JOINT SERVICES AGREEMENT
THIS JOINT SERVICES AGREEMENT ("Agreement") is entered into on this 29th
day of May, 1997 (the "Effective Date"), by and among ALLIED HEALTH GROUP, INC.,
a Florida corporation ("Allied"), CAREADVANTAGE HEALTH SYSTEMS, INC., a Delaware
corporation ("CareAdvantage"), and CAREADVANTAGE, INC., a Delaware corporation
and the owner of one hundred percent of the capital stock of CareAdvantage
("Parent").
RECITALS
A. CareAdvantage anticipates entering into contracts with Blue Cross/Blue
Shield Plans (the "Blues Plans") throughout the United States pursuant to which
it will deliver specialized health care cost management services in the form of
physician management of specialty networks ("Specialty Physician Management
Services").
B. CareAdvantage lacks the expertise to deliver Specialty Physician
Management Services, and Allied is experienced in the delivery of Specialty
Physician Management Services. CareAdvantage intends to develop, over time and
with Allied's assistance, its own in-house expertise in Specialty Physician
Management Services.
C. Allied and CareAdvantage desire to establish a formal relationship with
respect to the performance of Specialty Physician Management Services.
D. Parent is willing to guarantee the performance of CareAdvantage
hereunder.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. RECITALS. All of the above recitals are true and correct.
2. TERM. This Agreement shall commence and become effective on the
Effective Date and shall continue in full force and effect for a period of three
years thereafter (the "Term"). The Term of this Agreement shall automatically
renew for additional three-year periods, unless either Allied or CareAdvantage
gives notice to the other of its intent not to renew the Agreement at least 90
days before the end of any such three-year period. In any event, this Agreement
may be terminated earlier pursuant to Section 3 hereof. Each twelve-month period
commencing upon the Effective Date of the Term or any anniversary thereof shall
be referred to herein as "Annual Period".
3. TERMINATION.
3.1 In General. This Agreement shall terminate:
3.1.1 Breach. If a party is in any material respect in
breach, default or violation of any provision of this Agreement and either (I)
fails to cure such material
breach, default or violation within 30 days after notice to do so (or within
said 30 days to commence such cure and thereafter diligently to prosecute such
cure to completion), or (ii) has been notified on two prior occasions of
breaches pursuant to this Subsection 3.1.1.
3.1.2 Failure to Perform. Without notice, upon the
suspension, revocation, or cancellation of the other party's right to perform
the services described herein under the laws of any applicable jurisdiction; or
by the placing or imposing f any restrictions or limitations by any governmental
authority having jurisdiction over the party, upon it so that it cannot engage
in the services described herein.
3.2 Payments Upon Termination.
3.2.1 Termination Without Cause. If this Agreement is
terminated other than as provided at Subsection 3.1, or if the Term of this
Agreement expires by its terms, Allied and CareAdvantage shall continue to
perform Specialty Physician Management Services for the Blues Plans for which
Allied or CareAdvantage is providing such services at the time of expiration of
this Agreement (the "Existing Blues Plans"), for so long as Allied or
CareAdvantage performs any Specialty Physician Management Services for the
Existing Blues Plans, whether pursuant to a contract in existence upon
termination of this Agreement or otherwise. Such services shall be performed
under the same terms and conditions as set forth in this Agreement; provided,
however, that Capitation Payments shall be allocated between Allied and
CareAdvantage as set forth at Subsection 7.1.3. In addition, the parties shall
have no obligation to one another with respect to Blues Plans for which neither
Allied nor CareAdvantage is providing such services at the time of expiration of
this Agreement.
