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EXHIBIT 10.9
SERVICES AGREEMENT
THIS SERVICES AGREEMENT, entered into as of the 10th day of March
1996, is by and between VISION 21, INC. ("Vision 21" or "Company") and THE BSM
CONSULTING GROUP ("BSM").
WHEREAS, BSM is in the business of providing consulting services to
healthcare providers to assist such providers with strategic planning and
management development; and
WHEREAS, Vision 21 desires to obtain such services from BSM and BSM
desires to provide such services to Vision 21, all upon the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements set forth
herein, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
Section 1. Services to be Provided. BSM agrees to provide the
following consulting services to Vision 21 throughout the term of this
Agreement:
(a) fully develop Vision 21's physician practice
management in accordance with Vision 21's business plan;
(b) work with Vision 21 to recruit, develop and support
its corporate management team;
(c) develop an infrastructure for Vision 21's regional
management team;
(d) develop systems and protocols for practice
integration planning;
(e) coordinate merger and acquisition activity with
business development and regional administrative teams;
(f) develop plans for and execute regional consolidation
of affiliated practices;
(g) develop business plans for regional delivery systems
in conjunction with regional administrative teams and affiliated practice
physicians;
(h) assist in physician recruitment as necessary;
(i) develop medical staff compensation and succession
plans for physician affiliates; and
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(j) perform such other services as may from time to time
be agreed to by the parties.
Section 2. Term. This Agreement shall remain in effect for a
period of five (5) years; provided, however, it may be sooner terminated by the
Company or BSM "with cause" upon prior written notice describing the basis
therefor. For purposes of this Agreement termination by the Company "with
cause" shall mean any of the following: (i) a breach of any material term of
this Agreement by BSM which breach remains uncured after thirty (30) days
notice thereof; or (ii) the filing of a petition in bankruptcy by or against
BSM or if BSM becomes insolvent, makes an assignment for the benefit of
creditors or generally becomes unable to pay its debts as they become due. A
termination by BSM "with cause" shall mean any of the following: (i) a breach
of any material term of this Agreement by the Company which remains uncured
after thirty (30) days notice thereof; (ii) the failure of the Company and BSM
to agree on compensation after the first year of this Agreement; or (iii) the
filing of a petition in bankruptcy by or against the Company or if the Company
becomes insolvent, makes an assignment for the benefit of creditors or
generally becomes unable to pay its debts as they become due. In the event of
a termination of this Agreement by the Company with cause, the Company shall be
obligated to pay BSM only such compensation that is due through the date of
termination.
Section 3. Staffing. The services to be rendered pursuant to
this Agreement will be provided by BSM employees and other individuals to be
specifically retained from time to time by BSM for the performance of this
Agreement. All such employees and other individuals shall be subject to the
approval of Vision 21. Vision 21 agrees to make members of its staff available
upon the request of and as reasonably needed by BSM to assist BSM in carrying
out its responsibilities hereunder.
Section 4. Compensation. As compensation for the services
rendered by BSM during the first year of this Agreement, Vision 21 agrees to
pay BSM the total sum of $453,040. Vision 21 will be billed a portion of such
sum on a monthly basis in accordance with the Invoice Schedule annexed hereto
as Exhibit 1. Payment shall be due thirty (30) days from the date of receipt
of invoice. The parties agree to negotiate in good faith the compensation to
be payable to BSM throughout the remaining term of this Agreement. Such
compensation shall be determined by the services to be rendered by BSM and the
rates then charged by BSM to other corporate clients for comparable services.
BSM's Federal Tax ID number is 00-0000000. The parties agree that BSM
is an independent contractor and, as such, shall be responsible for the payment
of all federal, state and local withholding, income and unemployment taxes or
charges due or assessed against all compensation paid hereunder.
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Section 5. Confidentiality.
(a) BSM acknowledges that, in the course of providing
services hereunder, BSM staff will learn certain confidential information about
Vision 21's business. BSM agrees that it will keep all such information
strictly confidential, and that it will cause its employees, contractors,
advisors and agents to do the same.
