.
(c) In order to minimize any misunderstanding regarding what information is
considered to be Confidential Information, INMD or FCI will designate at each
others request the specific information which INMD or FCI considers to be
Confidential Information.
11.14 INDEMNIFICATION.
11.14.1 INMD agrees to indemnify and hold harmless FCI, its directors,
officers, employees and servants from any suits, claims, actions, losses,
liabilities or expenses (including reasonable attorney's fees) arising out
of or in connection with any act or failure to act by INMD related to the
performance of its duties and responsibilities under this Agreement. The
obligations contained in this Section 11.15.1 shall survive termination of
this Agreement.
11.14.2 FCI agrees to indemnify and hold harmless INMD, its
shareholders, directors, officers, employees and servants from any suits,
claims, actions, losses, liabilities or expenses (including reasonable
attorney's fees) arising out of or in connection with any act or failure to
act by FCI related to the performance of its duties and responsibilities
under this Agreement. The obligations contained in this Section 11.15.2
shall survive termination of this Agreement.
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11.15 FINDER'S FEE. For any established physician practice in the States of
Illinois, Indiana, Iowa, Michigan and Wisconsin, after date of this Agreement
and during the first five (5) years hereof, that FCI or one of its
Physician-Stockholders introduces to INMD as a prospect for a management
agreement ("Prospect") and such Prospect enters into a management agreement with
INMD, FCI shall be eligible for a finder's fee of 2% of the Prospect's annual
Revenues for each of the first 3 years of the management agreement; provided,
the Prospect enters into a management agreement for not less than ten (10)
years.
11.15.1 The finder's fee provided for in Section 11.15 shall not apply
with respect to any management agreement between Xx. Xxxxxx Xxxxx and INMD.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
INTEGRAMED AMERICA, INC.
By:______________________________________
XXXXXXX XXXXX, PRESIDENT
FERTILITY CENTERS OF ILLINOIS, S.C.
BY:_______________________________________
XXXXX X. XXXXXXX, M.D., PRESIDENT