3.2.2 Termination for Cause. If this Agreement is terminated
as provided at Subsection 3.1, the parties agree to negotiate in good faith, for
a period of 45 days from the date of termination of this Agreement, a settlement
of their respective obligations to one another for the Blues Plans for which
Allied or CareAdvantage is providing Specialty Physician Management Services at
the time of expiration of this Agreement. If the parties do not come to an
agreement on or before the end of such 45-day period, they shall submit such
matters to arbitration pursuant to Subsection 11.10. In addition, the parties
shall have no obligation to one another with respect to Blues Plans for which
neither Allied nor CareAdvantage is providing such services at the time of
expiration of this Agreement.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each of the parties
hereto represents, warrants and covenants to the other party (i) that this
Agreement constitutes its valid and binding obligation, enforceable against it
in accordance with its terms, except as enforceability hereof may be limited by
bankruptcy, insolvency, reorganization or other laws affecting generally the
enforcement of creditors' rights and except as the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses; (ii) that neither the execution nor delivery of this
Agreement or the performance by it of any of the covenants hereunder will
constitute a default under any contract, agreement or obligation to which it is
a party or by which it or any of its property is bound; (iii) that there are no
lawsuits, arbitrations, actions or other proceedings (equitable, legal,
administrative or otherwise) pending or (to the best of its knowledge)
threatened which could
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adversely affect the validity or enforceability of this Agreement or its
obligations or ability to perform its obligations hereunder; (iv) that no
consent, approval or authorization of, or notification to, any governmental
entity or any other person or entity is required in connection with the
execution, delivery or performance of this Agreement by it; (v) that it shall be
responsible for obtaining and maintaining any and all licensure for its
activities under this Agreement; (vi) that it will comply with all applicable
federal, state and local laws and regulations in performing its duties,
obligations and operations under this Agreement, including, without limitation,
all licensing laws and regulations and laws and regulations relating to Medicare
and Medicaid reimbursement; (vii) that it shall not during the Term fall under
any restriction prohibiting or limiting its ability to enter into or perform
under this Agreement; and (viii) that it shall not during the Term, and
thereafter, act in any matter inconsistent with the rights of the other party as
set forth in this Agreement or in a manner so as to prejudice the reputation of
the other party.
5. MUTUAL COVENANTS.
5.1 Specialty Physician Management Services. Allied and
CareAdvantage will perform Specialty Physician Management Services in a manner
that complies with the obligations under contracts with the Blues Plans.
Specialty Physician Management Services will include the Front Room Services and
the Back Room Services. For this purpose, "Front Room Services" means the
marketing and implementation of Specialty Physician Management Services,
including physician and plan contracting, mailings and required educational
services. "Back Room Services" includes customer services, claims status and all
claims processing, including generation of reports and required medical
information systems support. Allied and CareAdvantage will perform the work in
the following manner:
5.1.1 First Annual Period. During the first Annual Period,
Allied will perform all Specialty Physician Management Services under the Blues
Plans.
5.1.2 Second Annual Period. During the second Annual Period,
Allied will perform Specialty Physician Management Services for all but up to
two Blues Plans. CareAdvantage will have the option to provide Front Room
Services for up to two Blues Plans for which Allied has not provided Front Room
Services pursuant to Subsection 5.1.1 and, in such event, Allied will only
provide Back Room Services for such Blues Plans. Allied will also continue to
train CareAdvantage in Specialty Physician Management Services. CareAdvantage
may exercise its option by providing written notice to Allied no later than ten
business days prior to the effective date of any contract for Specialty
Management Services with any such Blues Plan. If written notice is not provided
to Allied as set forth herein, CareAdvantage shall be deemed to have waived its
option with respect to such Blues Plan.
5.1.3 Third Annual Period. During the third Annual Period,
Allied will perform Specialty Physician Management Services, except at
CareAdvantage's option, CareAdvantage may provide Front Room Services for any
Blues Plans for which Allied has not provided Front Room Services pursuant to
Subsection 5.1.1 or 5.1.2.
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5.2 Designating Party. Allied and CareAdvantage will mutually
agree on whether Allied, CareAdvantage or some other jointly controlled entity
should be the appropriate party to any contract to provide Specialty Physician
Management Services to any Blues Plan. Hereinafter, the party which has
contracted with a Blues Plan is sometimes hereinafter referred to as a
"Contracting Party."
5.3 Marketing Program. The parties agree that it is in their
mutual interest to create a high level of demand for Specialty Physician
Management Services through a professional planned promotion and marketing
campaign targeting the Blues Plans, which presents a uniform high quality image
with respect to Specialty Physician Management Services. The parties shall
jointly develop the promotion and marketing campaign.