(b) Vision 21 acknowledges that the written materials,
techniques, systems and strategies which may be suggested to Vision 21 by BSM
during the term of this Agreement are confidential and proprietary trade
secrets of BSM. Vision 21 agrees that it will not sell, transfer or otherwise
disclose such information to any third party without BSM's written consent.
Vision 21 further agrees that it will keep all such information strictly
confidential, and that it will cause its employees, contractors, advisors and
agents to do the same.
(c) The parties acknowledge that the provisions of
paragraphs (a) and (b) of this Section 5 shall not apply to any information
which (i) had been rightfully in the possession of the recipient prior to its
disclosure to the recipient; (ii) had been in the public domain prior to its
disclosure to the recipient; (iii) has become part of the public domain by
publication or by any other means except an unauthorized act or omission on the
part of the recipient; (iv) had been supplied to the recipient without
restriction by a third party who is under no obligation to maintain such
information in confidence; or (v) is required to be disclosed pursuant to the
order of a court of competent jurisdiction.
(d) The parties acknowledge that breach of this Section 5
by either party would result in substantial irreparable harm to the other
party, and that the extent of such act or harm could not be readily quantified.
Accordingly, the parties agree that, in the event either party breaches this
Section 5, the other party shall, in addition to any other remedies available
to it, be entitled to immediate injunctive relief from any court of competent
jurisdiction, without the need to prove damages or irreparable harm.
(e) The terms of this Section 5 shall survive the
expiration or termination of this Agreement.
Section 6. Excluded Services. Vision 21 acknowledges that it
may require other services, such as legal, accounting, reimbursement and
compliance, surgical center planning, licensure and certification services, and
that such services are not part of the consulting services being provided
pursuant to this Agreement. BSM will assist Vision 21 in arranging such
additional services if so requested at no additional charge.
Section 7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO SUCH STATE'S RULES
CONCERNING CONFLICTS OF LAWS. ANY RIGHT TO TRIAL BY JURY WITH
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RESPECT TO ANY CLAIM OR PROCEEDING RELATED TO OR ARISING OUT OF THIS AGREEMENT
IS WAIVED.
Section 8. Arbitration. Any dispute or disagreement arising
between the parties hereto in connection with this Agreement, which is not
settled to the mutual satisfaction of the parties within thirty (30) days (or
such longer period as may be mutually agreed upon) from the date that either
party informs the other in writing that such dispute or disagreement exists,
shall be submitted to arbitration in Tampa, Florida to a member of the American
Arbitration Association ("AAA") to be mutually appointed by the parties (or, in
the event the parties cannot agree on a single such member, to a panel of three
members selected in accordance with the rules of the AAA). The dispute or
disagreement shall be settled in accordance with the Commercial Arbitration
Rules of the AAA and the decision of the arbitrator(s) shall be final and
binding upon the parties and judgment may be obtained thereon in a court of
competent jurisdiction. The prevailing party shall be entitled to recover from
the other party the fees and expenses of the arbitrator(s) as well as
reasonable attorneys' fees, costs and expenses incurred by the prevailing
party.
Section 9. Entire Agreement. This Agreement, in conjunction
with the Advisory Agreement, reflects the entire agreement between the parties
hereto with respect to the subject matter hereof and no provision hereof may be
modified or waived unless such modification or waiver is in writing and is
signed by both of the parties hereto.
Section 10. Binding Effect. The provisions of this Agreement
shall be binding upon and inure to the benefit of Vision 21, BSM and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE BSM CONSULTING GROUP VISION 21, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxxxx
President President and
Chief Executive Officer
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EXHIBIT 1
INVOICE SCHEDULE
MONTH INVOICE AMOUNT
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April $10,000.00
May $40,000.00
June $40,304.00
July $40,304.00
August $40,304.00
September $40,304.00
October $40,304.00
November $40,304.00
December $40,304.00
January $40,304.00
February $40,304.00
March $40,304.00
TOTAL $453,040.00