5.4 Reporting Requirement. The parties agree that they will
report to, and maintain consistent communication with, the President and other
executives of each party and any other related entities, and otherwise conduct
the duties required pursuant to this Agreement in a manner that enhances and
promotes the transactions contemplated hereby.
5.5 Expenses. All marketing and sales expenses will be borne by
the parties in the same proportion as they share in the Service Fee (defined
below).
5.6 Modification of Compensation. Notwithstanding the provisions
of Section 7 below, the parties recognize that some of the products that are
being or will be offered to customers for Specialty Physician Management
Services may not fit the economic model envisioned at Section 7. In such a
situation, the parties agree that they will in good faith attempt to revise the
economic structure to create a budget tailored to the needs of the customer, and
to appropriately divide the Service Fee. If the parties cannot agree to any
modification of compensation hereunder, they shall submit their disputes to
arbitration pursuant to Subsection 11.10.
6. STATUS; INDEPENDENT CONTRACTOR. In fulfilling their obligations and
carrying out their duties and obligations under this Agreement, the parties
shall be independent contractors. Neither this Agreement nor the fulfillment of
any of its terms or obligations of the parties under this Agreement shall be
deemed or construed (i) to create any partnership, joint venture or
employer/employee relationship between the parties, or any affiliate, employee,
officer, agent or associate of a party, or (ii) to cause any party to be
responsible in any way for the debts, liabilities or obligations of any other
party.
7. COMPENSATION.
7.1 Capitation Payments. The Blues Plans will pay to the
Contracting Party payments, on a per member, per month basis ("Capitation
Payments"). The parties shall allocate, on a contract by contract basis, an
agreed upon percentage of the Capitation Payments as payment for Specialty
Physician Management Services (the "Service Fee"); provided, however, that in no
event shall the Service Fee for any Blues Plan be less than 9% of the Capitation
Payments. The remainder of the Capitation Payments shall be allocated to
physicians who rendered specialty health care services to Blues Plan enrolls
during the prior month, as a
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part of the Back Room Services. The Services fee shall be allocated between the
parties in the following manner:
7.1.1 First Annual Period. During the first annual Period
(i) 9% of the Capitation Payments will be allocated to Allied (2% for Front Room
Services and 7% for Back Room Services), and (ii) any remaining Service Fee
shall be divided equally between the parties.
7.1.2 Second Annual Period. During the Second Annual Period
(i) 2% of the Capitation Payments will be allocated for Front Room Services to
either Allied or CareAdvantage, as the case may be, (ii) 7% of the Capitation
Payments shall be allocated to Allied for Back Room Services, and (iii) any
remaining Service Fee shall be divided equally between the parties.
7.1.3 Third Annual Period. During the Third Annual Period
(i) 2% of the Capitation Payments will be allocated for Front Room Services to
either Allied or CareAdvantage, as the case may be, (ii) 7% of the Capitation
Payments shall be allocated to Allied for Back Room Services, and (iii) any
remaining Service Fee shall be divided equally between the parties.
7.2 Payment of Service Fee. The Contracting Party shall receive
Capitation Payments for the benefit of Allied, CareAdvantage and physicians who
render specialty health care services to Blues Plan enrollees and, accordingly,
shall have contractual and fiduciary obligations to manage Capitation Payments
in accordance with this Agreement. Any and all Capitation Payments shall be
deposited into a separate account maintained by the Contracting Party for the
purpose of receiving and disbursing Capitation Payments as set forth at
Subsection 7.1 (the "Account"). Disbursements from the Account, whether by
check, wire or otherwise, shall require the signature of one representative of
Allied and one representative of CareAdvantage. Funds shall be disbursed from
the Account, as set forth at Subsection 7.1, by federal funds wire transfer
within five business days after deposit of a check representing Capitation
Payments into the Account. The parties acknowledge that disbursement of
Capitation Payments in a timely manner is essential in order to, among other
things, compensate physicians who render specialty health care services to Blues
Plan enrollees.
7.3 Additional Payments.
7.3.1 Payments to Allied. Allied shall receive 20% of the
Profits earned by CareAdvantage during the life of the contract for the
provision of utilization management and/or disease management services to any
third party payor if Allied provides Substantial Assistance in obtaining such
business relationship for CareAdvantage. For purposes of this Agreement,
"Substantial Assistance" means bringing a party in contact with persons, whether
individuals or entities, that are instrumental in such party's obtaining a
business relationship with a third party payor within six months of the initial
contact. For purposes of this Agreement, "Profits" means the total fees received
by CareAdvantage or Allied, as applicable, for services rendered, less expenses
(including an allocable portion of corporate overhead)
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reasonably approved by the other party, but before interest, taxes, amortization
and extraordinary events.
7.3.2 Payments to CareAdvantage. CareAdvantage shall receive
20% of the Profits earned by Allied after deducting for the provision of
Specialty Physician Management Services to any third party payor (other than a
Blues Plan) if CareAdvantage provides Substantial Assistance in obtaining such
business relationship for Allied.
7.4 Exclusions from Capitation Payments. Notwithstanding the
provisions of Subsection 7.1 above, Capitation Payments under the following
Blues Plan contracts will be allocated as follows:
7.4.1 Allied has an existing written agreement with
Medigroup of New Jersey, Inc. d/b/a HMO Blue ("HMO Blue"), dated January 2, 1997
(the "HMO blue Agreement"). The HMO Blue Agreement was amended by letter
agreement dated March 1, 1997 by and among HMO Blue, Allied and CareAdvantage
(the Letter Agreement"). The Capitation Payments payable under the HMO Blue
Agreement, as amended by the Letter Agreement, will be excluded from the
Capitation Payments distributed above and will be allocated pursuant to the HMO
Blue Agreement and the Letter Agreement.
7.4.2 If Specialty Physician Management Services are
performed for Blues Plans in Rhode Island, Vermont or Maine, the remaining
Capitation Payments described at Paragraphs 7.1.1 (ii), 7.1.2 (iii) and 7.1.3
(iii) will be divided 60% to CareAdvantage and 40% to Allied.
7.4.3 If Specialty Physician Management Services are
performed for Blues Plans in North Carolina or Virginia, then, notwithstanding
Subsection 5.1, Allied will perform both Front and Back Room Services during the
life of the contract, but CareAdvantage will be paid by Allied 10% of the
Service Fee. Further, if CareAdvantage performs case management services for any
Blues Plans in North Carolina or Virginia, Allied will be paid by CareAdvantage
40% of the Profits earned by CareAdvantage for such services.
7.5 Books, Records and Reports. Disbursements from the Account
pursuant to Subsection 7.2, and other payments pursuant to Subsections 7.3 and
7.4, shall be accompanied by a detailed report setting forth computations with
respect thereto. If the receiving party (the "Receiving Party") shall disagree
with the computations set forth in any such report, the Receiving Party shall be
entitled to inspect and conduct an audit of the Contracting Party's books and
records with respect to Capitation Payments and other payments described in
Subsection 7.3 and 7.4, as applicable. The Contracting Party shall cooperate
with the Receiving Party and its representatives during the course of the
inspection and audit, and shall make its books and records with respect to such
payments available at its offices during normal business hours, or at such other
time and place as the parties shall agree, and in all cases without disruption
to the business of the Contracting Party. Upon completion of the inspection and
audit, the parties shall reconcile and promptly pay any amounts owed to one
another. If additional amounts owed to the Receiving Party exceed $25,000, the
Contracting Party shall pay all reasonable fees and expenses incurred by the
Receiving Party in connection with the Receiving
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Party. If the parties disagree with the results of the inspection and audit, or
if the Receiving Party determines not to conduct an inspection and audit, the
parties agree to negotiate in good faith, for a period of 45 days from the later
of the date of the report in dispute an the date of completion of the audit, a
settlement of payments owed to one another. If the parties do not come to an
agreement on or before the end of such 45-day period, they shall submit such
matters to arbitration pursuant to Subsection 11.10.
8. NON-DISCLOSURE, NON-SOLICITATION AND EXCLUSIVITY.
8.1 Non-Disclosure. The parties agree that all information
pertaining to the prior, current or contemplated businesses of the parties and
any affiliated entity constitutes the valuable and confidential assets of that
party. Such information includes, but is not limited to, information related to
trade secrets, management techniques and systems, medical review systems,
financial analyses, provider lists and information relating to providers,
supplier list, suppliers, client lists, marketing studies and plans, computer
software used by and/or developed by or for that party, financing techniques and
sources, profit and loss and other financial statements of that party or any
affiliated entity, this Agreement and any other confidential information which
is of special and unique value to that party or any affiliated entity. The
parties shall hold all such information in trust and confidence for the other
party or any affiliated entity and shall not use such information other than in
connection with the performance of duties under this Agreement. In addition, all
such information will not be disclosed to any third party without the prior
written consent of the other party; provided, however, that (i) any of such
information may be disclosed to those of a party's representatives who need to
know such information for the purpose of performing duties under this Agreement
(it being understood that (a) such representatives shall be informed by the
party of the confidential nature of such information and (b) shall be directed
by the party to treat such information confidentially,) and (ii) any disclosure
or other use of the information may be made to which the other party consents in
advance in writing. Each of the parties agree to be responsible for any breach
of this Agreement by any person to whom such party has provided such
information, or any portion thereof. If a party or any person to whom a party
has provided such information becomes legally compelled (by oral question,
deposition, interrogatory, request for documents, subpoena, civil investigative
demand or similar process) to disclose any such information, the party shall
promptly notify the other party of such requirement before any disclosure is
made so that the other party may seek a protective order or other appropriate
remedy and/or waive compliance with the terms of this Agreement. If such
protective order or other remedy is not obtained, or if the other party waives
compliance with the provisions hereof, the party agrees that only that portion
of the information which the party is legally required to disclose (as advised
by a written opinion of counsel) will be disclosed, and the party agrees to
exercise best efforts to obtain assurance that the information will be treated
confidentially upon disclosure. The parties and their representatives shall not
be liable for the disclosure to such tribunal unless such disclosure was caused
or resulted from a disclosure by the parties or their respective representatives
not permitted hereunder.
8.2 Non-Solicitation/Non-Competition. For a period of five years
after expiration or termination of this Agreement, CareAdvantage agrees that it
will not, directly or indirectly, other than pursuant to Subsection 3.2 of this
Agreement or with respect to any Blues Plan, provide, or have any interest,
whether as an employee, officer, director, shareholder,
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partner, contractor, consultant or advisor, in any person or entity that
provides, Specialty Physician Management Services to a third party payor or
physician network which has its principal office located in any state where
Allied provides Specialty Physician Management Services or is negotiating to
provide Specialty Physician Management Services at the time of expiration or
termination of this Agreement. In Addition, CareAdvantage agrees that, during
the Terms of this Agreement and for a period of five years thereafter, it will
not directly or indirectly (i) interfere with or disrupt or attempt to disrupt,
or take any action that could reasonably be expected to disrupt, any past or
present or prospective relationship, contractual or otherwise, between Allied
any third party payor, physician network, physician, supplier, sales
representative or employee of Allied; (ii) solicit for employment or attempt to
employ, or assist any other entity in employing or soliciting for employment,
either on a full-time or part-time or consulting basis, any employee who is or
was employed by Allied; or (iii) solicit any person to whom Allied has provided
or currently provides Specialty Physician Management Services, in any manner
which interferes or might interfere with such person's relationship with Allied,
or in any effort to obtain such person for any person or entity that is directly
or indirectly in competition with Allied.
8.3 Exclusivity. The parties agree to devote the requisite
ability, attention, energy, knowledge, loyalty, skills, talent and time to
properly develop, market and promote the Specialty Physician Management
Services. During the Term, the parties agree that they will not provide, or have
any interest, whether as an employee, officer, director, shareholder, partner,
contractor, consultant or advisor, in any person or entity that provides,
Specialty Physician Management Services, whether or not compensated, to any
Blues Plan except pursuant to this Agreement. Further, during the Term,
CareAdvantage agrees that it will not provide, or have any interest, whether as
an employee, officer, director, shareholder, partner, contractor, consultant or
advisor, in any person or entity that provides, Specialty Physician Management
Services to any third party payors other than the Blues Plans through this
Agreement.
8.4 Reasonableness of Restrictions. CareAdvantage acknowledges
that, during the Term of this Agreement, it will become acquainted with the
methods of performing and promoting Specialty Physician Management Services, and
each party acknowledges that it will acquire other confidential information
concerning the other party's business that could be used to the detriment of a
party. The parties further agree and acknowledge that the services being
rendered hereunder are of a special and original character that gives them
unique value, that the provisions of Section 8 are, in view of the nature of the
business of the parties, reasonable and necessary to protect the legitimate
interest of the parties, that a party's violation of any of the covenants or
agreements hereof would cause irreparable injury to the other party, that the
remedy at law for any violation or threatened violation thereof would be
inadequate and that non-offending party shall be entitled to temporary and
permanent injunctive or other equitable relief as it may deem appropriate
without the accounting of all earnings, profits, and other benefits arising from
or lost as a result of any such violation, which rights shall be cumulative and
in addition to any other rights or remedies available to such party. The parties
hereby agree that, if any such violation shall occur, the non-offending party
shall be entitled to commence an action for any such preliminary and permanent
injunctive relief and other equitable relief.
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8.5 Enforcement of Restrictions. The parties recognize that the
laws and public policies of the State of Florida and their interpretation may be
uncertain as to the validity and enforceability of certain of the provision
contained herein. It is the intention of the parties that the provisions of this
Agreement shall be enforced to the fullest extent permissible, but that the
unenforceability (or the modification to conform with such laws or public
policies) of any provision hereof shall not render unenforceable or impair the
remainder of this Agreement. Accordingly, if any provision of this Agreement
shall be deemed to be invalid or unenforceable, either in whole or in part, this
Agreement shall be deemed to delete or modify, as necessary, the offending
provision and to alter the balance of this Agreement in order to render the same
valid and enforceable to the fullest extent permissible as aforesaid.
Accordingly, if the provisions of Section 8 relating to the area of restriction,
period of time or scope, shall be deemed to exceed the maximum area, period of
time or scope which a court of competent jurisdiction would deem enforceable,
said are, period of time or scope shall for purposes of this Agreement, be
deemed to be the maximum area or period of time or scope which a court of
competent jurisdiction would deem valid and enforceable. The parties acknowledge
and agree that the covenants contained in Section 8 are a separate and essential
element of this Agreement, and that, but for the agreement of the other party
that are independent of any other provision in this Agreement. The existence of
any claim or cause of action of a party against the other party, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
enforcement of such covenants. The parties hereto hereby agree that the
provisions of Section 8 of this Agreement shall survive the termination of this
Agreement and shall survive the expiration or termination of the parties'
relationship with one another, whether pursuant to this Agreement or otherwise.
Furthermore, the provisions of Section 8 shall be enforceable by the successors
and permitted assigns of the parties.
9. INDEMNITY. Subject to the terms and conditions set forth below,
each party (as appropriate, the "Indemnifying Party") agrees to indemnify and
hold harmless the other party, and such party's affiliates, and their respective
officers, directors, employees and agents (as appropriate, the "Indemnified
Party"), from and against any and all liabilities, damages, claims,
deficiencies, assessments, losses, suits, proceedings, actions, investigations,
penalties, interest, costs and expenses, including without limitation,
reasonable fees and expenses of counsel (whether suit is instituted or not and,
if instituted, whether at trial or appellate levels) (collectively, the
"Liabilities"), arising from or in connection with any breach or violation by
the Indemnifying Party of any of the covenants or agreements contained in this
Agreement. This section shall not relieve either party from any liability it may
have for its own negligence, whether by act or omission, and the negligence,
whether by act or omission, of its employees, agents, officers, and directors.
The obligations and covenants contained in this section shall survive the
expiration or termination of this Agreement.
10. NOTICE. Any notice to be given hereunder shall be given in
writing. Notice shall be deemed to be given when delivered by hand to, or sent
by overnight delivery, confirmed facsimile, or postage prepaid, registered or
certified with return receipt requested addressed to:
If to Allied:
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000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx, M.D., President
With a copy to:
Broad and Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx, P.A.
If to CareAdvantage:
000-X, Xxxxx 0 Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxx, M.D., President
If to Parent:
000-X, Xxxxx 0 Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxx, President
With a copy in both cases to:
Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Or to such other address as either party may specify to the other in writing in
the manner set forth herein. Any such notice shall be effective when delivered
in person or sent by facsimile, one business day after being sent by overnight
delivery or three business days after being sent by registered or certified
mail, except that notices for changes of address shall be effective only upon
receipt.
11. MISCELLANEOUS.
11.1 Severability. Each provision hereof is severable from this
Agreement, and if one or more provisions hereof are declared invalid, the
remaining provisions shall nevertheless remain in full force and effect. If any
provision of this Agreement is so broad, in scope or duration or otherwise as to
be unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
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11.2 No Waiver. The failure to enforce at any time any of the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect the validity of this Agreement, or any
part thereof, or the right of either party thereafter to enforce each and every
such provision in accordance with the terms of this Agreement.
11.3 Entire Agreement. This Agreement contains the entire
agreement between the parties and supersedes any and all prior understandings,
agreements or correspondence between the parties, including the letter of intent
between the parties dated March 18, 1997. It may not be amended or extended in
any respect except by a writing signed by both parties hereto.
11.4 Governing Law; Venue. This Agreement has been executed and
delivered and shall be construed, governed by, and enforced and interpreted in
accordance with, the laws of the State of Florida. Venue of any actions to
enforce this Agreement shall be in a Court of competent jurisdiction in Miami,
Dade County, Florida.
11.5 Attorney's Fees and Costs. In the event of any action,
dispute, litigation or other proceeding, including appeals, with respect to this
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party all reasonable fees, costs and expenses of counsel incurred
in connection with such action, dispute, litigation or other proceeding, whether
or not litigation is instituted, and if instituted, at both trial and appellate
levels, in addition to any other relief to which the parties may be entitled.
11.6 Assignment. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof may be assigned or
delegated by either party without the prior written consent of the other party;
provided, however, that Allied may assign its rights and obligations under this
Agreement to Florida Specialty Network, Ltd., a Florida limited partnership.
11.7 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
11.8 Authority/Execution. Each signatory to this Agreement
represents and warrants that he possesses all necessary capacity and authority
to act for, sign and bind the respective entity or person on whose behalf he is
signing.
11.9 Legislative Amendments. During the Term of, and
notwithstanding any other provisions of, this Agreement, the parties hereto
agree that, if any federal, state or local government or agency passes, issues,
promulgates, or modifies any law, court decision, rule, regulation, standard or
interpretation ("Legislative Amendment"), the parties will abide by said
Legislative Amendment. Further, the parties agree that the Agreement shall be
construed as if amended to comply therewith, unless the parties agree that such
Legislative Amendment requires specific modification of this Agreement, in which
case the parties shall cooperate in negotiating the required modification(s).
If, within 60 days after passage of the
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Legislative Amendment, the parties are not able to agree that such a dispute
shall be submitted immediately after the said 60 day period to arbitration
pursuant to Subsection 11.10 of this Agreement or this Agreement may be
terminated in accordance with its terms.
11.10 Arbitration. Except as otherwise provided herein, any
controversy, dispute or disagreement arising out of or relating to this
Agreement, or the breach thereof, shall be settled exclusively by arbitration,
which shall be conducted in Miami, Florida in accordance with the Expedited
Procedures of the NHLA Alternative Dispute Resolution Service Rules of Procedure
for Arbitration, and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The parties shall be obligated
to continue their respective obligations in accordance with the terms and
conditions of this Agreement until the dispute under this section is resolved,
unless otherwise ordered by the arbitrator.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized representatives on the date first above written.
ALLIED HEALTH GROUP, INC.
By: /s/Xxxxx Xxxxxx, M.D.
--------------------------------------
Xxxxx Xxxxxx, M.D.
President/CEO
CAREADVANATAGE HEALTH SYSTEMS, INC.
By: /s/Xxxxxx X. Xxxxx, M.D.
--------------------------------------
Xxxxxx X. Xxxxx, M.D.
President
CAREADVANTAGE, INC.
By: /s/Xxxxxx X. Xxxxx
--------------------------------------
Xxxxxx X. Xxxxx
President/CEO
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